Appeal from decision of Forbes J in an action against a local authority of the Anns v Merton London Borough Council type — Issues as to liability of local authority and as to whether houseowners’ claim was statute-barred under Limitation Act 1939 — House built with defective foundations — Concrete raft, itself faulty, on foundations composed partly of natural soil and partly of filled material including quantities of miscellaneous inorganic matter — Uneven settlement and subsidence — Foundations should have been carried down to a sufficient depth on piers or piles — Judge’s conclusion that the local authority had been negligent in passing the plans and in inspecting the work upheld by Court of Appeal — Review of cases on application of the Limitation Act 1939 — Distinction between injury to a person exemplified in Cartledge v E Jopling & Sons Ltd (although affected by later legislation) and damage to a house as dealt with in Sparham — Souter v Town and Country Developments (Essex) Ltd and in the Anns case — Time begins to run in favour of a local authority if the building suffers damage, or an event occurs, which reveals the authority’s breach of duty or which would cause a prudent owner-occupier to make investigations which, if properly carried out, would reveal the authority’s breach of duty — In the present case the judge was justified in finding on the evidence that the action was started well within the limitation period — Appeal by local authority dismissed
This was an
appeal by Charnwood Borough Council from a decision of Forbes J in favour of
James Reginald Dennis and his wife, Evelyn Doris Ada Dennis, in an action
brought by them against the authority for negligence following the emergence of
serious structural damage to a house the plans for which had been approved by
the authority and the foundations of which had been inspected by the
authority’s building inspector.
Igor Judge QC
and Nigel Baker (instructed by Browne, Jacobson & Roose, of Nottingham)
appeared on behalf of the appellant authority; Richard Tucker QC and Rex Tedd
(instructed by Owston & Co, of Bicester) represented the respondents.
Giving the
first judgment at the invitation of Lawton LJ, TEMPLEMAN LJ said: By section 61
of the Public Health Act 1936, as originally enacted, a local authority had
power to make regulations which might include provisions for the deposit of
plans of buildings and for the inspection of building work. By section 64 the
local authority must reject the plans if they are defective or show that the proposed
work would contravene any of the building regulations.
In 1953 the
Rural District Council of Barrow-upon-Soar, the predecessors of the appellant
defendants, the Charnwood Borough Council, made building byelaws by regulations
under section 61 of the Act. Byelaw 2(3) and Part C of the First Schedule
require every person who intends to erect a building, other than certain exempt
buildings not here material, to give notice of his intention and to deposit
plans and particulars. Byelaw 6 requires a builder to give prior notice in
writing to the council of the date and time of the commencement of building
operations and before the covering up of (inter alia) any foundation. If
a builder fails to give the requisite notice the surveyor of the council may
require him to cut into, lay open or pull down so much of the building works as
prevents the surveyor from ascertaining whether any of the byelaws have been
contravened.
In 1955 the
respondent plaintiffs, Mr and Mrs Dennis, commissioned a local builder to build
a house and the plan was duly submitted to and passed by the council.
The first
question is whether the council, when they considered and passed the plan of
the house, owed any duty of care to Mr Dennis. In Anns v Merton
London Borough Council [1978] AC 728 the House of Lords decided that under
the Public Health Act 1936 local authorities owe a duty to give proper
consideration to the question whether they should inspect the carrying out of
any building work. If they decide to inspect, they are under a duty to use
reasonable care in carrying out their supervisory function of ensuring
compliance with the building byelaws but only within the limits of discretion
bona fide exercised as to the time and manner of inspection: per Lord
Wilberforce at p 755. The duty is owed to the owner or occupier at the date
when damage occurs as a result of a breach of duty by the local authority. The
duty is not owed to a negligent building owner who is the source of his own
loss: per Lord Wilberforce at p 758.
In my judgment,
if local authorities are liable within the limits prescribed in the Anns
case for negligence in connection with the discretionary inspection of building
works, they must similarly be liable for negligence in failing to use
reasonable care in considering and approving plans.
There is no
suggestion that Mr and Mrs Dennis, the building owners, were negligent or the
source of their own loss. They were entitled to trust the builder and the
council. They were entitled to claim damages against the builder if he was
negligent. They were entitled to claim damages against the council if the
council were negligently in breach of their duty to take reasonable care in the
consideration of the plan of the house or in the exercise of their supervisory
and discretionary power of inspection.
