Brenda Vainker & Anor v Marbank Construction Limited & Ors

Under section 1 of the Defective Premises Act 1972, the statutory duty is directed to the outcome that a dwelling is fit for habitation when completed. Aesthetic defects and inconvenience alone will generally not establish unfitness, although defects must be assessed cumulatively and a latent risk of serious structural or safety failure may suffice.

Contractual and tortious claims remain subject to ordinary limitation rules. A net contribution clause may limit contractual or tortious liability, but cannot restrict liability arising under the Act because of section 6(3). In construction disputes, a claimant is not automatically required to accept a contractor’s proposed rectification. The question is whether reasonable steps to mitigate loss were available in the circumstances.

The claimants owned a newly constructed residential property. They brought claims against the contractor, Marbank Construction Limited, and the architect, SCd Architects Limited, alleging defective design, workmanship and inspection. Claims against other project participants had been settled or discontinued.

The principal issues concerned defects in brickwork, glazing, balustrades, finishes, services and other elements of the property; limitation; the scope of liability under the Defective Premises Act 1972; mitigation and causation; damages; and Marbank’s counterclaim for the final account and variations.

1. Disposition. The claims succeeded in part against Marbank and SCd. Marbank was liable for numerous breaches of contract, including defective brickwork, glazing, finishes and other workmanship. SCd was liable under the Defective Premises Act 1972 for failing to identify that toughened rather than toughened and laminated glass had been installed. Other allegations failed, including the claim that the stained brickwork rendered the dwelling unfit for habitation.
2. Defective Premises Act. Section 1 imposes a single duty directed to the outcome that the dwelling is fit for habitation when completed. The assessment is fact-sensitive. Relevant considerations include the aggregate effect of defects, risks to health and safety, serious non-transient inconvenience, and the possibility that a defect will cause deterioration during the building’s design life. Cosmetic defects do not themselves establish unfitness: paras [36]-[40], [191]-[209].
3. The stained brickwork was caused or contributed to by defective design and workmanship, particularly excessively recessed cavity trays and related construction defects. It was nevertheless an aesthetic defect, unsupported by evidence of permanent saturation, sulphate attack or structural risk sufficient to make the House unfit for habitation: paras [208]-[209], [233]-[247].
4. The non-laminated glass created an inherent safety risk and rendered the House unfit for habitation. SCd’s contractual net contribution clause could apply to contractual and tortious liability, but section 6(3) of the Act made it void insofar as it restricted liability arising under the Act: paras [286]-[308], [341]-[349].
5. There is no special construction-law rule requiring a claimant to give the contractor an opportunity to rectify defects. The defendant bears the burden of proving that reasonable mitigation steps were available. Mrs Vainker’s insistence that the glazing fixings also be investigated was reasonable, so her conduct did not break causation or amount to a failure to mitigate: paras [327]-[332].
6. Marbank’s contribution claim could not be determined informally by closing submissions. A Part 20 claim was required, although permission to bring one late would probably have been granted: paras [249]-[253]. Marbank’s final account was assessed at £1,300,073.75 before the agreed deduction for liquidated damages, subject to consequential matters: paras [675]-[811].