Oxley Plumbers Merchants v Davies & Anor

In a contribution claim, a contractor is liable in negligence only if the circumstances establish a duty of care owed to the injured person in respect of the same damage. A contractor engaged for a limited task is not automatically responsible for defects outside that task. Where the contractor discovers such a defect, the scope of any duty depends on matters including responsibility for the defect, the injured person’s knowledge, the parties’ ability to assess the danger, and any reliance on the contractor. A duty will not ordinarily arise where the contractor neither undertook nor was responsible for repairing the defect, and the injured person was equally able to take protective steps. The landlord’s continuing responsibility under the tenancy and the Defective Premises Act 1972 remained the operative cause of the accident.

Mr Davies, a tenant, was injured when a defective trap-door in a roof patio gave way. The landlords, Mr and Mrs Oxley, were held liable by His Honour Judge Krikler in Lincoln County Court under the tenancy agreement and section 4 of the Defective Premises Act 1972. The landlords brought contribution proceedings against SBG Felt Roofing Company Limited, which had been subcontracted to relay roof tiles but had not been engaged to repair the trap-door. The judge dismissed the contribution claim. The landlords appealed to the Court of Appeal. SBG also sought, conditionally, to challenge findings concerning contributory negligence, but that issue became unnecessary once the contribution appeal failed. The central issue was whether SBG owed Mr Davies a duty of care in negligence.

Appeal dismissed. The court upheld the county court’s dismissal of the contribution claim against SBG.

1. The claim arose under the Civil Liability (Contribution) Act 1978. SBG would be liable to contribute only if, had Mr Davies sued it, it would have been liable in negligence for the same damage. The applicable duty-of-care principles were those identified in Donoghue v Stevenson [1932] AC 562, 580 and Caparo Industries plc v Hickman [1990] 2 AC 605, 617.
2. SBG’s contractual role was limited to stripping and relaying the patio tiles. It was not engaged to inspect or repair the trap-door. Although its employees discovered that the trap-door was defective, Mr Davies also became aware of its condition when it was removed and could see the damage himself.
3. The existence and scope of a duty could not be determined solely by the employees’ expertise or by the seriousness of the defect. The court considered significant that SBG was not responsible for the repair, Mr Davies was equally able to take steps to protect himself, and there was no evidence that he relied on SBG to assess or remedy the danger. On those facts, no duty of care arose in the legal sense.
4. The criticism that the judge had underplayed Mr Andrews’s expertise did not undermine the conclusion. The conditional arguments concerning contributory negligence and permission to appeal against findings in the main claim therefore required no determination.
5. The court noted that Mr Oxley had known since September 1996 that the trap-door was defective and needed remedial work. His failure to arrange prompt repair was the operative cause of the accident, and the judgment below was upheld. The landlords were ordered to pay the respondents’ and claimant’s costs of the appeal.

• Lincoln County Court: His Honour Judge Krikler found the landlords liable to Mr Davies under the tenancy agreement and section 4 of the Defective Premises Act 1972, without deduction for contributory negligence, and dismissed the contribution claim against SBG.
• Court of Appeal (Civil Division): The appeal against dismissal of the contribution claim was dismissed. The court did not determine the conditional challenges concerning contributory negligence or permission to appeal.