Landlord and tenant — Important decision on the duty of care owed to tenants by landlords (including local authority landlords) who are ‘builder-owners’ responsible for the design and construction of the accommodation let — Action by tenant of council flat against local authority following an accident in the flat — Dangerous glass panel in internal wall of narrow passage — Tenant after stumbling over or attempting to avoid an obstruction tried to save himself from falling and put his hand through the thin glass of the panel, thereby sustaining substantial injuries — Flat, including panel, had been built to authority’s design — Tenant had previously pointed out to the housing department the possibility of danger — Appeal from decision in favour of tenant given by Judge Nance, sitting as a High Court judge — As there was no contractual liability and the conditions for a statutory claim under the Defective Premises Act 1972 were not present, the only possible cause of action must be based on a duty of care at common law — Wide-ranging review of authorities — Appeal raised questions as to whether the decision of the House of Lords in Cavalier v Pope defeated the tenant’s claim, whether it remained good law and, if so, whether it could be distinguished — Held, distinguishing Cavalier v Pope, that there was a difference between a ‘bare landlord’ and a ‘builder-owner’ — In the present case the local authority landlords, being their own architects and builders, owed the tenant a duty to take reasonable care in designing and constructing the flat, so that it would be reasonably safe when they let it to him — They were in breach of this duty and the judge had rightly found against them, although his formulation of the principle of liability was too wide — Appeal dismissed
This was an
appeal by the landlords, Liverpool City Council, from a decision in favour of
the tenant, John Rimmer, by Judge Nance sitting as a High Court judge. The
judge had awarded the tenant damages in respect of an accident sustained in his
council flat, the amount being agreed at £2,500 with interest. The flat was one
of a block of 24 in Boundary Street East, Liverpool.
C Rose QC and
J F Appleton (instructed by the City Solicitor, Liverpool) appeared on behalf
of the appellants; Michael Morland QC and P M Harris (instructed by S
Cornforth, of Liverpool Law Centre) represented the respondent.
Giving the
judgment of the court, STEPHENSON LJ said: This appeal arises out of an
accident which was thus described by Judge Nance in giving judgment for the
plaintiff on May 6 1982:
At about 9.30
in the evening of December 28 1975 the plaintiff was making his way from the
lounge to the kitchen. He was carrying a cup and saucer. The floor was somewhat
encumbered by toys and the little boy, who was still playing possibly with a
moving toy. The plaintiff at a point near to the lounge door stumbled or
tripped because of, or because of his endeavours to avoid, some obstruction on
the floor. He fell forward.
He put out his
left hand (the judge continued) to try to save or help himself and with quite
considerable force put his hand through a glass panel in front of him, thereby
sustaining quite substantial injuries to his left hand and wrist. For that
injury he claimed from the defendant council and received from the judge
damages which were agreed at £2,500 with interest.
The place
where the accident occurred was a flat which the plaintiff had taken from the
council on a weekly tenancy in May 1974. The flat was one of a block of 24 in
Boundary Street East, Liverpool, built by the council, through their direct
works department, in 1959 to the same design in all material respects. The
design and construction included the glass panel which cut the plaintiff’s
hand. That was a panel of glass which was translucent, not transparent, forming
part of an internal wall directly opposite the lounge or living-room door at a
height of 2 ft above the floor of a corridor or passage 2 ft 10 in wide. So the
glass across the passage was no more than 2 ft 10 in from the living-room door.
It was there to give light to the passage. It was 4 ft 3 in high and 2 ft wide;
and it was only one-eighth of an inch or 3 millimetres thick.
The original
project architect in the council’s architects’ department at one stage
specified Georgian wired glass for this feature; that is wired glass 1/4 in (6
mm) thick. But in 1959 at some stage the architect in charge altered the
requirement to pattern glass one-eighth in (3 mm) thick, and at the time of the
trial those flats which were available for inspection had these original thin
glass panels.
