Problem Question on Negligence and Duty of Care

This question is on negligence and it involves the following: duty of care; delictual liability in contractual relationship; duty owed by sellers and designers of a house to purchaser and defective design where there is no danger to health and safety.

Prima facie duty of care in the law of tort arises if there is sufficient proximity between the alleged wrong doer and the wronged party, such that the wrong doer might reasonably expect that carelessness may cause damage to the wronged party. Tort law is part of civil law and deals with disputes between private parties unlike property law or contract law which form part of the criminal law. Tort law is to provide restitution from someone who owes a duty of care to another person and can be legally held liable for that injury.

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Negligence is the most important tort in modern law and it is essentially concerned with compensating people who have suffered damage as a result of the carelessness of others.^[1] Negligence concerns breach of a legal duty, with the result that damage is caused to the claimant. Generally negligence protects against three different types of harm: personal injury; damage to property; and economic loss.^[2]

Tort law also known as the civil law of obligations establishes the circumstances in which a person whose interests have been harmed by another can be compensated through the civil courts.^[3] A tort is simply a wrong and tort law is the law of wrong doing or perhaps of wrongs.^[4] Sir Percy Winfield, saw negligence as a unifying thread for tort law, and he defined tort law as, ‘’the breach of an obligation imposed by the law’’.^[5] This definition aligns both tort and crime. Sir John Salmond defines tort as a, ‘’body of rules establishing specific injuries, uncoordinated by general principles’’.^[6] A more recent definition offered by Peter Birks, suggests that a tort is, ‘’the breach of a legal duty which affects the interests of an individual to a degree which the law regards as sufficient to allow that individual to complain on his or her own account rather than as a representative of society as a whole’’.^[7]

Tort law is a collection of causes of action each made up of three main components namely, an interest protected by law, some conduct which the law sanctions and a remedy or sanction by which the interest is protected by the law.^[8]

In the famous case of Donoghue v Stevenson, Lord Atkin made a ruling which became the corner stone of modern tort law: ‘’the liability for negligence, whether you style it such or treat it as in other systems as a species of ‘culpa’, is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way, rules of law arise which limit the range of complainants and the extent of their remedy. The rule is that you are to love your neighbour becomes in law: you must not injure your neighbour, and the lawyer’s question: who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions in question’’. ^[9]

Lord Atkin’s neighbour’s test still remains the basis on which civil liability for negligence is measured. This test has undergone some changes but when broken down is found to consist of three elements: duty, breach and damage.^[10]

The question of liability for negligently constructed buildings has always caused problems. At one time the law was that the tort of negligence did not apply to a builder of defective premises, however, it is clear from case law, that the tort of negligence applies to a builder of defective building, at least where a defect causes physical injury. See Murphy v Brentwood District Council (1991) 1 AC 398.

The expression builder is used in the sense of all persons involved in the construction and sale of buildings. This includes developers, builders, sub contractors, architects, surveyors, civil engineers and local authorities.^[11]

Parliament created a limited form of protection from builders with the Defective Premises Act 1972. Section 1 (1) of the Act relates only to dwelling houses and does not apply to commercial or industrial properties. The Section imposes on builders, sub-contractors, architects and other professional persons a three part duty that the work will be done in a workmanlike manner, proper materials will be used, and the house will be fit for human habitation.^[12] Most importantly, the doctrine of privity of contract does not apply and liability is strict in that fault does not have to be proved against the builder and the duty can not be excluded.^[13]

The main problem with Section 1 (1) of the Act is whether it includes it includes quality defects or is limited to ensuring that the dwelling is fit for human habitation. See Andrews v Schooling (1991) 3 All ER 723 and Bayoumi v Protim Services Limited (1996) EGCS 187.

In the 1970’s courts embarked on a massive extension of the builders liability in negligence. The courts created a duty of care imposed on builders and owed to foreseeable victims of their negligence.^[14] As the loss to an owner occupier was economic loss, the courts sidestepped the problems this presented by framing the duty in terms of not constructing a building which was a danger to the health and safety of the occupier.^[15] However from 1983, the courts started to back slide on the development they had created. The reason for this new development was that the courts frowned at allowing claims for economic loss in negligence action. The courts might also have been influenced by the rising premiums which had to be paid by anyone involved in the construction of buildings. This rise was as a result of successful actions brought under the negligence principle.^[16]

In the Scottish case of McLeod v Scottish Special Housing Association (1990) SLT 749, the proprietor of a house brought an action for damages against the former owner in respect of deterioration occurring to the steel clad exterior of the house several years after he had purchased the house. The claimant alleged that the deterioration was brought about as a result of design defect on improvement works carried out on the house on behalf of the former owners, before they sold the house. The case of the claimant was based on negligence in respect of the alleged defective design of the improvement works. The claimant further alleged that in the circumstances, it was proper to regard the steel skin and the insulation as separate properties. The defendants argued that the claimants claim was only for economic loss as they did not contend that these conducts had given rise to any health or safety issues to the occupant of the house or any danger to the property other than the house itself. The defendant also argued that there was no contractual term requiring that the property should meet a certain minimum standard of fitness.

