Anns v Merton London Borough Council

A duty of care is determined in two stages. A prima facie duty arises where sufficient proximity makes damage from carelessness reasonably foreseeable. The court must then consider reasons to negative, reduce or limit the duty, the protected class or recoverable damage.

A public authority exercising statutory functions may owe a parallel common law duty once conduct falls outside legitimate policy or discretion. A building authority which undertakes an inspection must take reasonable care to secure compliance with safety byelaws. The duty extends to owners and occupiers when actionable damage occurs. Recoverable loss may include the reasonable cost of making a dangerously defective dwelling safe. The cause of action accrues when the building presents a present or imminent danger to health or safety, rather than upon construction or conveyance.

The respondents held long leases of maisonettes in a block whose foundations were allegedly shallower than the approved plans and inadequate for the subsoil. Structural movement and cracking appeared in 1970. They claimed that the local authority had negligently failed to inspect the foundations or had inspected them without reasonable care.

Judge Edgar Fay QC determined a preliminary limitation issue against the respondents, holding that time ran from the first conveyances. The Court of Appeal allowed their appeal after Sparham-Souter v Town and Country Developments (Essex) Ltd [1976] 1 QB 858. The authority obtained leave to challenge both limitation and the existence of a duty of care.

The House considered whether statutory building-control powers generated a private-law duty towards owners and occupiers, and when a cause of action for damage to the dwelling accrued.

1. The appeal was dismissed unanimously. Lord Wilberforce delivered the leading speech. Lord Diplock, Lord Simon of Glaisdale and Lord Russell of Killowen agreed with it. Lord Salmon delivered a separate concurring speech.

2. Per Lord Wilberforce, a duty of care is approached in two stages. Sufficient proximity or neighbourhood, coupled with reasonable contemplation that carelessness may cause damage, creates a prima facie duty. The court must then consider whether policy or other considerations should negative, reduce or limit its scope, the protected class or recoverable damage.

3. Public bodies must be considered within their statutory setting. The distinction between policy and operations is one of degree. Resource allocation and the general scale of inspections were matters for the authority. Nevertheless, statutory powers did not exclude a parallel common law duty. In the case of a power, liability required proof that the challenged act or omission fell outside the ambit of a bona fide statutory discretion.

4. Per Lord Wilberforce, the authority had to give proper consideration to whether inspections should be undertaken. Failure to inspect could be actionable only if the authority improperly exercised that discretion and failed to take reasonable care in its acts or omissions to secure compliance with the byelaws. Lord Salmon considered that the legislation imposed no obligation to inspect any particular building and doubted that a total failure to inspect would give an individual a damages claim.

5. If the authority undertook an inspection, it owed owners and occupiers a duty to take reasonable care to secure that the builder did not cover foundations which contravened the byelaws. The builder retained primary responsibility. The authority did not warrant that the foundations were sound, and liability depended upon breach and causation. The pleaded reliance on departure from the approved plans, by itself, was misconceived.

6. The protected class comprised owners or occupiers when the damage occurred. It did not include a negligent building owner responsible for the loss. Per Lord Salmon, reliance upon the inspection was unnecessary because careful inspection would have caused the hidden defect to be corrected before construction continued.

7. Recoverable damage could include personal injury, damage to other property and physical damage to the dwelling itself. For the dwelling, recovery could encompass the reasonable cost of restoring it to a condition which no longer endangered health or safety and, where appropriate, displacement expenses.

8. The cause of action for damage to the dwelling arose when its condition created present or imminent danger to occupants’ health or safety, not upon construction, conveyance or merely the existence of a latent defect. On the pleaded facts, defects appeared in 1970 and proceedings began in 1972. The claims were therefore not barred by the Limitation Act 1939.

1. House of Lords: Dismissed the local authority’s appeal unanimously and upheld the Court of Appeal’s order setting aside the limitation ruling.
2. Court of Appeal: Allowed the respondents’ appeal by following Sparham-Souter v Town and Country Developments (Essex) Ltd [1976] 1 QB 858. It granted leave to appeal to the House of Lords.
3. Official referee: Judge Edgar Fay QC held on a preliminary issue that the claims were barred because time ran from the first conveyance of each property.