The plaintiff
gave evidence, which the judge accepted, that at the start of his tenancy he
complained to a technical officer with the council’s housing department of the
danger to his five-year-old son of the glass because of its thinness, but was
told it was standard and nothing could be done about it. That officer gave
evidence neither recalling nor disputing the plaintiff’s evidence, but stating
that he had never heard of any complaint by any other tenant of these 24 flats
about this glass feature or of any other such accident as the plaintiff’s.
The judge
considered first the danger and then the duty and we shall do the same. He
said:
I now consider
whether the installation of thinner glass brought about a dangerous or more
dangerous condition with a reasonably foreseeable risk of injury or greater
injury and whether, if so, the defendants ought to be adjudged to be at fault
for creating or, at the time of the letting to the plaintiff, allowing to
continue that danger or greater danger and accepting such risk or greater risk.
If appropriate I shall then have to consider the problem as to whether there
was a duty owed to the plaintiff in this regard.
To me it is
an elementary proposition of common sense that easily breakable glass presents
a risk of some, possibly serious, injury if a braking hand penetrates the
glass. I do not need an expert to tell me that and it is no surprise that all
the experts are agreed that there is an inherent risk of injury if glass is so
broken.
That does not
mean that it is always wrong to use such glass for a window or screen in any
building work. One must balance many factors.
He then went
on to consider the position of the glass, cost, the professional advice
available in 1959, the British Standards Institution’s Codes of Practice, and
the evidence of the plaintiff’s experts.
He concluded
that the 1959 architect had no code of practice to guide him on the safety of
glass but none the less:
. . . in 1959
there was a foreseeable risk that someone might stumble and put his hand
against this glass and break it. I reach this conclusion with the assistance of
the expert evidence but also because it seems to me that the narrow corridor,
the juxtaposition of lounge door and glass, the lowness of the glass, the lack
of any protective sill or any other protective device made the risk obvious,
and one which could so easily have been reduced by adopting the idea of the
original design architect for 1/4 inch (6 millimetres) Georgian wired glass. I
so consider that whoever changed the design, a servant of the defendants, was
at fault.
He went on to
look at the 1974 position when the council let the flat to the plaintiff and
concluded that an intelligent reading of the 1966 and 1972 codes of practice
would have called to the minds of the architects’ department the risk of danger
to anyone stumbling against this glass ‘unprotected as it was and low as it
was, and thin as it was’; the department were not relieved from reconsidering
the position in the light of after-gained information; the council were at
fault in letting to the plaintiff ‘a flat which they ought to have known
contained this foreseeably dangerous and easily substituted glass’.
These findings
were challenged in the notice of appeal and more faintly in Mr Rose’s argument
for the council. But they seem to us soundly based on the facts and the
evidence by a judge who carefully balanced all the relevant factors, and they
are therefore beyond challenge in this court. If there was a duty of care it
was broken. The real issue raised by this appeal is not negligence but duty.
Was there a duty of care?
On this
question of the council’s duty to the plaintiff we have heard interesting and
attractive arguments on both sides, and have been taken to a number of
well-known authorities, as was the judge. The duty for which the plaintiff
argued and which the judge imposed was a duty at common law. It was not alleged
that there was any
and 3 of the Defective Premises Act 1972, which came into force on January 1
1974 (section 7(2)). But any claim under section 1 was barred by section 1(5),
by which any cause of action the plaintiff had under the section was deemed to
have accrued in 1959; section 3 does not create a duty but preserves any
existing duty of care in relation to work which ‘is done’ — which does not
naturally mean ‘has been done’ before the Act came into force, like the
construction of this glass panel — from abatement by subsequent disposal of the
premises such as a letting (section 6(1)). Section 4, which the judge treated
as having been alleged, though it was not pleaded, was abandoned before trial
because the duty it imposes on a landlord is only a duty to take reasonable
care to see that the premises let are reasonably safe from personal injury (or
from damage to property) caused by a failure to carry out an obligation to
maintain or repair the premises (section 4(3)) and there was no such failure
here. There was apparently no such obligation and certainly no want of repair.
