What then is the extent of the local authority's duty towards these persons?Although, as I have suggested, a situation of " proximity " existed betweenthe council and owners and occupiers of the houses, I do not think that adescription of the council's duty can be based upon the " neighbourhood "principle alone or upon merely any such factual relationship as " control"as suggested by the Court of Appeal. Cas. cit. In a few, " reliance " is of importance. Those builders had employed civil engineers to design the foundations. Already registered? But I think that the time has come when we can and should" say that it ought to apply unless there is some justification or valid" explanation for its exclusion. But manyother acts can be done without causing any harm to anyone—indeed may bedirected to preventing harm from occuring. Request a free trial. The duty ofcare if and when the inspection of the foundations was carried out was owedto all future tenants or assignees who might suffer damage as a result of thenegligent inspection. 3d 425, 551 P.2d 334, 131 Cal. 1027 said:—, " Donoghue v. Stevenson  AC 562 may be regarded as a mile-" stone, and the well-known passage in Lord Atkin's speech should I think" be regarded as a statement of principle. Lord Blackburn said: "... it is now thoroughly well established that no action will lie for doing" that which the legislature has authorised, if it be done without negilgence," although it does occasion damage . enumerated and the report continues " Whilst we are in some difficult in" arriving at the most likely of the above causes, all of them could have been" avoided had the foundations been taken down to an adequate depth" according to site conditions, and in our view this is where the fault lies ".At the trial, it will be for the court to decide, having heard the evidence,whether if the foundations had been down to 3 feet instead of only to 2 feet6 inches the damage would have been avoided, and if not whether the buildinginspector, had he used reasonable care and skill, should have recognised thatthe soil conditions required the foundations to have been taken down lowerthan 3 feet in order to achieve security. falls through ashoddily constructed floor and is seriously injured, just because the contractorhappens to have been the owner of the land upon which the house stands.If a similar accident had happened next door in a house which the contractorhad also negligently built on someone else's land, he would not be immune fromliability. It is for this reason that the law, as stated in some of the speeches in theEast Suffolk case, but not in those of Lord Atkin or Lord Thankerton, requiresat the present time to be understood and applied with the recognition that,quite apart from such consequences as may flow from an examination of theduties laid down by the particular statute, there may be room, once one isoutside the area of legitimate discretion or policy, for a duty of care, at commonlaw. I agree with it, and I wouldtherefore dismiss the appeal. Nor they did, and I daresay they never even knew about it. This does not make any sense. p. 1068). 2. that the question whether the defendant council by itself or its officers. However, by 1970 structural movement had begun to occur in the properties causing cracking to the walls and other damage, causing the properties to become dangerous. Anns v Merton London Borough Council  AC 728. The first defendants did not put in any defence but undertook to carry outcertain work. This claim was expressedas follows: " 5. . The claimant tenants in the flat … This immediately raisesthe important question. Judgement for the case Anns v Merton LBC. Lord Porter also referred to the celebrated passage in the speech of LordBlackburn in the Geddis case—see 3 App. The defendant Council was responsible for inspecting the foundations during the construction of the flats. It established a broad test for determining the existence of a duty of care in the tort of negligence called the Anns test or sometimes retronymically the two-stage test. I was at one time attracted by the simple proposition that the case of EastSuffolk Rivers Catchment Board v. Kent  AC 74 afforded a sufficientshield for the appellant authority, even upon the assumption that there wasan inspection of the foundations which was so carelessly conducted that itfailed to reveal that the proposed depth was only 2' 6" below ground level(which we are to assume was and should have been known to be inadequateto cope with swelling or shrinkage of the sub-soil) and not 3' (which we areto assume would have been adequate for that purpose). This test was introduced in the United Kingdom in the case of Anns v. Merton London Borough Council  2 All ER 492; it was adopted in Canada in City of Kamloops v. Byelaw 2 imposes an obligation upon a person who erects any building tocomply with the requirements of the byelaws. The case of Anns v. Merton London Borough Council (1978) should be used as a reference in the development of the principle of pure economic loss. It is sufficient to say that a cause of actionarises at the point I have indicated. We are not concerned at this stage with any issue relating toremedial action nor are we called upon to decide upon what the measure ofthe damages should be; such questions, possibly very difficult in some cases,will be for the court to decide. It is irrelevant to the existence of this duty of care whether what iscreated by the statute is a duty or a power: the duty of care may exist incither case. I certainly do not agree with the words in thatpassage " even if he has constructed the defects himself ". cit., p. 1027 per Lord Reid). LA negligently approved building plans and owed d a duty for subsequent defects. At any rate he could have made no report to the council asto their inadequacy; otherwise the council would or certainly should haveensured that the builders made the foundations conform with the bye-lawsbefore the council allowed the building to be erected upon them. House of Lords held building owner could recover damages. 