The Court held inter alia that the builder was liable not only for personal injuries caused by his negligence in the process of building but also for damages actually caused by such negligence to property other than negligently manufactured building, such liability not restricted to circumstances giving rise to a danger to health and safety. The Court further held that there might be circumstances in which for the purpose of the application of the relevant principle of liability, one part of a complex structure might qualify to be treated as other property in relation to another element. However, the Court found in favour of the defendant because the claimant averments of fault and loss were lacking in specification.

In D and F Estates Limited v Church Commissioners for England (1988) 2 ALL ER 992, a company of builders under took construction work on a block of flats and then sub contracted the plastering work. Unfortunately, the sub contractor handled the plastering work negligently. Fifteen years later, the plaster became loose and needed replacement. The plaintiffs who were occupying a flat in the block of flats then sued the builders seeking the cost of remedial work that has already been done and the cost of future remedial work. The House of Lords held inter alia that in the absence of a contractual relationship between the parties, the cost of repairing a defect in the structure, which was discovered before the defect had caused personal injury or physical damage to other property, was not recoverable in negligence action. The cost of doing the repairs was economic loss which was not recoverable in a negligence action. The Court further held that if the plaintiff had suffered only economic damage then such a claim lay only in contract. Damage is only recoverable in tort where a defective product causes damage or injury other than to the defective product. This decision was greeted with much controversy and it led to the introduction of the idea of complex structure. If a building is regarded as a complex structure then, damage to one part of the structure caused by a hidden defect in another part, could be treated as damage to the other property.^[17] See Murphy v Brentwood District Council (1990) 2 All ER 908 and Nitrigin Eireann Teoranta v Inco Alloys Ltd (1992) 1 ALL ER 854.

In Baxall Securities Limited v Sheard Walshaw Partnership (2002) EWCA Civ 09, the court held that defective gutter was a patent defect and that if the defendant had carried out any reasonable inspection; they would have been able to reveal the problem. This non inspection by Baxall negated the duty of care or at least broke the chain of causation and the architect was found not to be liable.

There are all interesting and land mark cases. In McLeod’s case the court established that the builder of a house had a duty of care and therefore was liable for any damage caused by his negligence other than negligently manufactured building. The Court also established that once liability for negligence existed, the liability was not excluded because the person or whose property has been injured purchased the defective article under a contract. In the law of tort, damages are only awarded where a defective product caused damage or injury other than to the defective product itself. This was the basis of the Court’s decision in D and F Estates Limited v Church Commissioners for England. In that case, the plaster was falling off the wall and the plaintiff had only encountered economic loss. However in McLeod v Scottish Special Housing Association, the claimant was claiming that their building was a complex building and that the insulation was not part of the building and that it should be distinguished from other parts of the building. This case is different from other cases in which a structure or part of a structure has been found to be defective without any damage actually occurring to any structure or part of a structure other than the defective part it self.

Finally, in my view, I do not see how, the outer skin of a building can be distinguished from other parts of the building such as an insulation system. The claimants made the claim against the defendant as designers of the insulation system, which had been inserted in a pre existing building. The claimants alleged that the insulation had damaged other structures and that it was inappropriate in the circumstances to treat the house as one unit. The insulation was installed before the claimants bought the house and they purchased the house under a contract as one unit. It will be unreal and artificial to subdivide a house in such a way that the outer skin of the building is distinguished from other parts of the building. Usually people enter in to a contract to buy or sell a house as a unit; the fact that he insulation unit or any other unit was put in place later is irrelevant, once it is in place before the contract of sale. More over houses are built piece meal by piece meal over a period of time.

Bibliography

Cane, P (1996) Tort Law and Economic interests, Second Edition, Oxford University Press, Oxford

Cane, P (1997) The Anatomy of Tort law, Hart Publishing, Oxford

Cooke, J (2007) Law of Tort, Eighth Edition, Pearson, Harlow

Dugdale, A.M, Jones, M.A (2007) Clerk and Lindsell on Torts, Second Supplement to the Nineteenth Edition, Sweet and Maxwell, London

Elliott, C and Quinn (2007) Tort Law, Sixth Edition, Pearson, Harlow

Furmston, M (1986) The Law of Tort, Duckworth, London

Harlow, C (2005) Understanding Tort Law, Third Edition, Sweet and Maxwell, London

Hepple, Howarth and Matthews (2000) Tort: Cases and Materials, Butterworths, London

Howarth, D (1995) Text Book on Tort, Butterworths, London

Jones, M (2005) Text Book on Tort, Eighth Edition, Oxford University Pres, Oxford

Kidner, R (2006) Case Book on Torts, Oxford University Press, Oxford

Murphy, J (2007) Street on Torts, 12th Edition, Oxford University Press, Oxford

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Footnotes

^[1] Quinn and Elliott 2007) p.16

^[2] Quinn and Elliott 2007) p.16

^[3] Harlow (2005) p.1

^[4] Harlow (2005) p.1

^[5] Harlow (2005) p.1-2

^[6] Salmond and Heuston (1992) p.14 citied in Harlow (2005) p.6

^[7] Birks (1995) citied in Murphy (2007) p.1

^[8] Cane (1997) p.1

^[9] (1932) All ER Rep1

^[10] Harlow (2005) p.48

^[11] Cooke (2007) p.241

^[12] See section 1 (1) Defective Premises Act 1972

^[13] Cooke (2007) p.242

^[14] Cooke (2007) p.243

^[15] Cooke (2007) p.243

^[16] Cooke (2007) p.243

^[17] Cooke (2007) p.244