We shall have
to refer to that Act of 1972 again, but the judge was right to consider that
the only duty which could be owed to the plaintiff by the council was a duty of
care at common law. He was able to hold that there was such a duty, which he
formulated in this conclusion:
I have reached
the conclusion that the law today is that a landlord must apply his mind before
letting to a tenant to the question of whether the premises may be considered
to be reasonably safe. He must have in contemplation the reasonable use of the
premises by the proposed tenant, his family and his visitors. In contract he
may make exclusion clauses. That does not apply here.
In my
judgment, therefore, there was and is a legal duty on a landlord to take
reasonable steps to ensure that the premises are reasonably safe. For the
reasons I have set out I hold that this landlord, the defendants, failed in
their duty in 1959 or at the latest 1974. Therefore there is liability to the
plaintiff.
Mr Morland for
the plaintiff seeks to support that formulation. We have come to the conclusion
that it was not open to the judge, and is not open to any court below the
highest, to say that that is the law, however desirable that it should be, but
that Mr Morland is right in his alternative and less ambitious submission that
there was a legal duty on these landlords to take reasonable care to see
that this flat was reasonably safe for the plaintiff because they were both the
designers and the builders of this flat, and they failed in their duty by
designing and constructing a dangerous feature in this glass panel.
In 1906 the
House of Lords held that the wife of a tenant to whom a landlord had let a
dilapidated house unfurnished had no right of action against the landlord for
injuries caused by her falling through the dangerous floor; she knew of the
danger and she was not a party to the agreement to repair the floor which the
landlord’s agent had made with her husband: Cavalier v Pope
[1906] AC 428. Two years later the wife and family of a tenant who all
contracted typhoid fever from insanitary drains in a house in Scotland were
equally unsuccessful; the tenant had a claim on a contractual obligation to
repair implied by the law of Scotland, and it was settled; but the House
applied the principle common to the laws of Scotland and of England which Cavalier
v Pope had applied to defeat the claim of his wife and family: Cameron
v Young [1908] AC 176.
The question
raised by this appeal is whether the authority of Cavalier v Pope
binds this court to hold the council immune from liability to the plaintiff, or
whether it does not, either because it is inconsistent with later decisions of
the House of Lords, which was (we think) the judge’s view, or because it can be
distinguished from this case, which is our own view.
Cavalier v Pope is not without its followers and not without its
critics. It has been applied by this court in Bottomley v Bannister
[1932] 1 KB 458, and again in Davis v Foots [1940] 1 KB 116. In Bottomley’s
case the court granted immunity to builders who had sold to a purchaser a house
newly built with a gas boiler which was dangerous unless the flow of gas was
properly regulated. It was not properly regulated and the purchaser and his
wife, occupying the house as tenants at will, were fatally poisoned by the gas.
In Davis’ case the tenant of a flat, let by the couple who had previously lived
there, sued them for the death of her husband from gas poisoning from a pipe
left open by the landlords’ son when he moved a gas fire; the court upheld the
landlords’ appeal and took away the damages which the judge had awarded the
widow.
Between these
two decisions the House of Lords had decided Donoghue v Stevenson
[1932] AC 562, which du Parcq LJ held could not be applied to Mrs Davis’ case
because she had a reasonable opportunity for examining a plainly apparent
defect as soon as the gas was turned on. The long line of cases in which Donoghue
v Stevenson has been considered and applied ends, as far as this appeal
is concerned, with Anns v Merton London Borough Council [1978] AC
728, in which both Cavalier v Pope and Bottomley v Bannister
were also considered.
