Action for damages against builder and local authority arising from the construction of a bungalow with defective foundations — Builder sued for breach of contract and tort of negligence — Authority sued for breach of duty as defined in Anns v Merton London Borough Council — Duty ‘to take reasonable care, no more, no less, to secure the builder does not cover in foundations which do not comply with bye-law requirements’ — Foundations not deep enough in certain places — Slab placed on rejects, beneath which was compressible organic silt — Building inspector acting for local authority overlooked a defect in trenching which in one area did not go down to required depth — Inspector should also have checked what was under the slab and insisted on removal of silt — Defects resulted in cracking of structure — Inspector also failed to observe that a utility room and garage had been built in a position different from that shown on approved plan — Standard of care expected from inspectors discussed — A more stringent approach today than before decision in Anns case, although supervision by an inspector must be of a more limited nature than that which would be provided by a clerk of works — Both builder and local authority liable to plaintiff — Contribution between the two defendants ordered on the basis of attributing 60 per cent of the blame to the builder and 40 per cent to the authority — Total sum awarded £11,511.56, of which £300 was in respect of distress suffered by plaintiff
The plaintiff
in this action was Dolores Mary Worlock, a widow, the first defendant being
SAWS, a firm of which the principal was David Hicks, and the second defendants
Rushmoor Borough Council, successors to Farnborough Urban District Council. The
action concerned serious building defects in a bungalow built for the plaintiff
at 2 Manor Road, Farnborough.
M Strachan
(instructed by Lawrence, Graham, Middleton Lewis) appeared on behalf of the
plaintiff; R Dening (instructed by Davies, Blunden & Evans, of Farnborough,
Hants) represented the first defendant (SAWS): R Akenhead (instructed by White,
Brooks & Gilman, of Winchester) represented the second defendants (Rushmoor
Borough Council).
Giving
judgment, WOOLF J said: This is a claim by Dolores Mary Worlock for damages
against the first defendant, who was the builder, and the second defendants,
who are the successors to the local authority which at the relevant time was
responsible for carrying out the statutory obligations under the Building
Regulations in Farnborough. The plaintiff’s claim relates to damage which
occurred to her new house, which was built by the first defendant, at 2 Manor
Road, Farnborough, in Hampshire. She also is seeking damages for the distress
that she was caused in consequence of the damage to her property.
The claim of
the plaintiff is largely based upon the principles laid down by the House of
Lords in the case of Anns v Merton London Borough Council [1978]
AC 728. However, it is necessary to consider the application of that case to
matters with which it did not specifically deal and in particular it is
necessary for me to consider: firstly, what are properly to be regarded as
foundations for the purpose of the Building Regulations; secondly, to what
matters a building inspector has to have regard when visiting premises with a
view to ensuring compliance with Building Regulations; and, thirdly, the
liability of a builder for a breach of the obligations contained in the
Building Regulations where it is said that there has been no negligence on the
part of the builder and it is sought to rely upon a breach of the regulations
to give rise to absolute liability on the part of the builder.
Mrs Worlock is
a widow who is now aged 60. She had lived for a substantial period of time at a
house known as 151 Sycamore Road, Farnborough. That house had sufficient space
for there to be erected in the garden a bungalow. She therefore engaged an
architect to draw up plans for a bungalow and in due course she obtained
planning permission for the erection of the bungalow, which was known as 2 Manor
Road, Farnborough. Although she had engaged the architect to draw up the plans
and also to prepare a specification and to obtain approval under the Building
Regulations, she did not retain the architect to supervise the building work
but instead relied upon the help of a friend.
This case and
what followed as a matter of history is perhaps a warning as to the dangers
that can be involved in engaging upon a venture as complex as building a
property without having the benefit of professional advice throughout the time
the property is being built. I have little doubt that if an architect had been
supervising the construction of the bungalow, the matters which I have got to
describe would have been avoided.
The first
defendant is a person who for many years has worked on his own account. He
spent his working life in the building trade; his trade being that of a
carpenter. There came a stage shortly before 1972 when, to use his own words,
he became ambitious and he ceased to regard himself merely as a carpenter but
decided to engage upon building contracting work. In that capacity, he carried
out conversion work to existing properties but never prior to this occasion, as
I understand his evidence, was involved in taking responsibility for building a
new dwelling. He was approached on behalf of the plaintiff to see whether he
would take on responsibility for the building of her bungalow on a basis
whereby she provided the materials and he provided the labour.
