Robinson v P E Jones (Contractors) Ltd

A builder may owe a client a concurrent duty of care in tort for economic loss arising from the negligent performance of building services. The duty is based on assumption of responsibility and reliance under the Hedley Byrne principle, and is not confined to professional designers or to design work. It may extend to workmanship where the contract imposes an express or implied obligation to exercise reasonable care and skill. A contract may, however, exclude the duty if its terms are effective and reasonable. A contractual provision limiting the purchaser’s remedies to an NHBC agreement was effective at common law and reasonable under the Unfair Contract Terms Act 1977. For limitation purposes, a gas service engineer carrying out routine servicing was not providing expert advice within section 14A(10)(b) of the Limitation Act 1980.

The claimant bought a new house from the defendant builder under an agreement made before construction was completed. The agreement required the defendant to complete the works efficiently and workmanlike and incorporated building conditions limiting liability for defects to the NHBC agreement. More than 12 years later, servicing revealed defective chimney flues. The claimant brought claims in contract and tort, relying on section 14A of the Limitation Act 1980.

The contract claim was accepted to be statute-barred. The preliminary issues were whether the builder owed a concurrent duty of care in tort for economic loss and, if so, whether the tort claim was within the extended limitation period.

1. Concurrent duty in principle. A builder can owe a client a concurrent duty of care in tort in relation to economic loss. The relevant principle is assumption of responsibility and concomitant reliance under Hedley Byrne v Heller, as explained in Henderson v Merrett. A contractual relationship involving an express or implied obligation to exercise reasonable care and skill may itself provide the necessary context.
2. The principle is not limited to professional persons, designers, information or advice. Building is a skilled activity involving judgment, and the duty may extend to physical workmanship as well as design. The critical distinction is between contractual obligations to use reasonable care and skill, which may attract concurrent liability, and strict contractual warranties such as fitness-for-purpose obligations, which do not thereby become tortious duties.
3. The agreement was more than a contract for the sale of a completed house. The defendant promised to construct the house in an efficient and workmanlike manner. The ordinary contractual relationship would therefore have generated a concurrent duty, subject to the contractual terms.
4. Clause 10 of the Building Conditions was construed as making the NHBC agreement the claimant’s sole source of rights and remedies for defects. It prevented the tortious duty from arising and, alternatively, used adequate words to exclude liability. The exclusion was potentially subject to the Unfair Contract Terms Act 1977, but was reasonable because the claimant retained wider NHBC contractual warranties and other remedies. The loss of the extended limitation period under section 14A did not make the clause unreasonable.
5. The claim consequently failed because the contractual exclusion meant that there was no tort claim to which section 14A could apply. Had a tortious duty existed, the claimant would not have had actual or constructive knowledge before September 2004. A routine gas service engineer was not providing expert advice within section 14A(10)(b), and the claimant was not reasonably expected to arrange regular servicing before a triggering indication that something was wrong.
6. Had regular servicing been reasonably required, servicing every two or three years, together with cleaning behind the fires, would probably have revealed the defects before December 2003. That alternative conclusion was conditional on a finding that earlier servicing should reasonably have been undertaken.

First-instance decision. The judgment records no earlier appellate decision in the same proceedings.