The immunity
which protected Pope from Mrs Cavalier’s claim rested on the long-established
principle stated by Erle CJ in a judgment (written according to Scrutton LJ by
Willes J) in Robbins v Jones (1863) 15 CB (NS) 221, at p 240:
A landlord
who lets a house in a dangerous state is not liable to the tenant’s customers
or guests for accidents happening during the term: for, fraud apart, there is
no law against letting a tumble-down house; and the tenant’s remedy is upon his
contract, if any.
Common sense
refused to extend the immunity to those who let furnished houses in a defective
condition: Smith v Marrable (1843) 11 M & W 5; Wilson
v Finch Hatton (1877) 2 Ex D 336. But the Court of Appeal felt bound to
maintain it in favour of a landlord or vendor ‘even if he has constructed the
defects himself or is aware of their existence’: Bottomley v Bannister
(supra) per Scrutton LJ at p 468.
In Donoghue
v Stevenson Lord Buckmaster buttressed his dissent from the decision of
the majority of their lordships in favour of making the manufacturer of a
defective article liable to any persons so closely and directly affected by his
acts or omissions that he might reasonably have them in contemplation as being
so affected by asking ([1932] AC 562 at p 577):
If such a
duty exists, it seems to me it must cover the construction of every article,
and I cannot see any reason why it should not apply to the construction of a
house. If one step, why not fifty? Yet
if a house be, as it sometimes is, negligently built, and in consequence of
that negligence the ceiling falls and injures the occupier or any one else, no
action against the builder exists according to the English law, although I
believe such a right did exist according to the laws of Babylon.
Yet Lord Atkin
referred to Cavalier v Pope and Bottomley v Bannister
without disapproval (ibid pp 597, 598); and Lord Macmillan distinguished Cavalier
v Pope and Cameron v Young (in which he had been engaged
as counsel) by putting them ‘in a different chapter of the law’ (ibid p 609).
In Greene
v Chelsea Borough Council [1954] 2 QB 127 the Court of Appeal refused to
extend the Cavalier v Pope immunity to a requisitioning case
where the council’s licensee had been injured by a defective ceiling. Denning
LJ there said (at p 138):
During the
19th century there was a doctrine current in the law which I will call the
‘privity-of-contract’ doctrine. In those days it was thought that if the
defendant became connected with the matter because of a contract he had made,
then his obligations were to be measured by the contract and nothing else. He
owed, it was said, no duty of care to anyone who was not a party to the
contract. This doctrine received its quietus by the decision of the House of
Lords in Donoghue v Stevenson, but it has been asserted again
before us today. We must, I think, firmly resist the revival of this out-worn
fallacy. Cavalier v Pope is a relic of it which must be kept in a
close confinement. This is not a landlord and tenant case.
We
respectfully agree that Cavalier v Pope must be kept in close
confinement.
In Dutton
v Bognor Regis Urban District Council [1972] 1 QB 373 the Court of
Appeal upheld a judgment against the defendant council at the suit of a
plaintiff who had bought a house built with defective foundations from the
first purchaser and had suffered financial loss. By a majority the court
extended the Donoghue v Stevenson neighbour principle to cover
her claim against the council, she having settled her claim against the
builder-owner on advice that as the law stood a claim in negligence against him
could not succeed. Stamp LJ considered it was not open to this court to
question the true effect of Cavalier v Pope and Bottomley
v Bannister (ibid at p 414); Sachs LJ said that Bottomley v Bannister
had now to be looked at in the light of what was decided in Donoghue v Stevenson,
and Cavalier v Pope was distinguishable because the landlord did
not there create the dangerous state of affairs and the defect was obvious
(ibid at pp 401-2). Lord Denning MR, however, stated that Bottomley v Bannister
was no longer authority and ‘Cavalier v Pope has gone too. It was
reversed by the Occupiers’ Liability Act 1957, section 4(1)’: (ibid at p 394).
We gratefully
accept what Sachs LJ said, but we must respectfully dissent from what Lord
Denning MR said about Cavalier v Pope. Section 4(1) of the Act of
1957, and section 4(1) of the Defective Premises Act 1972 which replaced and
extended it,
maintain the tenants’ premises and only for defects in maintenance and repair.