The matter was
dealt with in a very informal manner. No proper building contract as such was
drawn up. Plans were left for him in a public house, in consequence of which he
submitted to the plaintiff a quotation and I should refer to that document. The
document is headed with the words ‘Specialists in All Woodwork Structure’. It
bears Mr David Hicks’ name and has typed upon it ‘Building Contractors’ above
the words ‘SAWS Contracting Carpenters’. Then it refers to the bungalow and
says: ‘We have pleasure in quoting for work as follows: Labour only,’ and then
it sets out the trades, and it says ‘Supply and fix’ and it refers to various
matters such as tiling and says: ‘The total value of supplying labour and
material as stated above: £4,700.’ It
has what it describes as ‘Terms of Contract’ which refer to the fact that ‘All
materials will be supplied by you unless quoted for. Insurance, public and
employer to be supplied by you . . . Scaffolding to be supplied by you. Cement
mixer to be supplied by you. This quote does not include building up site to
any level except to bring in drive. We have only
this will be extra. We have quoted for footing of 3 ft 3 in as indicated on
Drawing. For excess of this, it will be £25 for 1,000 bricks.’ It sets out the ‘Terms of Invoice’ and a
breakdown of the money and then it concludes by saying, ‘A total of £300 will
be held by you for a period of six months from the date of the Council’s
Habitation order’.
On May 3 1972
the plaintiff replied to Mr Hicks saying, ‘Thank you for your quotation in
regard to the above which I accept, with the proviso that the work proceeds in
accordance with the specification and plans as submitted’. There is no doubt
that at the relevant time the plaintiff had given to Mr Hicks plans which,
among other matters, referred to the foundations for the external walls as
being 3 ft 3 in minimum. In respect of the slab which had to act as the floor
of the bungalow and on which there were to be placed the internal partitions,
there appeared the words ‘2 inches concrete screed; 4 inches minimum concrete;
4 inches minimum hardcore’. That drawing also referred to a ‘concrete raft
foundation’.
There is a
dispute as to when Mr Hicks received the specification prepared by the
architect, though there is no dispute that he received it prior to his
commencing the building work. The specification required the contractor to
‘visit the site before tendering and’ to ‘make himself thoroughly acquainted
with the nature and extent of the work’. It required the contractor to ‘arrange
for a competent foreman to be on site throughout the period of the contract’.
It said that ‘All workmanship throughout’ should ‘be first class and conform
with all relevant British Standard Codes of Practice’ and it required excavation
in these terms: ‘Excavate and level over the site of all buildings, footpaths,
etc, trenches for foundations and services, all as shown. In made ground,
foundations shall be taken down to the natural bottom unless specific
directions to the contrary are given.’
Although the
architect obtained approval of the plans from the point of view of the Building
Regulations, that was only done after the plans had been amended. At the time
that Mr Hicks gave his quotation, the plans had not been amended. They were
subsequently and he worked in accordance with the amended plans, which included
a thickening of the slab underneath the partition walls.
The plaintiff
having accepted Mr Hicks’ quotation, he started work. He gave the appropriate
notices in respect of the commencement of work to the Farnborough Urban
District Council, who are the second defendants’ predecessors, the first of
those notices being the notice of the intention to commence work, being dated
May 11 1972, and the subsequent notices concluded with a notice dated October
15 1972, indicating that the work had been completed and was ready for
inspection. As a result of those notices being served, the building inspectors
visited the site on at least six occasions. The dates of those visits appear in
the Record of Inspections of New Buildings. The building was inspected by two
inspectors, the majority of visits being by the senior inspector, Mr Kent, who
gave evidence before me.
When the
bungalow was nearly completed, a dispute developed between the plaintiff and
her next-door neighbour. As a result of that dispute, the garage and the
utility room, which had already been partly erected at the north of the
building, had to be altered and repositioned. For the taking down of the
building work which had been erected. Mr Hicks made no additional charge and he
suggested a way of overcoming the problem which resulted in those buildings
being erected in the positions in which they now appear. Before he re-erected
those buildings, he visited the local authority on the plaintiff’s behalf and
he was given information to the effect that as long as an amended plan was
submitted, that would be in order; an amended plan being submitted for the
purposes of obtaining an amended approval under the Building Regulations.
Because of a misunderstanding, no amended plan was in fact ever submitted and
no approval was obtained from the authority in respect of the altered position
of the garage and utility room. What is more, except that the garage and
utility room would in fact have been in their altered position by this time,
the building works in connection with the garage and utility room were never
inspected by the building inspectors apart from what occurred on the completion
inspection on October 16 1972.
In 1975, some
three years, approximately, after she had gone into occupation of the premises,
the plaintiff began to notice cracking which caused her some concern. There
probably would have been cracking at an earlier date visible in or outside the
building, but it did not register with the plaintiff. In 1977 the cracking got
rapidly worse and the plaintiff became seriously concerned. She described in
her evidence hearing thumping noises and in 1977 she really was in a situation
where she was being caused very real anxiety.
