NOTES OF CASES
| DOI | http://doi.org/10.1111/j.1468-2230.1973.tb01362.x |
| Date | 01 March 1973 |
| Published date | 01 March 1973 |
NOTES
OF
CASES
A
HOUSE BUILT
ON
INSECURE FOUNDATIONS
THE decision of the Court of Appeal in
Dutton
v.
Bognor Regis
Building
Co.
Ltd. and another'
is one of the most interesting in
the law of torts over the last decade. The case concerned some
property which had been built as part of a housing estate on the
site
of
an old rubbish tip. The local building by-laws contained
provisions relating to the design and construction of foundations,
which were required to be examined by a surveyor before being
covered up. In late
1959
a surveyor employed
by
the defendant
council visited the property, and he carelessly passed
it
as comply-
ing with the by-laws, whereas the foundations supporting the
inner walls were, in reality, quite inadequate. The building was duly
completed, and in December
1960
the plaintiff moved in as second
owner having purchased
it
from a
Mr.
Clark. Thereafter
it
began
to deteriorate quite rapidly with excessive subsidence leading to
cracks appearing in the walls and ceilings and
a
shifting staircase.
The builder paid
Mrs.
Dutton some
E625
ea:
gratia,
and she success-
fully sued the council to recover the balance
of
E2,740
representing
the cost of repairing the defects and the diminution in the value
of the pr0perty.l The council's appeal to the Court of Appeal was
dismissed, and it seems that there will be no further appeal to the
House of Lords.
The position
of
the builder
The liability
of
the builder was not fully argued before the
Court of Appeal, since the case had proceeded throughout on the
assumption that the vendor of real property incurred no liability
in tort even in respect of defects in the premises which arose from
his own negligent construction. This apparent immunity associated
with decisions such as
Bottomley
v.
Bannister
a
and
Otto
v.
Bolton
was naturally seized upon
by
the defendant council as furnishing
one of the reasons for its own alleged lack
of
liability,
It
would,
it
was said, be anomalous to hold the council liable when the
builder was immune. This submission provoked a variety
of
reactions. Stamp
L.J.
took the view that
it
was not Qpen
to
the
1
[1972] 1
Q.B.
873; [1972] 2
W.L.R.
299; [1972] 1
All
E.R.
463.
Subsequent
references are to the
last
report.
2
[1971] 2
All
E.R.
1003
(Cusack
J.).
The defendant council did not seek to
distinguish between the sum
of
$2,240
representing the cost of repair at
1964
prices (when the writ was issued), and the sum of
8600
representing tho
additional
loss
of
value attributable to the history
of
the house. See, however,
Sachs
L.J.
[1972] 1
All
E.R.
462, 484GJ.
4
[1936] 1
All
E.R.
960.
3ee also
Dunis
V.
Foots
[1940] 1
K.B.
116;
Traoers
v.
Glouoester
Corporation
119471 1
K.B.
71.
I99
3
193%
1
K.B.
468
(c
AJ.
200
THE
MODERN
LAW
REVIEW
Vor..
3G
court to question the builder's apparent lack of liability, but that
there was, in any event,
"
nothing illogical
or
anomalous in fixing
the [council] with a duty to which the [builder] is not subject."
5
Lord Denning adopted a different approach. Having agreed that
"
if the builder is not liable for the bad work, the council ought not
to be liable for passing it," he proceeded to demolish the objection
by holding that
Bottomley
v.
Bannister
was no longer good law.
There was, he said,
no
sensible distinction to be drawn between
''
a contractor who builds a house on another's
land
"-and who
enjoys no immunity 7-and
"
a speculative builder, who buys land
and himself builds
houses
on it for sale.
.
.
Since Sachs
L.J.
also held that
Bottomley
v.
Bannister
had not survived
Donoghue
v.
Stevenson
8
it can clearly no longer be relied upon with assurance.
It
is
submitted that this is a desirable development which would,
in effect, anticipate the changes
to
be introduced as from January
1974
when the Defective Premises Act
1972
becomes law.lo Whether
the builder should have been held liable on the actual facts of the
case is a point which raises further considerations discussed below.
Power,
duty, control and causation
One of the main submissions advanced by the defendant council
was, that, in the absence of
a
statutory
or
other duty to either
make the by-laws
or
to
inspect
or
approveY1l the plaintiff was seeking
to hold it liable for a mere failure to
so
exercise a power as to
alleviate a loss caused by the builder's faulty construction. The
lack of a remedy on this view of the facts was supported by
reference to the decision
of
the House of Lords in
East Suflolk
Catchment Board
v.
Kent,12
where it was further held that if a
power is exercised, the only obligation is not to add to the damage
which would have occurred anyway had no action been taken.ls
This submission was dealt with in several different ways. Accord-
ing to Lord Denning the functions of local authorities could not
simply be classified as
"
powers
"
or
"
duties." There was a middle
s
cf.
[1972]
1
All E.R.
462, 490E.
0
Cf.
ibid.
at p.
471B.
7
See
e.g. Sharpe
v.
E.
T.
Sweeting
d
Son Ltd.
[1963]
2
All
E.R.
455;
Gallagher
v.
McDoweZZ
Ltd.
[1961]
N.I.
26.
8
Cf.
[1972]
1
All E.R.
462, 472B.
9
Cf.
ibid.
at p.
479C-D.
10
The
Act implements, with
some
modifications, the proposals in the Law Com-
mission paper,
Civil Liability
of
Vendors and Lessors for Defective Premises,
Law
Com.
No. 40, 1970.
11
The
by-laws
were
made under the Public Health Act
1936,
8.
61
(1).
Building
by-laws
have now been supplanted
by
regulations made by the Minister, and,
by virtue
of
the Public
Health
Act
1961,
a.
4,
it
is
"
the function
of
every Local
Authority to enforce building regulations in their district."
Quaere
whether
the word
"
function
"
means duty in this context? Sachs L.J. was evidently
of
the opinion that it did (cf.
[1872]
1
All
E.R.
462, 485B),
whilst Lord DenniRg
agreed that,
"
The
word
'
function
'
may
mean
either
E
power
or
a
duty
:
cj.
ibid.
at p.
470C.
12
[1941 A C.
74;
[1940] 4
All
E.R.
527.
13
Cj.
[I9401
4
All
E.R.
627, 545A-D
(Lord Porter) and
ibid.
at p.
543D-F
(Lord
Romer).
See
also
Sheppard
V.
Glossop Corporation
[1921] 3
K.B.
132;
Geddis
v.
Bann Reservoir Proprietors
(1878) 3
App.Cas.
430.
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