Defective Premises in UK Law

First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter—in which case a prima facie duty of care arises.

That is the framework within which the statutory hypothesis in section 4(4) must operate. Parliament did not, as it might have done, link the duty of care to a failure to remedy defects in any more general sense. If the defect which has caused the injury in respect of which a claim is made under section 4(1) of the 1972 Act is not a defect arising from want of repair, it cannot be a "relevant defect" for the purposes of that section.

Technically the old secure tenancy is, during the limbo period, no longer in existence and therefore neither the repairing covenants in the tenancy nor the Defective Premises Act 1972 apply. If the tenant has complied with the agreed conditions, there can be little doubt that the court would make the required order.

Faced with the choice I am of the opinion that it is relevant to take into account that Parliament has made provisions in the Defective Premises Act 1972 imposing on builders and others undertaking work in the provision of dwellings obligations relating to the quality of their work and the fitness for habitation of the dwelling.

In my respectful opinion the Court of Appeal was right when, in Sparham-Souter's case it abjured the view that the cause of action arose immediately upon delivery, i.e., conveyance of the defective house. We are not concerned at this stage with any issue relating to remedial action nor are we called upon to decide upon what the measure of the damages should be; such questions, possibly very difficult in some cases, will be for the court to decide.

If the same principle applies in the field of real property to the liability of the builder of a permanent structure which is dangerously defective, that liability can only arise if the defect remains hidden until the defective structure causes personal injury or damage to property other than the structure itself.

It is clear that in determining an employer's responsibility one has to look at all the circumstances of the case, including the place where the work is to be done, the nature of the building on the site concerned (if there is a building), the experience of the employee who is so despatched to work at such a site, the nature of the work he is required to carry out, the degree of control that the employer can reasonably exercise in the circumstances, and the employer's own knowledge of the defective state of the premises, as referred to in that last passage of the speech of Lord Denning.