She took
professional advice and in consequence she made a claim against her insurers in
respect of what had happened and they in turn appointed, as surveyor to
investigate the matter on their behalf, a Mr Farquharson, who is a foundation
and structural engineer of some distinction, who gave evidence on her behalf.
As a result of the claim. Mrs Worlock in due course was compensated by her
insurers in respect of the very substantial remedial works which were alleged
to be required. That remedial work was carried out under the supervision of Mr
Farquharson and it involved the replacement of the internal ground-floor slab
and the underpinning of the foundations to the external walls. During the
course of the work, Mrs Worlock had to move out of the premises for a time and
I have no doubt at all that what occurred must have been an extremely
distressing and upsetting episode to Mrs Worlock.
It is not
disputed before me that, bearing in mind what was found by Mr Farquharson when
he investigated the matter, it was reasonable for the plaintiff to have carried
out the remedial measures the cost of which is the subject-matter of this
claim. In respect of those matters, but including the additional consequential
loss, it is agreed that the total loss was £11,211.56.
I have been
assisted also by an agreement that in respect of her distress, Mrs Worlock, if
she succeeds in establishing liability, is entitled to recover a further sum of
£300, a sum which, of course, has not been met by her insurers.
On that
summary of the facts, the issues which I have to deal with are as follows:
first of all, what are the relevant terms of the contract between Mrs Worlock
and her builder?; secondly, as to whether or not the builder is in breach of
those terms; thirdly, as to whether or not there is an additional obligation on
the builder which gives rise to a cause of action for damages in respect of
breach of the Building Regulations and, if so, whether that duty is an absolute
one; fourthly, did the local authority perform the duty which is placed upon it
by the Public Health Act and the Building Regulations, that duty being the one
enunciated in the Anns case?; fifthly, the question of damages, which as
to quantum is agreed but subject to the allocation of the appropriate sum to
the matters, if any, in respect of which the individual defendants are liable;
sixthly, the limitation point which is relied upon by both defendants; and,
seventhly and finally, the question of contribution between the defendants.
Turning,
therefore, first of all, so far as is relevant, to the terms of the contract,
understandably, Mr Hicks made it clear in the course of his evidence that he
feels somewhat aggrieved that he is here faced with this action. He says that
all he was agreeing to do was to arrange for himself to do certain labouring
work and others to provide other labour. Secondly, he says that he had made it
clear that he wanted the plaintiff to insure; she has had the benefit of the
insurance which he wanted her to obtain, and it is wrong that he should then be
faced with a claim which is in effect a claim by her insurers. Thirdly, he says
the plaintiff chose to have the work carried out without the supervision of an
architect and approached him to do the building work on the basis indicated in
his quotation and he should not be expected to provide the same skills and
standard of knowledge in relation to matters such as foundations as would be
provided by a large building contractor.
In order to
deal with those three matters, it is necessary, first of all, to decide what
were the written terms of the contract. So far as that is concerned, I am quite
satisfied that the written terms of the contract are contained in the quotation
from Mr Hicks, the specification and the plans and the letter of May 3 1972, to
which I have made reference.
There is a
dispute between Mrs Worlock and Mr Hicks as to when
letter, that the specification was received by Mr Hicks before he gave his
quotation and I so find. However, in my view, it does not matter, because when
Mr Hicks started on the contractual work, he knew that he was being required to
work in accordance with the specification. He furthermore knew that the work
had to be in accordance with the plans which had by that time been amended and
even if the specification was received at a later date, that would not, in my
view, have affected the position. That being so, it seems to me clear that this
was a contract where Mr Hicks was agreeing to take responsibility for all the
labour work. It was contemplated that he would subcontract very many parts of
the work, but his job was not merely to arrange the attendance of
subcontractors: his job was to do the building work using such subcontractors
as he wished.
So far as
insurance is concerned, regrettably from his point of view, Mr Hicks did not
require the plaintiff to arrange insurance of any liability which he may be
under to her in respect of defective foundations. She did not arrange any such
insurance and I am afraid the insurers who, through her, bring these
proceedings are entitled, in my view, to do so.
So far as the
standard of care required by Mr Hicks is concerned, I do have some sympathy for
Mr Hicks. I do feel that it is unfortunate that he should be in the position in
which he now finds himself. However, in my view, the law is clear. He held
himself out as a building contractor. He must therefore be judged as such
because it was as a building contractor he was engaged by the plaintiff, albeit
on a labour-only basis, and, in my view, he was required to exercise generally
over the work upon which he was engaged that standard of care which would be
expected from a reasonably competent building contractor.
Looking at the
matter in that way, I now turn to the question as to whether or not Mr Hicks
was in breach of contract, first of all in respect of the external foundations.