Section 4(1) of the Act of 1957 limited a landlord’s liability to default in
carrying out his obligation for maintenance or repair. Section 4(1) of the Act
of 1972, while it extends the ambit of the duty to all persons who might
reasonably be expected to be affected by defects in the state of the premises,
retains the limitation by defining defects in section 4(3) as those arising
from an act or omission which constitutes a failure by the landlord to carry
out his obligation for maintenance or repair. Neither of these sections imposed
on a landlord any duty in respect of the state of a tenant’s premises at the
date of letting.
How do these
statutory duties affect Cavalier v Pope? The House of Lords there decided two things:
(1) A landlord can let an unfurnished house which
is in a dangerous state — and that means that, if the tenant had been injured
by a danger known to the landlord but not to the tenant, he could not have
recovered damages for any breach of duty, in contract or in tort, unless there
was a special term imposing not merely a contractual duty to maintain and
repair but a warranty of fitness for safe habitation. The tenant (Mr Cavalier)
had a special contract and was not himself injured, but the House began their
consideration of his wife’s case by approving Robbins v Jones.
(2) A stranger to the contract of tenancy was
owed no duty; so the tenant’s wife, who was injured, lost her action against
the landlord. Landlords, and not only landlords but owners who did not let but
sold their land and buildings, were immune from liability not only to strangers
to their contracts of sale or letting but to the parties to those contracts
themselves. For contractual duties were regarded as excluding delictual duties
and a contractual relationship determined completely the rights and obligations
of the related parties, as well as the rights of third parties.
There are
enactments which improve the position of some tenants against some landlords by
the statutory implication of covenants to keep in repair (Housing Act 1961,
section 32); and, more important, though not applicable to the tenant with whom
this appeal is concerned, by implying a condition that the house is at the
commencement of the tenancy, and an undertaking that it will be left by the
landlord during the tenancy, fit for human habitation (Housing Act 1957,
section 6). It is also now the law, authoritatively stated by Lord Macmillan in
Donoghue v Stevenson [1932] AC 562 at p 610, that one person may owe
another a common law duty of care coexisting with a contractual duty and a
contractual relationship does not necessarily exclude a relationship of proximity
giving rise to the duty formulated in that case. It is unnecessary to go into
the important effects that this coexistence of duties may have on the measure
of damages and the period of limitation. Suffice it to note for the purpose of
this appeal that this development of the law has been applied by this court to
lessees of a house built on land without proper support and consequently unfit
for habitation so as to enable them to recover damages for financial loss both
from the builders of the house for their negligence and from the developers of
the land, who employed the builders and let the house, for their negligence as
well as for their breach of contract: Batty v Metropolitan Property
Realisations Ltd [1978] QB 554, a case relied on by the judge and approved
by the House of Lords in Junior Books Ltd v Veitchi Co Ltd [1983]
1 AC 520.
That was a
case of economic loss, but it cannot be argued that the tenants would have been
any less successful if they had suffered personal injury. The court was applying
the decision of the House of Lords in Anns v Merton London Borough
[1978] AC 728, which considered a local authority’s liability to lessees of
flats for the negligence of one of its officers in inspecting inadequate
foundations of the block containing the flats, and held that the local
authority did owe the lessees a duty of care, as had been rightly decided in Dutton’s
case. In the course of the appeal the House had to consider the position of the
builder. Lord Wilberforce, with whose speech Lords Diplock, Simon of Glaisdale
and Russell of Killowen agreed, said this (p 758):
I agree with
the majority in the Court of Appeal in thinking that it would be unreasonable
to impose liability in respect of defective foundations upon the council, if
the builder, whose primary fault it was, should be immune from liability. So it
is necessary to consider this point, although it does not directly arise in the
present appeal. If there was at one time a supposed rule that the doctrine of Donoghue
v Stevenson [1932] AC 562 did not apply to realty, there is no doubt
under modern authority that a builder of defective premises may be liable in
negligence to persons who thereby suffer injury: see Gallagher v N
McDowell Ltd [1961] NI 26 per Lord MacDermott CJ — a case of personal
injury. Similar decisions have been given in regard to architects — (Clayton
v Woodman & Son (Builders) Ltd [1962] 2 QB 533 and Clay v A
J Crump & Sons Ltd [1964] 1 QB 533). Gallagher’s case expressly
leaves open the question whether the immunity against action of builder owners,
established by older authorities (eg Bottomley v Bannister) still
survives.