Byelaw
18(1)(a) provides that the foundations of every building shall be so designed
and constructed as to sustain the relevant loads and to transmit those loads to
the ground in such a manner that the
stability of the building. Byelaw 18(1)(b) provides that the foundations of
every building shall be taken down to such a depth, or be so designed and
constructed, as to safeguard the building against damage by swelling or
shrinking of the subsoil. Byelaw 19(1) provides that the foundations of a
domestic building constructed as strip foundations of plain concrete situated
centrally under the walls or piers shall be deemed to satisfy the requirements
of byelaw 18(1)(a) if inter alia there is no wide variation in the type
of subsoil over the loaded area and no weaker type of soil exists below that on
which the foundations rest within such a depth as may impair the stability of
the structure.
The plan for
the house to be built for Mr and Mrs Dennis disclosed that the house was to be
supported by a concrete raft. Experience proved that the raft was an inadequate
foundation for the house. The raft did not sustain the load of the house, so
that there was settlement which impaired that stability of the building which
was required by byelaw 18(1)(a). The foundations of the house were not taken
down to such a depth and were not so designed and constructed as to safeguard
the building, as required by byelaw 18(1)(b), against damage by swelling or
shrinking of the subsoil. There were four reasons why the raft and the
foundations of the house were inadequate for their purpose. First, the raft was
constructed partly on natural soil and partly on soil which filled in the site
of sand extraction. This caused uneven settlement and subsidence which in turn
caused the raft to tilt and crack. Secondly, the infilling soil was clay which
contracts and expands and reacts differently from natural sand soil. Thirdly,
the infilling soil included quantities of inorganic matter which occasioned
uneven settlement and subsidence. Fourthly, when the raft came to be installed,
it was constructed by the builder in two halves and those halves were not
properly welded together. This defect was concealed from the council. It was a
defect which, in the circumstances, further impaired the stability of the
building. Although the learned judge, Forbes J, did not make any express
finding on this aspect of the matter, I deduce from the evidence that the raft
would have been inadequate to sustain the building even if it had been properly
constructed. At any rate, the council have not argued the contrary.
The second
question which arises on this appeal is whether the council were negligent in
passing the plan of the house. In 1955 it was known that the house was to be
erected on the site of a former sand pit. The builder’s son gave evidence that
‘we all thought it had been filled with hard material’. In these circumstances,
the council’s surveyor insisted on a raft foundation.
It was
submitted on behalf of the council that, in view of the fact that the council
were only concerned to carry out their role under the Public Health Act 1936,
they were entitled as against the building owner to assume that, if a plan made
provision for the installation of a concrete raft of the nature disclosed in
the present case, then such a raft would be adequate for its purpose. But the
very proposal to install a concrete raft revealed that the house was to be
built on madeup ground. In my judgment, that revelation cast on the council the
duty of considering whether the raft would in fact be adequate for its purpose.
If the council were not satisfied that the raft was adequate for its purpose
then they must reject the plan as being defective or as failing to comply with
the byelaws.
It was then
submitted that the dangers of building on made-up ground were not appreciated
in general in 1955 and are only apparent in the present case with hindsight. It
was said that it is too much to expect a busy council surveyor to have been
conscious of all the possible dangers in 1955. But the evidence was that the
dangers of building on made-up ground were appreciated as early as 1949 when
the Building Research Station published a report for the guidance of surveyors.
That report pointed out that in the past the control exercised in filling waste
ground had not been such as to ensure that the site would be suitable for the
support of buildings with normal type foundations. The time required for a fill
to reach a sufficient degree of natural consolidation to make it suitable as a
foundation depended mainly on the following factors: the nature of the material
comprising the fill, the depth of the fill, the method of placing, the nature
of the underlying natural ground and the drainage conditions. It was not
possible to lay down general rules and each case needed to be considered on its
merits. Fills containing a large proportion of very fine grade materials like
clay took a very long time to consolidate sufficiently. The actual time
depended mainly on the method of placing and the depth of the fill. Fills of
mixed compositions, especially if they were loosely tipped in random fashion,
were likely to give variable support to foundations. Unless it was known that
the fill was composed of the best type of material, or had been placed by
rolling in thin layers, it was always advisable to put test pits down into the
fill and by inspection of the sides to estimate the extent to which natural
compaction had proceeded. The foundation must then be designed to suit the
conditions revealed. Special care should be taken with buildings sited near the
edges or filled ground; in particular, placing a building partly on the natural
ground and partly on fill should be avoided. Instead of this the foundations
should be carried down to the natural ground by piers or piles.