The soil and subsoil in this area consisted of topsoil overlaying organic silt
with stone, changing with depth to a sandy light brown clay with stones, and
the subsoil below a depth of 3 ft consisted of greensand and stone, this going
below ground level to a depth of 5 ft 9 in. I give those figures from the
report of Mr Farquharson. They do not, of course, apply uniformly throughout
the site but they do indicate that there was, down to a depth of approximately
3 ft, topsoil and organic silt, both materials which would be an unsatisfactory
base for foundations, but that below that depth there was material which could
form a satisfactory base, namely, the greensand and stone. It will be recalled
that the plans so far as the external foundations were concerned had referred
to a minimum depth of 3 ft 3 in.
In general, Mr
Hicks arranged for excavations to go down to the good base of greensand and
stone. He employed a mechanical digger which dug out the foundations round the
perimeter of the proposed bungalow to that depth. However, as subsequent
investigation showed, in an area which is now reflected in piles 1, 18 and 19
at the south-east corner of the building in fact the foundations did not go as
deep as they should and there was still remaining organic silt and/or topsoil
amounting to some 20 to 30 in in depth. Furthermore, at the position of the bay
window on the south face of the bungalow, there were foundations which were
also of inadequate depth, though previously the trench for the foundations had
been taken in a straight line to the required depth. In relation to the utility
room and garage, at their original intended position, the foundations had been
inserted to a proper depth and the trench dug to that depth. However, in their
altered positions, the foundations were of a wholly inadequate depth.
With regard to
the slab which was the cause of the majority of the problems, the position
disclosed was that the slab complied with the minimum requirements which
appeared on the plans which were submitted to Mr Hicks, but in fact the slab
had substantially subsided because of the presence of the organic silt beneath
the hardcore, or, rather, rejects, which Mr Hicks placed beneath the slab, the
position being that the organic silt was a material which was quite incapable
of providing a proper found for the slab. In relation to the preparations for
the slab, Mr Hicks says — and this is not disputed — that what he did was to
arrange for a good spade’s depth to be removed from the surface of the ground
before the slab was placed there and that he put the rejects beneath the slab.
So far as the
external foundations are concerned, in my view, it is clear beyond peradventure
that Mr Hicks must be regarded as in breach of the standard of care to which I
have made reference. He knew of the requirement to dig down to the greensand
and, except in the areas to which I have made reference, he did so. I am afraid
with regard to the corner of the main building to which I have made reference,
for some reason or other, there was a failure to go down to the required depth
and in regard to the garage and the utility room, I think what happened was,
because Mr Hicks was faced with resiting those buildings after the mechanical
digger had been removed and the digging had to be done by hand, he took the
view that it would be sufficient, because of the lighter form of construction
of those buildings, not to go as deep as in other parts. I am afraid he was
wrong as to that and he could not have reasonably formed that view and his
failure to go down to the required depth was a breach of the standard of care
to which I have referred.
In relation to
the slab, the position is more complex. It is my view that Mr Hicks did not
appreciate the necessity of removing the organic silt. The organic silt is a
substance somewhat like peat though by no means the same. It has a proportion
of vegetable matter in it but is not exclusively vegetable material. The
feature which creates the problems is the fact that it is highly compressible.
I do not believe that Mr Hicks realised the consequences of placing a heavy
slab upon a material of that sort. The plan did not require him to do more than
provide a 4-in minimum of concrete and a 4-in minimum of hardcore and that he
provided. Nobody told him there was more than was needed. Furthermore, the
knowledge which is now available of the problems that can be created by organic
silt is much more extensive than was previously the case. This particular claim
reveals a situation which I understand from the experts has occurred in respect
of many other properties. Now it would be bad practice to seek to place a slab
directly on to the ground in the way this slab was placed. The practice which
would be adopted now would be to suspend a reinforced slab from the support
provided by the external wall foundations.
What was the
position in 1972? In relation to that,
the expert evidence is in conflict. However, it is clear that at least by 1970
there was an awareness of this problem and the conclusion that I have come to
is that a builder exercising the standard of care and having the required skill
in order to do so should, by 1972, have appreciated that it was bad practice to
leave a material of that sort under hardcore. In my view, Mr Hicks was in
breach of duty in failing to appreciate the necessity of removal of the strata
of organic silt and because of that he is responsible to the plaintiff for the consequence
of his failure. I am afraid that the ambition which Mr Hicks showed in taking
on more substantial work than he had previously undertaken caused him on this
occasion to be involved with a problem with which he was ill-equipped to deal.
Having come to
the conclusion that in respect of all the matters to which I have made
reference Mr Hicks is in breach of contract, it seems to me of limited
importance to express views as to his liability, first of all, in tort and,
furthermore, in respect of the duties contained in the Building Regulations.