That
immunity, as I understand it, rests partly upon a distinction being made between
chattels and real property, partly upon the principle of ‘caveat emptor’ or, in
the case where the owner leases the property, on the proposition ‘for, fraud
apart, there is no law against letting a tumbledown house’: see Robbins
v Jones per Erle CJ. But leaving aside such cases as arise between
contracting parties, when the terms of the contract have to be considered (see Voli
v Inglewood Shire Council (1963) 110 CLR 74, 85, per Windeyer J), I am
unable to understand why this principle or proposition should prevent recovery
in a suitable case by a person, who has subsequently acquired the house, upon
the principle of Donoghue v Stevenson: the same rules should
apply to all careless acts of a builder: whether he happens also to own the
land or not. I agree generally with the conclusions of Lord Denning MR on this
point in Dutton v Bognor Regis Urban District Council [1972] 1 QB
373, 392-394.
Lord
Wilberforce there does two things. First, he approves the decision of the Court
of Appeal in Northern Ireland that a builder may be liable to those injured by
his negligence in building, and thereby confirms Lord Buckmaster’s fear that
English law would in this respect have to conform to the laws of Babylon.
Secondly, he answers the open question whether the immunity of builder-owners
still survives in the negative; the builder-owner is no more immune from the
consequences of careless building than is the builder who is not the owner.
Lord Salmon was of the same opinion. He said (p 767):
I recognise
that it would be unjust if, in the circumstances of this case, the whole burden
should fall upon the council whilst the contractor who negligently put in the
faulty foundations remained free from liability. It has, however, been decided
in Gallagher v N McDowell Ltd [1961] NI 26 that a building
contractor owes a duty of care to the lawful user of a house and that
accordingly the contractor is liable for any damage caused to a lawful user by
the contractor’s negligence in constructing the house. I agree with that
decision for the reasons given by Lord MacDermott CJ in delivering the leading
judgment in the Northern Ireland Court of Appeal. I also adopt what Lord
Denning MR said on this topic in Dutton v Bognor Regis Urban District
Council:
‘The
distinction between chattels and real property is quite unsustainable’ (in
relation to the principles laid down in Donoghue v Stevenson).
‘If the manufacturer of an article is liable to a person injured by his
negligence, so should the builder of a house be liable’.
The contrary
view seems to me to be entirely irreconcilable with logic or common sense.
The instant
case differs from Gallagher’s case in that the contractors were also the
owners of the land on which they built the block of maisonettes. In Bottomley
v Bannister [decided just before Donoghue v Stevenson]
Scrutton LJ said at p 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 aware of their existence’.
I certainly
do not agree with the words in that passage ‘even if he has constructed the
defects himself’. The immunity of a landlord who sells or lets his house which
is dangerous or unfit for habitation is deeply entrenched in our law. I cannot,
however, accept the proposition that a contractor who has negligently built a
dangerous house can escape liability to pay damages for negligence to anyone
who, eg, falls through a shoddily constructed floor and is seriously injured,
just because the contractor happens 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 contractor had also negligently built on someone else’s land, he
would not be immune from liability. This does not make any sense. In each case
the contractor would be sued for his negligence as a contractor and not in his
capacity as a landowner: the fact that he had owned one plot of land and not
the other would be wholly irrelevant. I would hold that in each case he would
be liable to pay damages for negligence. To the extent that Bottomley v Bannister
differs from this proposition it should, in my view, be overruled. Cavalier
v Pope is so far away from the present case that I express no opinion
about it.