4. Citation  A.C. 728. J'aurais cru qu'une fabrique de fiction était, par définition, plus libre et plus ouverte. Gorringe v Calderdale Metropolitan Borough Council  1 WLR 1057;  UKHL 15. Before the appeal came on, namely on 10 February 1976 theCourt of Appeal (Lord Denning, M.R., Roskill and Geoffrey Lane, L.JJ.) Building Act 1984. in the Canadian Supreme Court case of Rivtow Marine Ltd. v. WashingtonIron Works (1973) 6 W.W.R. By Journal Alerts on May 9, 2016. Examples of this areHedley Byrne where the class of potential plaintiffs was reduced to those shownto have relied upon the correctness of statements made, and Weller & Co. v.Foot and Mouth Disease Research Institute  1 Q.B. My Lords, for the reasons I have explained I would dismiss the council'sappeal from the order of the Court of Appeal setting aside the judgment ofHis Honour Judge Fay. Rather the question has to be approached in two stages. Once you create your profile, you will be able to: Claim the judgments where you have appeared by linking them directly to your profile and maintain a record of your body of work. The standard of care mustbe related to the duty to be performed—namely to ensure compliance withthe byelaws. Click here to remove this judgment from your profile. 1. that Dutton v. Bognor Regis was in the result rightly decided. Anns v Merton London Borough Council  AC 728. The claimant argued that this was due to the foundation of the flats being too shallow. This point has however little bearing on this appeal because the corres-pondence makes it plain that the council had certainly not decided againstexercising its statutory powers of inspection. Sign in to your account. said at page 468 " Now it is at present well established" English law that, in the absence of express contract, a landlord of an" unfurnished house is not liable to his tenant, or a vendor of real estate to" his purchaser, for defects in the house or land rendering it dangerous or" unfit for occupation, even if he has constructed the defects himself or is. " There are a wide varietyof instances in which a statement is negligently made by a professional manwhich he knows will be relied upon by many people besides his client, e.g. The local authority at the time of construction was the Mitcham BoroughCouncil: on 9th February 1962 they passed building plans for the block,which were deposited under the byelaws. Thus, to say that councils are under no duty to inspect, is not asufficient statement of the position. It also had financial repercussions. However before the appeal to this House came on, the second defendants(the council) presented a petition, asking for leave to argue the questionwhether the council was under any duty of care to the plaintiffs at all. Through the trilogy of cases in this House—, " aware of their existence ". Cas. Here, at the time the council elected to inspect thefoundations in the exercise of its statutory powers, no damage had occurrednor could thereafter have occurred if the building inspector had noticed theinadequacy of the foundations. I would leave open the case of users, whomight themselves have a remedy against the occupier under the OccupiersLiability Act 1957. I must now refer to the East Suffolk Rivers Catchment Board v. Kent A.C. 74 upon which the Council strongly relied in an attempt to negativeany duty of care on their part if and when they inspected the foundations.The East Suffolk case, which is not very satisfactory, is certainly a very differentcase from the present. I would hold that the council was under no obligation to exercise itspower to inspect the foundations before or after the building now occupiedby the plaintiffs was constructed, but that if it did exercise such powers ofinspection before the building was constructed, it was under a legal duty tothe plaintiffs to use reasonable care and skill in making the inspection. Anns v Merton London Borough Council  2 All ER 492 (overruled) The House of Lords approved Dutton and awarded damages to the purchaser of a house with dangerous defects against the local authority. Enter query below and click "search" or go for advanced search. Whether a local authority is under any duty of care towards owners. The emphasis is throughouton health and safety. They must, and in fact do, make their discretionary decisions responsiblyand for reasons which accord with the statutory purpose; c.f. and I have some doubt whetherthey differed from the views of Lords Romer and Porter which seem to haveturned largely on the facts of that particular case. It wouldappear that there had been exceptionally high tides as well as gales and thatthe Catchment Board had to cope with a number of similar problems withlimited funds and insufficient experienced men at their disposal. Lord Romer, however, observed at p. 97, "... it has been laid down time and again that, in exercising a power which" has been conferred upon it, a statutory authority is under an obligation" not thereby (i.e., by the exercise of the power) to inflict upon others any" damage that may be avoided by reasonable care.". I cannot, however, accept the propositionthat a contractor who has negligently built a dangerous house can escapeliability to pay damages for negligence to anyone who e.g. The defendant Council was responsible for inspecting the foundations during the construction of the flats. Lord Diplock in his speech gives this topic extended considerationwith a view to relating the officers' responsibility under public law to theirliability in damages to members of the public under private, civil law. Marks era of 'liability expansion' amidst a back drop of 'collectivist politics' in 60/70s. This House, by majority of 4-1 reached the oppositeconclusion. Later this council was supersededby the London Borough of Merton, the