However, I propose to deal with those matters shortly and I would indicate the
position as follows. First of all, in respect of a liability for tort, although
the contrary was argued, in my view the case of Batty v Metropolitan
Property Realisations Ltd [1978] 2 WLR 500 makes it clear that he is also
liable to the plaintiff in tort. Although there may be circumstances where the
scope of the duty in tort and in contract differs, I cannot believe there is
any difference in the scope of the duty in this matter.
Turning,
therefore, to breach of statutory duty, what is argued on behalf of the
plaintiff is that the Building Regulations are designed, among other things, to
protect persons in the position of the plaintiff. They were made under the
provisions of the Public Health Act 1936 and that Act has as its scope, as
appears from the speech of Lord Wilberforce in the Anns case, among
other things,
to provide
for the health and safety of owners and occupiers of buildings, including
dwellinghouses, by inter alia setting standards to be complied with in
construction, and by enabling local authorities, through building bye-
laws, to supervise and control the operations of builders. One of the
particular matters within the area of . . . supervision is the foundations of
buildings — clearly a matter of vital importance, particularly because this
part of the building comes to be covered up as building proceeds.
That being the
purpose of the Act, on behalf of the plaintiff it is contended, notwithstanding
that there are criminal sanctions for the enforcement of the regulations and
notwithstanding that there are other sanctions, this is a case where the Act
should be regarded, together with the Building Regulations, as creating a statutory
duty enforceable by a person in the position of the plaintiff. The plaintiff
says that the case of Solomons v R Gertzenstein Ltd [1954] 2 QB
243, which is a case dealing with the London Building Acts, provides the proper
approach because in the case of those Acts it was held that there was a duty
enforceable by the individual because the Acts were imposed primarily for the
protection of a particular ascertainable class.
The arguments
to which I have just referred were not fully developed by Mr Strachan before me
because I indicated my provisional views about my probable findings in relation
to breach of contract. However, notwithstanding the authority to which I have
just referred, for myself I am satisfied that it would be wrong to regard the
Building Regulations as giving rise to a statutory duty creating an absolute
liability. In my view, when the speeches in the case of Anns are
considered, which dealt in part with the position of the builder, they are
inconsistent with any such conclusion, nor do I find anything in any of the
earlier authorities considered in Anns which would support such an
absolute statutory duty. It seems to me very difficult to accept that a person
in the position of the plaintiff could establish an absolute duty against a builder
by virtue of statute when the contract under which the building work was
performed was one which created no such obligation.
Turning to the
position of the local authority, the duty of care owed by the authority is one
which arises out of the statute but is a duty to take reasonable care. At p 758
Lord Wilberforce described the duty in these terms:
This must be
related closely to the purpose for which powers of inspection are granted,
namely, to secure compliance with the bye-laws. The duty is to take reasonable
care, no more, no less, to secure the builder does not cover in foundations
which do not comply with bye-law requirements.
Those words,
when applied to the external foundations of the main building, apart from the
foundations to the bay window, make, in my view, the position of the local
authority clear.
Mr Kent, the
building inspector concerned, has no recollection of the actual inspection
which took place into the trenches for the foundations of this particular
building. That is in no way surprising. What he does say is that he would have
walked through the trenches and if the trenches had any area where they did not
go down to the proper load-bearing material, he would have required the builder
to remove any material above that level.
Mr Hicks
recalls the inspection by the building inspector and indeed says that there was
a return visit because the pegs were not in place at the time when the
inspection was first carried out. He has no recollection of Mr Kent making any
reference to the trench for the excavations being inadequate. On this matter, I
accept Mr Hicks’ evidence and I find that there was no indication given by Mr
Kent that in one area the trench did not go down to the required depth. At this
time, Mr Kent was a very busy man and, for some reason or other, I am afraid he
overlooked this defect in the trenching which had been dug quite satisfactorily
in the major portion of the areas which he inspected. That must, in my view, be
a departure from the standard referred to by Lord Wilberforce.
So far as the
bay window is concerned, where Mr Kent inspected, there was nothing wrong and
in regard to that matter, the plaintiff no longer alleges a failure to exercise
proper care against the local authority.
In respect of
the slab, again the position is more difficult. First of all, it is strongly
urged on behalf of the second defendants, the authority, that there was no duty
as indicated by Lord Wilberforce which applied to the slab. The slab, it is
argued, was not a foundation; the rejects which were underneath the slab were
not a foundation. When Mr Hicks gave his notice that the trenches for the
foundations were ready for inspection, he was not referring to what was to be
under the slab, so A10 of the regulations which requires notices to be served
before the completion of certain stages of the work had no application.