From the
middle of the last passage we extract Lord Salmon’s opinion that a landlord of
an unfurnished house may be liable to his tenant for defects rendering it
dangerous if he has constructed them himself.
If that is the
law, this appeal fails. We think the decision of this court in Batty’s
case confirms that it is the law. The landowner who designs or builds a house
or flat is no more immune from personal responsibility for faults of
construction than a building contractor, or from personal responsibility for
faults of design than an architect, simply because he has disposed of his house
or flat by selling or letting it. The council through their architects’
department designed, and through their direct works department built, the
plaintiff’s flat with its dangerous glass panel. They owed him, not as tenant
but, like his wife or his child, as a person who might reasonably be expected
to be affected by the provision of the glass panel in the flat, a duty to take
such care as was reasonable in all the circumstances to see that he was
reasonably safe from personal injury caused by the glass panel. They knew the
thickness of the glass, and on the judge’s finding they ought to have known
that, placed where it was, it was dangerous to the occupants of the flat. The
plaintiff himself considered it dangerous; but even if he had the right (which
we doubt), he certainly was under no duty to protect or remove it, and he had
been told it was standard and nothing could be done about it.
In those
circumstances his knowledge that the glass was dangerously thin cannot
exonerate the council. ‘Knowledge or opportunity for inspection, per se and
without regard to any consequences they may have in the circumstances, cannot
be conclusive against the plaintiff’, said Sir Raymond Evershed MR, with the
agreement of Jenkins LJ, in Denny v Supplies & Transport Co Ltd
[1950] 2 KB 374 at 382; and this court there held that stevedores, who had
stowed timber so badly that a wharfingers’ employee was injured in the course
of unloading it, were liable to him on the principle of Donoghue v Stevenson,
notwithstanding the fact that at the start of the unloading he had drawn
attention to the bad loading and had thereafter continued to unload because
there was no practical alternative. That knowledge of a danger was only a bar
to a person injured by the danger being owed a duty of care by the person who created
the danger where the injured person was really and truly free to act on his
knowledge, was a principle stated by Lord Denning, when sitting in this court
as Denning LJ, in several appeals concerning persons on or near dangerous
premises: Greene v Chelsea Borough Council [1954] 2 QB 127, 139; Slater
v Clay Cross Co Ltd [1956] 2 QB 264, 271; Riden v A C Billings
& Son Ltd [1957] 1 QB 46, 59. His opinion was recognised in section
2(4) of the Occupiers’ Liability Act 1957 and approved by the House of Lords
when the last case went to appeal: [1958] AC 240, especially by Lord Somerville
of Harrow at pp 265-6.
From these
authorities we take the law to be that an opportunity for inspection of a
dangerous defect, even if successfully taken by A who is injured by it, will
not destroy his proximity to B who created the danger, or exonerate B from
liability to A, unless A was free to remove or avoid the danger in the sense
that it was reasonable to expect him to do so, and unreasonable for him to run
the risk of being injured by the danger. It was not reasonable or practical for
the plaintiff to leave the flat or to alter the glass panel. He remained in law
the council’s neighbour, although he had complained that the glass was too
thin.
We reach our
decision without treating Cavalier v Pope as overruled, for Mr
Pope did not design or construct the floor through which Mrs Cavalier fell. He
was not a builder-owner, but what may be called a bare landlord, or a landowner
as such: Gallagher v McDowell [1961] NI 26, 38 per Lord
MacDermott CJ. Counsel for Mr and Mrs Anns submitted to the House that it was
not necessary to overrule Cavalier v Pope ([1978] AC 728 at 744
F); and their lordships refrained from doing so, and left for another day the
immunity of a bare landlord, too closely confined to avail the council but too
deeply entrenched in our law for any court below the highest to disturb or
destroy it.