second defendants, which took overtheir duties and liabilities. Cavalier v. Pope AC 428, upon which the appellants also relied, is so far away from thepresent case that I express no opinion about it. Anns v Merton was not very significant to the development of the law of Duty of Care. resolve to inspect the foundations of aproportion of all buildings or of all buildings of certain types in its locality. Ann's V Merton-law of tort | Duty Of Care | Negligence: pin. Decided 12 May 1977; Citations:  AC 728;  2 All ER 492;  2 WLR 1024: Prior history: Judgment for defendant at first hearing on the basis that the plaintiffs were statute barred. Andas the building is intended to last, the class of owners and occupiers likely tobe affected cannot be limited to those who go in immediately after construction. Section: Legal Case Document Next: Watson and another v Croft Promosport Ltd Previous: Van Colle and another v Chief Constable of Her... Have you read this? The duty is to take reasonable care, no more, no less, to securethat the builder docs not cover in foundations which do not comply withbyelaw requirements. This matter was discussed in Button's case and is closelyconnected with that of the duty which may be owed and with thearising of the cause of action. And because it is not absolute, the necessarypremise for the proposition " if no duty to inspect, then no duty to take" care in inspection " vanishes. Stevenson. Important Paras. in Kent v. East Suffolk Rivera Catchment Board  1 K.B.319, 338): whether they get the balance right can only be decided through theballot box, not in the courts. Anns v Merton London Borough Council: Case Analysis. They did not appear in the hearings to be mentioned or onthis appeal. The immunity ofa landlord who sells or lets his house which is dangerous or unfit for habitationis deeply entrenched in our law. Pages 751-752. These are the sources and citations used to research Overrules Anns v merton. It was also contended on behalf of the appellants that the plaintiffs do noteven allege that they relied upon the inspection of the foundations by thecouncil. Precedent (Court of Appeal & Supreme Court) pin. On21st February 1972 writs were issued against both defendants—the separateproceedings were later consolidated. Further or in the alternative the said damage has been caused by" the negligence of the Second Defandants in allowing the First Defendants" to construct the said dwelling house upon foundations which were only" 2' 6" deep instead of 3 feet or deeper as required by the said plans," alternatively of failing to carry out the necessary inspections sufficiently" carefully or at all, as a result of which the said structural movement" occurred.". Add to My Bookmarks Export citation. It can safely be said that the more " operational " a power or dutymay be, the easier it is to superimpose upon it a common law duty of care. In my respectful opinionthe Court of Appeal was right when, in Sparham-Souter's case it abjured theview that the cause of action arose immediately upon delivery, i.e., conveyanceof the defective house. . Case Information. byelaw) dutyto notify the local authority before covering up the foundations: the localauthority has at this stage the right to inspect and to insist on any correction. agreed with that view; and I certainly do. Anns v Merton London Borough Council Date ;  Citation AC 728; 2 5, All ER 492WLR 1024, 75 LGR 55 Legislation. I also adopt what LordDenning M.R. 26 that a buildingcontractor owes a duty of care to the lawful user of a house and that accord-ingly the contractor is liable for any damage caused to a lawful user by thecontractor's negligence in constructing the house. in delivering the leadingjudgment in the Northern Ireland Court of Appeal. It isnot a common occurrence for foundations to give way, nor for their inspectionto be negligently carried out. It established a broad test for determining the existence of a duty of care in the tort of negligence called the Anns test or sometimes retronymically the two-stage test. Anns v Merton  AC 728. claimants were lessees of flats. Rptr. I cannot, however, accept the propositionthat a contractor who has negligently built a dangerous house can escapeliability to pay damages for negligence to anyone who e.g. To the extent that. The duty is owed to them—not of course to a negligent buildingowner, the source of his own loss. reconsidered and handsomely withdrew hisobiter dictum in Button's case to the effect that the period of limitation beganto run from that date when the foundations were badly constructed. TheCatchment Board attempted to repair the breach in the wall with oneman who had been in their employment for 18 months and was totally in-experienced in this kind of work and four labourers from the EmploymentExchange and with practically no equipment. Contact us. Anns and others v London Borough of Merton. See his speech at page 96.  1 Q.B. Our Customer Support team are on hand 24 hours a day to help with queries: They are under a duty to give properconsideration to the question whether they should inspect or not. The Public Health Act 1936, inparticular Part II, was enacted in order to provide for the health and safetyof owners and occupiers of buildings, including dwelling houses, by (interalia) setting standards to be complied with in construction, and by enablinglocal authorities, through building byelaws, to supervise and control theoperations of builders. It is impossible to think ofanyone more closely and directly affected by the inspection than the originaltenants of the maisonettes and their assignees. The second defendants filed a defence on 8th February 1973 and on 9thOctober 1974 the consolidated actions were transferred to an official referee.On 16th October 1975 an order was made. " 3 of 1994)  A-G Reference (No. Anns v Merton London Borough Council  AC 728 House of Lords The claimants were tenants in a block of flats.