Regulation C3 requires that ‘Such part of a building . . . as is next to the
ground shall have a floor which is so constructed as to prevent the passage of
moisture from the ground to the upper surface of the floor,’ and ‘Any floor
which is next to the ground shall be so constructed as to prevent any part of
the floor being adversely affected by moisture . . . water vapour from the
ground’ and ‘No hardcore laid under such floor shall contain . . . sulphates or
other deleterious matter in such quantities as to be liable to cause damage to
any part of the floor,’ but the preparation of a site is designed so as to
provide protection and resistance to moisture. The second defendants contend
that they have no relevance to the issue which we are involved in here which is
with regard to structural stability. I agree with the second defendants that C3
of the regulations is dealing with the preparation of the site with regard to
the protection of the floors next to the ground against moisture.
Part D of the
regulations, which deals with structural stability, in D3 provides: ‘The
foundations of a building shall — safely sustain and transmit to the ground the
combined deadload, imposed load . . . in such a manner as not to cause any
settlement or other movement which would impair the stability of, or cause
damage to, the whole or any part of the building or of any adjoining building
or works.’ However, the second
defendants argue in respect of that regulation that it only applies to
foundations of buildings and it in fact the slab is not a foundation, it has no
application here.
The first
matter that I must therefore consider is whether or not there is any relevant
foundation for the purposes of the regulations. The expert called on behalf of
the second defendants, Mr Akroyd, is a consulting engineer of the greatest
authority and experience in matters of this sort. He informed me that when
these Building Regulations were first brought into force, they really were only
intended to cover such matters as the external foundations, and forms of
construction of the sort that occurred in relation to the slab of the bungalow
in this case really were not being considered at all. It was his view that it
would be wrong to regard the regulations as extending to the slab.
The
plaintiff’s expert, on the other hand, Mr Farquharson, said the correct
approach to the regulations to which I have just referred is to regard them as
applying to anything which rested on the ground. Alternatively, it is contended
that the proper approach is to be found in the definition which is contained in
the London Building Acts. Section 44 of the London Building Acts (Amendment)
Act 1939, defines ‘foundation’ in these terms:
‘Foundation’
in relation to a wall means the solid ground or artificially formed support
resting on solid ground on which the wall rests.
For the
purposes at any rate of this case, in my view, the proper approach as to what
is a foundation is somewhere in between the two views to which I have made
reference. I would regard a foundation as an object which is placed in position
on or in the ground in the course of constructing a building, or for the
purposes of a building which is to be constructed, the function of which is to
provide support for that building so that it in fact transmits load to the
material beneath. It seems to me that Mr Akroyd is wrong in regarding the
support of the internal partitions as being outside the ambit of the
Regulations.
I have more
difficulty in coming to a conclusion about an object merely placed upon the
ground which merely supports its own weight — the position of a slab which is
placed upon the ground which does not carry partitions, or indeed even a slab
which is placed upon the ground and carries internal walls, which would fall
within the definition contained in the section to which I have made reference.
For the purposes of this case, it does not seem to me necessary to express any
concluded view about that. I am satisfied that where you have, as here, a slab
placed on the ground which has been specially thickened in certain areas so as
to take the weight of the internal walls and that slab is placed upon a reject
or hardcore
Building Regulations to which I have made reference.
It follows
therefore that, that being so, Mr Kent, as the building inspector concerned,
should have been directly interested in what was going on below this particular
slab and the nature of the duty described by Lord Wilberforce applies to the
inspector in relation to the slab. Mr Kent, having, as I have already said, no
recollection of precisely what happened, does say that he would have required
the builder to remove any unsuitable material he observed under this slab. Mr
Hicks again says that no such requirement was made of him in relation to the
organic silt under this slab. He says that if he had been required to remove
the material, he would have done so. He would have been entitled to be paid for
it under the terms of his contract and he would have had no objection to doing
so, although no doubt it would have been substantial additional work.
The evidence
of Mr Kent was very inconsistent on this matter. He changed his account of what
approach he would have adopted if he had known that organic silt was present
and I have come to the conclusion that on this matter I should accept Mr Hicks’
evidence and come to the view that in fact no requirement was made of him by Mr
Kent.
