Murphy v Brentwood District Council

JurisdictionUK Non-devolved
JudgeLord Mackay of Clashfern,Lord Keith of Kinkel,Lord Bridge of Harwich,Lord Brandon of Oakbrook,Lord Ackner,Lord Oliver of Aylmerton,Lord Jauncey of Tullichettle
Judgment Date26 July 1990
Judgment citation (vLex)[1990] UKHL J0726-1
CourtHouse of Lords
Docket NumberParliamentary Archives, HL/PO/JU/18/250
Date26 July 1990
Brentwood District Council

[1990] UKHL J0726-1

Lord Chancellor

Lord Keith of Kinkel

Lord Bridge of Harwich

Lord Brandon of Oakbrook

Lord Ackner

Lord Oliver of Aylmerton

Lord Jauncey of Tullichettle

Parliamentary Archives, HL/PO/JU/18/250



Lord Mackay of Clashfern L.C.

My Lords,


I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Keith of Kinkel and Lord Bridge of Harwich. They have comprehensively analysed the issues arising in this appeal and in consequence I am able to express my conclusion briefly.


We are asked to depart from the judgment of this House in Anns v. Merton London Borough Council [1978] A.C. 728 under the practice statement of 1966 (Practice Statement (Judicial Precedent) [1966] 1 W.L.R. 1234). That decision was taken after very full consideration by a committee consisting of most eminent members of this House. In those circumstances I would be very slow to accede to the suggestion that we should now depart from it. However, the decision was taken as a preliminary issue of law and accordingly the facts had not at that stage been examined in detail and the House proceeded upon the basis of the facts stated in the pleadings supplemented by such further facts and documents as had been agreed between the parties. Under the head "Nature of the damages recoverable and arising of the cause of action" Lord Wilberforce said, at p. 759:

"There are many questions here which do not directly arise at this stage and which may never arise as the actions are tried. But some conclusions are necessary if we are to deal with the issue as to limitation."


When one attempts to apply the proposition established by the decision to detailed factual situations difficulties arise and this was clearly anticipated by Lord Wilberforce when he said, at p. 760:

"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. It is sufficient to say that a cause of action arises at the point I have indicated."


That point was when damage to the house had occurred resulting in there being a present or imminent danger to the health or safety of persons occupying it.


As I read the speech of Lord Wilberforce the cause of action which he holds could arise in the circumstances of that case can only do so when damage occurs to the house in question as a result of the weakness of the foundations and therefore no cause of action arises before that damage has occurred even if as a result of information obtained about the fundations it may become apparent to an owner that such damage is likely.


The person to whom the duty is owed is an owner or occupier of the house who is such when the damage occurs. And therefore an owner or occupier who becomes aware of the possibility of damage arising from a defective foundation would not be within the class of persons upon whom the right of action is conferred.


As had been demonstrated in the speeches of my noble and learned friends, the result of applying these qualifications to different factual circumstances is to require distinctions to be made which have no justification on any reasonable principle and can only be described as capricious. It cannot be right for this House to leave the law in that state.


Two options call for consideration. The first is to remove altogether the qualifications on the cause of action which Anns held to exist. This would be in itself a departure from Anns since these qualifications are inherent in the decision. The other option is to go back to the law as it was before Anns was decided and this would involve also overruling Dutton v. Bognor Regis Urban District Council [1972] 1 Q.B. 373.


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. For this House in its judicial capacity to create a large new area of responsibility on local authorities in respect of defective buildings would in my opinion not be a proper exercise of judicial power. I am confirmed in this view by the consideration that it is not suggested, and does not appear to have been suggested in Anns, that the Public Health Act 1936, in particular Part n, manifests any intention to create statutory rights in favour of owners or occupiers of premises against the local authority charged with responsibility under the Act. The basis of the decision in Anns is that the common law will impose a duty in the interests of the safety and health of owners and occupiers of buildings since that was the purpose for which the Act of 1936 was enacted. While of course I accept that duties at common law may arise in respect of the exercise of statutory powers or the discharge of statutory duties I find difficulty in reconciling a common law duty to take reasonable care that plans should conform with byelaws or regulations with the statute which has imposed on the local authority the duty not to pass plans unless they comply with the byelaws or regulations and to pass them if they do.