On behalf of
the council, Mr Judge emphasised that portion of the report which said that:
‘Where some degree of uneven bearing cannot be avoided, even though the fill has
undergone a certain amount of consolidation, a concrete raft reinforced top and
bottom is particularly suitable for light structures such as houses.’ In my judgment, however, the thrust of the
article is that nothing should be done without full information. The article
does not support the submission that the council in the present case were
entitled to assume that the raft would be adequate for its purpose.
Next it was
submitted that the council were entitled to accept the raft as being adequate
having regard to the belief that the sand pit had been filled up with hard
material. In my judgment, on proof that the raft was inadequate for its
purpose, the onus lies on the council to show that it was reasonable for the
council to accept the plan in the light of the information which the council
sought and possessed. Unfortunately for the council, the lapse of time has
destroyed all their records and we only know that they thought the sand pit had
been filled up with hard material. We do not know on what evidence this belief
was based. We do know that the belief was unfounded. Moreover, it appears from
the article published by the Building Research Station that many other factors
ought to have been considered as well as the nature of the material used for filling.
If the council had no further information they should have insisted that
further information be supplied by the owner, information sufficient to enable
the council to be satisfied that the plan was not defective in the
circumstances.
At the trial
the learned judge, Forbes J, came to the conclusion on the evidence available
that the council had been negligent in passing the plan when they did not know
that the house was to be constructed partly on natural ground and partly on
filled ground and they did not know anything about the nature of the fill save
that they believed, inaccurately, that it consisted of hard material and they
did not know anything about the manner in which the filling had been carried
out. In my judgment, the learned judge reached a correct conclusion.
The learned
judge also reached the conclusion that the council had been negligent in not
discerning that the concrete raft had been constructed of two halves badly
welded together. The only justification for this conclusion is that the
council’s inspector ought to have realised that the raft was covered by a thin
screed which could only have been designed to conceal the true facts from
inspection. I am not wholly convinced that it was the duty of the surveyor to
inspect the raft unless he had reason to distrust the builder and I am not
wholly convinced that inspection would or should have led the inspector to
realise that deception was being practised upon him. But in all the
circumstances I do not feel able to reject the findings and conclusions of the
learned judge on this aspect of the matter. In any event, the council cannot
escape liability having regard to the conclusion reached by the learned judge,
and with which I have expressed agreement, namely, the conclusion that the
council were negligent in passing the plan.
The third
question which arises on this appeal is whether the plaintiffs’ action is
barred by the Limitation Act 1939. Section 2 of that Act provides that actions
founded on tort shall not be brought after the expiration of six years from the
date on which the cause of action accrued. Where, as in the present case, the
tort is actionable only on proof of damage, time runs only from the date of
damage: see Darley Main Colliery Co v Mitchell (1886) 11 App Cas
127. Time still runs even though the plaintiff is unaware either of the
commission of the tort or the fact of damage until after the period of
limitation has expired. By section 26 the period of limitation does not begin
to run in cases of fraud or mistake until the plaintiff has discovered the
fraud or mistake or could with reasonable diligence have discovered it. In the
present case there being neither fraud nor mistake the period of limitation
began to run from the date of damage. Thus in Cartledge v E Jopling
& Sons Ltd [1963] AC 758 a workman suffered substantial injury to his
lungs. Before that injury could be discovered by any means known to medical
science the limitation period expired. He was unable to recover damages from
his employer because ‘the cause of action accrues at the date of the loss or
damage when there has been a wrongdoing by the defendants from which loss or
damage (not being insignificant) is suffered by the plaintiff irrespective of
his knowledge of such loss or damage’. The
than six years before the date of the writ and therefore the plaintiff’s action
was barred by the Limitation Act 1939. Lord Pearce said at p 779: ‘It is a
question of fact in each case whether a man has suffered material damage by any
physical changes in his body. Evidence that those changes are not felt by him
and may never be felt tells in favour of the damage coming within the principle
de minimis non curat lex. On the other hand, evidence that in unusual
exertion or at the onslaught of disease he may suffer from his hidden
impairment tells in favour of the damage being substantial. There is no legal
principle that lack of knowledge in the plaintiff must reduce the damage to
nothing or make it minimal.’ In Cartledge
v E Jopling & Sons Ltd the House of Lords were dealing with a
wrongful act which caused physical damage to the human body. Damage is
sustained when the body is materially affected by the tort although the
plaintiff may not be aware of the symptoms and, if he is aware of the symptoms,
may not be aware of the cause.