Should he have
made a requirement as part of taking the reasonable care to which Lord
Wilberforce referred? In my view, Mr
Kent should have done so. I think that the explanation so far as Mr Kent is
concerned is similar to the explanation which I have already given with regard
to the failure of the plaintiff to remove the organic silt. Although Mr Kent is
well aware now of the necessity to remove organic silt, back in 1972 I do not
think he appreciated this necessity. He knew about it in relation to the external
foundations and he would certainly with regard to the external foundations have
required the removal of such a material. Mr Kent did not dispute that. In
relation to the slab, in my view, he should have taken the same view as he took
in relation to the external foundations. He was a person, after all, one of
whose primary jobs was to inspect foundations. It was important for him, in
order to fulfil that role, that he kept himself abreast with the knowledge
about what was required beneath slabs of this nature. The weight of a slab
would be apparent from a cursory examination of the details contained in the
plans of what was proposed. The fact that this material was compressible was
something which would be known to him. Without having any specific experience
of slabs, the combination of the slab with this material should have warned him
of the dangers. In my view, he should certainly have been aware of the presence
of the material. It is true that at the time he made his inspection, the
material could have been dry. As Mr Akroyd, in his evidence, pointed out, when
it was dry, the material’s true qualities might not be as apparent as they
would be in different conditions. The material would form a satisfactory wall
to the trench. However, if the material forming the sides of the trenches which
had been dug for the purposes of the external walls’ foundations had been
properly examined by Mr Kent. I have no doubt he would have been appreciative
of the nature of the material and, as I have already indicated, being
appreciative of the nature of the material, he should have been aware that it
would create dangers not only in respect of the external foundations but also
the slab. I therefore come to the conclusion that in relation to the
performance of his duties with regard to the slab, Mr Kent fell down on the
standard required. I think that if he had given the warning to Mr Hicks, Mr
Hicks would have taken the necessary steps.
So far as the
other criticisms which were made of Mr Kent are concerned, I am much more
doubtful. It was suggested that when he returned and saw the rejects in
position before the slab was laid, he should have examined on what they had
been placed. I, in the circumstances of this case, would regard that as being
too high a standard of care to expect of an inspector. It seems to me that,
exercising the reasonable care referred to by Lord Wilberforce, it is quite
proper for a building inspector to rely on what he is assured has happened by a
reputable builder. It is not necessary to carry out investigations to ensure
that what he has instructed to be done has in fact been done. The degree of
supervision which a building inspector can provide must be of a much more
limited nature than that which would be provided by a clerk of works.
There remains
the consideration so far as the building inspector is concerned of the position
in relation to the utility room and garage. When the original position for the
foundations was inspected, the trenches would be perfectly in order. The
building inspectors were never notified of the need to inspect the new trenches
which were dug and they were never given the opportunity of inspecting them.
The plans which should have been submitted were never submitted. It is argued
on behalf of the second defendants that the nature of the duty to which Lord
Wilberforce referred did not apply in a situation where the authority had never
been notified of the works which were going to take place. Certainly I accept
that in this case there was no opportunity for the building inspectors to
inspect the foundations before they were covered up, but, in my view, that does
not mean that the authority, through its officers, has not fallen down on the
duty to which Lord Wilberforce was referring in more specific terms in the
passage to which I have made reference.
In order to
protect persons in the position of the plaintiff and subsequent occupiers of
the property, it is important that building inspectors should not regard their
duty as being no more than to carry out the specific inspections referred to in
notices which they receive. This is a matter referred to by Mr Akroyd in his
report. He cites with approval, as I understand it, a passage from Kennard
& Dufton’s book on The Building Regulations which I would adopt.
They say with regard to Regulation A10 that they
have the
unfortunate effect of implying that the local authority is interested in making
inspections only at those stages of the work mentioned in the regulation,
whereas, in fact, the local authority is responsible for the enforcement of the
whole of the regulations. This is not achieved by prior approval of plans and
particulars alone and now more than ever before requires effective site
supervision throughout the period of the works owing to the extent of detailed
requirements embodied in the regulations.
In this case,
when the final inspection was made by the building inspector, although it was
by then far too late to see any foundations, what should have been observed by
the building inspector was that the utility room and garage had been erected in
a position which was different from that shown in any plan which had been
approved by the authority. Observing that matter, at the very least the
inspector should have raised the matter with the builder and ascertained what
was the position. Once they had found out the position, no doubt, as a matter
of discretion, there would be many alternative decisions which the building
inspector or his superiors could properly take without being criticised, but
certainly they would, at the very least, be required to exercise their
discretion as to what steps should be taken. In this case, they never exercised
that discretion at all. They never raised the matter with the builder. If they
had raised the matter with the builder, they could have taken steps to
ascertain and satisfy themselves that what had been done had been properly
done. They could have made boreholes with the agreement of the plaintiff of the
sort which were in fact made at a subsequent date. They could have at least
discussed the matter with Mr Hicks. Having formed the favourable impression
that I have of Mr Hicks, if the matter had been raised with him, I am sure that
it would have become apparent very quickly that he had adopted these wholly
inadequate shallow foundations for those parts of the bungalow. If they had
ascertained that, remedial steps would have been required and so, by the
failure of the inspectors to make inquiries at the stage when it should have
been apparent to them that there had been the erection of buildings for which
no permission had been acquired, the position came about where there was
settlement both in the garage and the utility room and the plaintiff was put to
the expense which she incurred.