We have not
investigated the statutory powers under which the council built these flats;
but the decision of the Supreme Court in Eire in Siney v Corporation
of Dublin [1980] IR 400 suggests that the council’s position as housing
authority might provide another reason for making them liable to the plaintiff
in negligence, even though they are not liable in contract.
We were
pressed by Mr Rose with several objections to the council’s liability. One was
that in holding them liable we should be putting into effect the recommendation
of the Law Commission’s Report no 40 on Civil Liability of Vendors and Lessors
for Defective Premises, which was embodied in clause 3 of their draft Defective
Premises Bill (p 38) but not in the Act of 1972, which adopted their other
recommendations. That clause imposed a duty to neighbours on the Donoghue
v Stevenson principle upon
a person who
disposes of premises, knowing at the material time or at any time thereafter
while he retains possession of the premises that there are defects in the state
of his premises.
But that clause
carried out the commission’s recommendations about dangerous defects not
created by the vendor or lessor (pp 16-19) and this appeal is concerned with
dangerous defects created by the vendor or lessor (pp 13-16), which was,
perhaps imperfectly, provided for by clause 1 (p 28) now substantially
reproduced in section 1 of the Act.
Another
objection was that causes of action arising at common law from the same defect
in a dwelling but resulting in different kinds of injury and damage would
accrue at different times for the purposes of the Limitation Acts. A breach of
the statutory duty to build dwellings properly, which is imposed by section 1
on ‘a person taking on work for or in connection with the provision of a
dwelling’, gives rise to a cause of action which is deemed by section 1(5) to
accrue ‘at the time when the dwelling was completed’, and that is so whether
the breach causes personal injury and consequential loss or physical damage to
property resulting in personal injury or economic loss. (The wide words
describing the person who owes the duty might cover the builder-owner, but it
has not been contended for the council that, if they do, they exclude the
common law duty which the judge imposed. Indeed it could not be contended in
the face of section 6(2) of the Act, which provides that ‘any duty imposed by
or enforceable by virtue of any provision of this Act is in addition to any
duty a person may owe apart from that provision’.) If, however, a builder-owner owes a common
law duty, breaches of it in faulty design and construction will constitute
causes of action which accrue, where the damage caused by the negligent design
or construction results in economic or financial loss, at the date when the
damage came into existence, whether discoverable then or only later (Pirelli
General Cable Works Ltd v Oscar Faber & Partners Ltd [1983] 2 AC
1), but where the damage results in personal injury, at the date when the
injury causes damage; which, except in cases where the damage is done by the
insidious onset of a progressive disease (Cartledge v E Jopling &
Sons Ltd [1963] AC 758), may be many years later, as in the present case.
It might indeed have been the end of this century before anybody put his hand
through one of these glass panels. But defects in design and construction are
in most cases likely to cause discoverable injury or damage to persons on the
property within a reasonable time after the building has been completed, and we
do not foresee a spate of actions too late to be tried fairly for
builder-owners.
A third
objection was the cost to local authorities and the council in particular; the
expense of replacing all these panels with thicker glass would be very great.
But if the flats are dangerous as they are, the money would be well spent in
making them safe.
In our
judgment, the judge formulated the duty too widely so as to include the bare
landlord as well as the builder-owner. It may be that to impose a duty on all
landowners who let or sell their land and dwellings, whether or not they are
their own designers or builders, would be so great a change in the law as to
require legislation. But, in our judgment, this court can and should hold,
following Batty v Metropolitan Property Realisations Ltd and
distinguishing Cavalier v Pope, that the council, as their own
architect and builder, owed the plaintiff a duty to take reasonable care in
designing and constructing the flat to see that it was reasonably safe when
they let it to him. They failed in that duty. We accordingly dismiss the
appeal.
The appeal
was dismissed with costs, to be taxed in Liverpool. Legal aid taxation of the
respondent’s costs ordered.