In Sparham-Souter
v Town & Country Developments (Essex) Ltd [1976] QB 858 this court dealt
with a tort which at the time when the tort was committed did not cause any
damage. The tort consisted of building a house with defective foundations.
Until the defect manifested itself the occupiers of the house were not put to
any expense or inconvenience. Until the defect manifested itself the owner did
not suffer because he did not have to carry out remedial works and he could
sell the house on the open market at a price which was not affected by the
unknown tort or the unknown defect. Once a defect becomes manifest the
occupiers may suffer loss or damage or inconvenience and the owner may suffer
loss or damage by being forced to pay for remedial works or being forced to
accept a lower price for his property.
The
distinction between damage caused to the owner of the human body as in Cartledge
v Jopling and damage caused to the owner of a house as in Sparham-Souter
v Town & Country Developments may seem delicate and surprising. In Cartledge
v Jopling the House of Lords recognised that a hardship was caused to a
plaintiff whose body is injured and whose claim is barred because he continues
in ignorance of his condition. That hardship was alleviated in the case of
personal injuries by the Limitation Act 1963, which prevents time from running
until the plaintiff has knowledge actual or constructive of the commission of a
tort and the existence of a reasonable cause of action.
In Sparham-Souter
this court expressed views as to the date when a cause of action accrues in
connection with the negligent construction of a house with defective
foundations. Lord Denning MR said at p 868 that a cause of action ‘accrues, not
at the time of the negligent making or passing of the foundations, nor at the
time when the latest owner bought the house, but at the time when the house
began to sink and the cracks appeared. That was the first time when any damage
was sustained’. Roskill LJ said at p 875 that a plaintiff in the position of a
first or subsequent purchaser ‘suffers the damage which is the second
prerequisite of his cause of action in tort when, but only when, the defective
state of the property first appears’. It seems to me that this must also apply
to a plaintiff in the position of a building owner who has not himself been
negligent. It has not been argued that a building owner who employs a builder
as his agent can recover only against the negligent builder and not against the
negligent local authority which approved the plans or inspected the building
work. Geoffrey Lane LJ (as he then was) at p 880, dealing with a plaintiff
purchaser said:
If the
defects in the building had not become apparent during his ownership, he would
have suffered no damage. It is the emergence of the faults, not the purchase of
the house, which has caused him the damage. There is no proper analogy between
this situation and the type of situation exemplified in Cartledge v E
Jopling & Sons Ltd [1963] AC 758 where a plaintiff due to the
negligence of a defendant suffers physical bodily injury which at the outset
and for many years thereafter may be clinically unobservable. In those
circumstances, clearly damage is done to the plaintiff and the cause of action
accrues from the moment of the first injury albeit undetected and undetectable.
That is not so where the negligence has caused unobservable damage not to the
plaintiff’s body but to his house. He can get rid of his house before any
damage is suffered. Not so with his body.
In Anns
v Merton London Borough Council the views of the Court of Appeal in Sparham-Souter
were approved and Lord Wilberforce said at p 760 that the cause of action ‘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 ocupying it’. Lord Salmon at
p 770 in expressing approval of the views of the Court of Appeal in Sparham-Souter
accepted ‘that the true view is that the cause of action in negligence accrued
at the time when damage was sustained as a result of negligence, ie when the
building began to sink and the cracks appeared’. Lord Salmon also said that the
plaintiff would be statute-barred ‘if it could be proved that the building
suffered damage . . . which endangered the safety of its occupants or visitors’
more than six years before the issue of the writ.