I would
therefore form the view that in relation to the utility room and garage as well
as the slab and the north-east corner of the bungalow, there was a breach by
the authority, through its employees, of the duty placed upon it in order to
achieve the purpose intended by the Building Regulations.
In coming to those
conclusions with regard to the default of the authority, it is right that I
should make very clear that I have not been influenced by the fact that the
evidence before me makes it abundantly clear that there has been a substantial
change of practice since the Anns decision. Quite clearly, nowadays it
is the practice of all authorities engaged in supervising compliance with
the Building Regulations to adopt a much more stringent approach than they
adopted before the Anns case was decided. It seems to me that the right
approach is one which involves recognising that the Anns decision
declared what the responsibilities of inspectors in relation to these matters
were. That means that in considering the conduct of inspectors, it is necessary
to measure their conduct on the basis that they were under a duty to exercise
reasonable care. However, what was reasonable care has to be judged by the
state of knowledge which existed in 1972. It would be wrong in relation to the
facts of this case to require of the authorities the very much higher standards
of care which they now adopt not because they know they are under a duty of
care which they previously did not appreciate but the standard of care which
they adopt because they know of dangers in relation to foundations which were
not fully appreciated in 1972. Judged by that lesser standard, as I have
already indicated, it is my view that this authority failed to do what was
required.
Turning to the
question of damages, the major item is the slab and with regard to that item,
there can be no dispute that both defendants are liable to make compensation to
the plaintiff in the agreed sum. Likewise in regard to the garage and the
utility room.
In relation to
the underpinning which took place at the north-east corner of the bungalow, it
was suggested that there may in fact be no right to recover the cost because,
although there had been a failure to provide proper foundations, in fact no
damage had been caused. With regard to this matter, there was a dispute between
the two experts. Mr Akroyd was of the view that the position was one that,
while there were cracks, particularly in the vicinity of the kitchen, those
cracks were not attributable to the inadequate foundations further to the
south. In relation to that matter, I accept Mr Akroyd’s evidence. I do find
that in fact there had been no settlement caused by the defects by the stage
that the underpinning took place. However, in my view, notwithstanding this,
the plaintiff is entitled to recover the cost of the underpinning. Mr Akroyd
accepted that as the work was being done to the other parts of the bungalow, it
was reasonable to carry out that underpinning. It would only be reasonable to
do that underpinning, as I understand it, if there was some risk of trouble in
the future from the inadequate foundations in that area. That risk would be
something which would amount to damage which would give the plaintiff all she
needs to establish a complete cause of action and, that being the case, it
follows, in my view, that that cost is also recoverable by her.
A similar
argument is advanced by Mr Hicks in relation to the bay window. That also had
not in fact settled. However, the answer to that argument is the same as to the
argument in respect of the inadequate foundations at the south-east corner and
I do not propose therefore to expand upon it.
There remains
the question of limitation and the question of contribution. So far as
limitation is concerned, the proper approach was indicated by Lord Wilberforce
in Anns. He said with regard to the date on which a cause of action
arises, ‘It can only arise when the state of the building is such that there is
present or imminent danger to the health or safety of persons occupying
it.’ Although it was argued to the
contrary, on the evidence which is before me and in particular the evidence
which was given by the plaintiff, whom I found to be the most impressive of
witnesses, I have no doubt that the cause of action in this case arose in 1977
and, that being so, no question of limitation of action arises.
There remains
the question of contribution between the first and second defendants. I was
referred to a case decided by Sir Douglas Frank, sitting as a deputy High Court
judge, in which he took the view that the proper approach was to attribute
three-quarters of the blame to an architect and 25 per cent of the blame to a
local authority in a case which has got similarities to the case here.* I consider that in any case in which one is
looking at the failure to provide proper foundations, the primary
responsibility must remain with the builder. However, in this particular case,
the supervisory role performed by the authority was, as they must have been
aware, of particular importance. There was no architect and Mr Hicks. as I have
already made clear, was very much in need of assistance. Having considered all
the circumstances, it seems to me that the proper apportionment between the
authority and Mr Hicks is to attribute 60 per cent of the blame to Mr Hicks and
40 per cent to the local authority and I order a contribution between the two
defendants on that basis.
*Acrecrest
Ltd v W S Hattrell & Partners (1979) 252 EG 1107, [1979] 2 EGLR
95.
Judgment was
given for £11,511.56, the order against the second defendants being entered for
£200 less. A full order for costs was made against the second defendants (whose
position raised more complex issues of liability), the order against the first
defendant (who was legally aided) being for 75 per cent of the costs, not to be
enforced without leave of the court.
