Diverging Common Law —Invercargill goes to the Privy Council
| Date | 01 January 1997 |
| DOI | http://doi.org/10.1111/1468-2230.00068 |
| Published date | 01 January 1997 |
CASES
Diverging Common Law — Invercargill goes to the
Privy Council
Robyn Martin*
The issue of liability in tort for defective premises has been very much in the
judicial spotlight in recent years. The clear rejection of tortious liability by the
House of Lords in Murphy vBrentwood
1
has not ended argument on whether or not
justice demands that a subsequent purchaser should have a remedy against a
negligent builder or local authority. In a united showing of defiance,
commonwealth courts
2
have refused to follow Murphy and have breathed new
life into Dutton vBognor Regis Urban District Council
3
and Anns vMerton
London Borough Council.
4
The Canadian and Australian approaches have been
examined in previous editions of the Review.
5
More recently the Privy Council has
been called upon to determine the relevance of Murphy to New Zealand in
Invercargill City Council vHamlin.
6
Invercargill presented an opportunity to the
Privy Council to reconcile conflicting commonwealth approaches and is therefore
of interest to both tort and public lawyers.
The facts of Invercargill are textbook. The plaintiff home owner discovered
cracks in his house which were found to result from inadequate foundations. An
action in contract by the plaintiff against the builders was legally sound but the
builders were by then out of business. The plaintiff then sought damages in tort
from the council responsible for inspection and approval of the foundations.
The Court of Appeal of New Zealand found on the basis of New Zealand
authority that a council in New Zealand owed to a house purchaser a duty of care in
the inspection of the house for the purpose of compliance with building
regulations, notwithstanding the contrary English position as expressed in Murphy.
The defendant council appealed to the Privy Council, arguing that the line of New
Zealand authority relied upon by the Court of Appeal had been based on the
English cases of Dutton and Anns. As those cases have now been found by the
House of Lords to be wrongly decided, then New Zealand authority was
intrinsically flawed.
The Modern Law Review Limited 1997 (MLR 60:1, January). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.94
*University of Hertfordshire.
1 [1990] 3 WLR 414.
2Winnipeg Condominium Corporation vBird Construction Co Ltd (1995) 121 DLR (4th) 193,
Supreme Court of Canada; Bryan vMaloney (1995) 128 ALR 163, High Court of Australia;
Invercargill City Council vHamlin [1994] 3 NZLR 513, New Zealand Court of Appeal.
3 [1972] 1 QB 373.
4 [1978] AC 728.
5 Hoyano (1995) 58 MLR 887; Martin (1996) 59 MLR 116.
6 [1996] 2 WLR 367.
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