From the
guidance afforded by the authorities I conclude that the present state of the
law is as follows. First, a local authority is under a duty to take reasonable
care in deciding whether plans required by the building regulations are
defective. Secondly, a local authority is under a duty to take reasonable care
to decide whether and when to exercise its discretionary powers to inspect
buildings and to take reasonable care in carrying out any inspection. Thirdly,
a local authority is only liable for breach of duty if it fails to exercise reasonable
care in the performance of its statutory functions and as a result allows the
erection of a building which has defects likely to cause damage or discomfort
to the occupiers, being defects which a prudent local authority exercising its
statutory powers would have required to be eliminated. Fourthly, a local
authority can be made liable for breach of duty at the suit of an owner or
occupier who suffers damage as a result of the breach. Fifthly, time begins to
run under the Limitation Act 1939 in favour of a local authority when as a
result of the failure of the local authority to use reasonable care in the
performance of its statutory functions the building suffers damage which causes
danger or discomfort to the occupiers. And sixthly, time begins to run in
favour of a local authority before danger or discomfort ensues to the occupiers
of the building if the building suffers damage or an event occurs which reveals
the breach of duty by the local authority or which would cause a prudent
owner-occupier to make investigations which, if properly carried out, would
reveal the breach of duty by that local authority.
It is not
every failure by a local authority to discover a defect in a plan or a defect
in a building which imposes liability on the authority. If the defect is not
discoverable by reasonable care in the exercise by the local authority of its
statutory functions or if the defect does not constitute a likely threat to the
safety or comfort of the occupiers then the local authority is not in breach of
its statutory duty, which is of a supervisory nature only. The builder may be
liable for defects for which the local authority is not liable. Moreover, if
the defect is such that the building is not likely to be a danger or source of
discomfort for the normal life span of the building, then I consider that the
local authority is not liable. The present case illustrates the very great
difficulties under which local authorities labour when their breach of duty is
said to date back 20 years or more.
In the present
case damage was suffered by the house when cracks appeared in 1961, when
further cracks appeared in 1966 and when further more serious cracks appeared
in 1976. The evidence showed that no unusual cracks or warning indications
appeared in the house until 1966 and thereafter there were no indications of
serious defects until about 1976 when investigations showed that the concrete
raft was inadequate and badly constructed and that the house was or was likely
to become unsafe for four reasons which were recorded by the learned judge.
Those reasons were, first, that the house was sited partly on natural soil and
partly on filled soil; secondly, the use of clay as a filling agent; thirdly,
the dumping in parts of inorganic matter; and fourthly, the construction of the
raft in two halves imperfectly welded together. The writ was issued in 1978 and
the action by the plaintiffs is therefore time-barred if by 1966 the house had
suffered damage which indicated the possibility that the foundations were
defective.
The only
witnesses as to what took place in 1966 were Mr Dennis and a jobbing builder,
Mr Adams, who was employed by Mr Dennis. Their recollections in 1981 were
inevitably imperfect. The judge dealt with their evidence in four parts of his
judgment. On p I he said this:
In 1966
further cracks developed and Mr Dennis called in Mr Adams again. This time it
was more serious. Mr Adams thought that part of the foundations were sinking
where the garage extended forward of the house itself. He knew that the house
was built on a raft, and he dug down to see what the foundations were made of.
He broke a bit off by the garage to see whether the proper reinforcement was
there. He discovered it was. But because he thought the pieces of foundations
which supported the garage had sunk a bit he poured in some concrete and put in
a few angle irons to hold it up. He was quite satisfied that the main
foundations were sound and told Mr Dennis so.
At p 14 the
learned judge said:
Mr Adams was
also called in on the second occasion in 1966. Here the position was more
serious. The cracks occurred at the corner of the house in the angle between
the face of the house and the garage, whose wall was at right angles to and
projected forward of that face. These cracks, I find, did affect the brickwork
but only at this point. Mr Adams cut out the cracked bricks and replaced them.
Interestingly, he said: ‘If it had been lime mortar the bricks would not have
cracked, but as it was cement mortar they did.’
He had no fears for the foundations as such but thought they needed a
little
to make sure the raft was there and broke away some of the concrete to make
sure there was reinforcement. He satisfied himself about both these matters but
decided to pour in some concrete in this area and to place a few angle irons
for reinforcement. . . . It was a small job and cost £40 to £50. Mr Adams said
that he did not think there was any question-mark about the stability of this house,
that he was satisfied with the raft as he saw it, and that there was no concern
about the crack he saw. And that is what he told Mr Dennis. . . . I feel
satisfied, on consideration of all the evidence about the 1966 crack, that Mr
Adams realised it had something to do with the foundations of the house but
thought, and thought reasonably, that it was a comparatively trivial matter,
localised and not affecting the foundations of any other part of the house. I
am also satisfied that Mr Adams, as a competent small builder of experience,
told Mr Dennis so and that Mr Dennis in good faith accepted that advice.