In these circumstances I have reached the clear conclusion that the proper exercise of the judicial function requires this House now to depart from Anns in so far as it affirmed a private law duty of care to avoid damage to property which causes present or imminent danger to the health and safety of owners, or occupiers, resting upon local authorities in relation to their function of supervising compliance with building byelaws or regulations, that Dutton v. Bognor Regis Urban District Council should be overruled and that all decisions subsequent to Anns which purported to follow it should be overruled. I accordingly reach the same conclusion as do my noble and learned friends.


I should make it clear that I express no opinion upon the question whether, if personal injury were suffered by an occupier of defective premises as a result of a latent defect in those premises, liability in respect of that personal injury would attach to a local authority which had been charged with the public law duty of supervising compliance with the relevant building byelaws or regulations in respect of a failure properly to carry out such duty.

Lord Keith of Kinkel

My Lords,


This appeal raises directly the question whether Anns v. Merton London Borough Council [1978] A.C. 728 was in all respects correctly decided.


The facts are that over a period ending in 1969 a concern called ABC Homes constructed an estate of 160 dwelling houses on a site in Brentwood. Two of these houses, nos. 36 and 38 Vineway, were built over filled ground upon a concrete raft foundation. The raft was designed by a firm of civil engineers called Grahame Rudkins Associates. The design, which included certain steel reinforcement, was submitted to the appellant council, together with supporting calculations, for approval under section 64 of the Public Health Act 1936. The council, whose building control staff did not include any persons qualified to judge the suitability of the design, sought the advice of independent consulting engineers, Messrs. S. D. Mayer & Partners. Their advice was to the effect that the design was appropriate to the conditions and could properly be approved. The council accordingly approved it on 1 January 1969. The plaintiff purchased 38, Vineway from ABC Homes in 1970 and took up residence there. From 1981 onwards serious cracks started appearing in the internal walls of the house. In addition, wet patches appeared in the lawn. The plaintiff dug a hole in front of the house and exposed part of the foundation raft. He observed a crack in it about three- quarters of an inch wide at the bottom tapering to nothing at the top. The plaintiff contacted his insurance company, Norwich Union, which caused investigations to be made by consulting engineers. These revealed that the concrete raft had subsided differentially, so causing distortion and cracking. In July 1985 the gas pipe leading to a fire in the living room cracked and was replaced at a cost of £48. It was found that the soil pipe leading to the main drain had cracked and was leaking into the foundations. The plaintiff's neighbour at 36, Vineway also suffered damage to his house through the settlement, and made a claim on his insurers. Liability was not accepted, and accordingly the neighbour was unable to afford any contribution to the cost of remedial work to the joint structure of the two houses. The plaintiff's insurers, Norwich Union, were not prepared to pay the whole cost. The plaintiff therefore decided to sell his house and move elsewhere. He sold it in July 1986 for £30,000 to a builder who was aware of the structural defects, and who has since occupied it with his family without carrying out any remedial work. The value of the house had it been free from defect was agreed to have been at the time £65,000. Norwich Union paid the plaintiff £35,000 in settlement of his claim for subsidence damage. There was evidence that the cost of remedial work on the foundations of the house would have been in the region of £45,000. The damages claimed by the plaintiff against the council, in proceedings commenced in September 1983, included the sum of £35,000 and also the sum of £3,631.25 in respect of costs incurred in selling 38, Vineway and buying a new house and moving there, £98 for refitting carpets in the new house, and £48 for replacing the fractured gas pipe.


The case was tried before Judge Esyr Lewis Q.C. as official referee. He gave...

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