At p 16 the
learned judge said:
The 1966
cracks present a different picture. There seems no doubt that Mr Adams
recognised that the crack in the angle of the house and garage was due in some
way to settlement of the foundations. Within his competence as a small builder
he considered that any settlement did not affect the main foundations of the
house, which in his view were sound. His attempt at underpinning was, again
within his competence, reasonable and intended to stabilise locally what he
reasonably saw as a local problem. I could not accept that Mr Dennis, having
been given the advice he was given by Mr Adams, should as a reasonable and
prudent house-owner have sought further advice from a surveyor, much less from
engineers expert in foundation work. . . it is my considered opinion that any
surveyor called in by Mr Dennis in 1966 would in all probability have reached
the same conclusion and tendered the same advice. On the other hand I am
satisfied that if engineers, expert in foundation works, had been called in in
1966 they, in all probability, would have been able to attribute the 1966
cracks to defective foundations and discovered the existence of the hinged
raft.
After
consideration of the authorities to which I have referred, the learned judge
concluded at p 22:
I am
satisfied on the evidence that a competent surveyor — the expert whom one would
reasonably expect to diagnose a fault of this kind if anyone could — would not
have discovered the defect from the symptoms which occurred until at the
earliest 1977 . . . the fault did not emerge and could not reasonably have been
discovered until . . . June 1977. The action was therefore started within the
limitation period.
The action was
tried by the learned judge at Lincoln in October 1981 and he delivered a
reserved judgment on December 21 1981. The judgment is lucid and clear and
contains a careful and perceptive analysis of the relevant authorities. I agree
with the findings and conclusions of the learned judge and would dismiss the
appeal.
FOX LJ: I have
had the advantage of reading in draft the judgment which my Lord has just
delivered. I agree with it and I would dismiss the appeal.
Also agreeing
that the appeal should be dismissed, LAWTON LJ said: Our decision ensures that
an elderly couple who 27 years ago got bad service from a builder will not
suffer loss; but what they gain will be at the expense of the ratepayers of the
Charnwood Borough Council because of a regrettable but probably
uncharacteristic and casual failure to take care in 1955 by the building
inspectorate of a small local authority now absorbed into a larger authority.
That authority have no relevant records of what happened all those years ago.
This result has come about as a result of three decisions of the courts within
the past 10 years, two in this court (Dutton v Bognor Regis UDC
[1972] 1 QB 373 and Sparham-Souter v Town & Country Developments
(Essex) Ltd [1976] QB 858) and one in the House of Lords (Anns v Merton
London Borough Council [1978] AC 728).
For my part, I
find reconciling Sparham-Souter with the reasoning in an earlier House
of Lords case, Cartledge v E Jopling & Sons Ltd [1963] AC 758
difficult despite the seeming approval, at least in part, of the former case by
the House of Lords in the Anns case. If this were not enough, the period
of limitation as formulated in the Sparham-Souter case in relation to
the liability of the builders for defective work for or in connection with
dwelling-houses is different from that enacted by Parliament in the Defective
Premises Act 1972 (see section 1(5)) which applies the same approach as Cartledge
v E Jopling & Sons Ltd did before the law was changed by the
Limitation Act 1963 in respect of personal injuries but not in respect of other
kinds of damage, including the kind suffered by the plaintiffs in this case.
In the Anns
case the opinion was expressed by Lord Salmon that that decision was not likely
to lead to a flood of litigation (see p 767). His optimism is not, so I
understand, the experience of some local authorities. Building companies,
particularly those doing bad work, have a propensity to go into liquidation and
when this happens house-owners now look to local authorities for compensation.
When defective foundations are put down, a building time-bomb is hidden under
the house built upon them which may years later go off, bringing financial
disaster to the owner or occupier. It is, in my opinion, unfortunate that in
such situations relief for those who suffer loss should, as in this case, turn
upon memories of what happened and what was noticed years ago and the chances
of litigation. A compulsory insurance scheme for builders of houses might
provide better justice than the uncertainties of litigation.
The appeal was
dismissed with costs, with an order for legal aid taxation of the respondents’
costs and with interest on the judgment at the statutory rate. Leave to appeal
to the House of Lords was given on undertakings on behalf of the appellants as
to costs in the House and other matters.
