Negligence–Second purchaser’s claim against builder of seven-year-old house succeeds–Builder cannot rely on purchaser’s failure to obtain full structural survey–Crack visible when purchaser bought could have been caused merely by soil settlement–‘Ordinary people often rely on building society inspections and do not instruct surveyors’
This was a
claim by Mr Peter Sutherland and his wife, Mrs Jean Sutherland, of Mortimers
Avenue, Cliffe, Kent, against C R Maton & Sons Ltd, builders, of Higham,
Kent, for damages for negligence.
Mr J Crowley
(instructed by Church, Bruce, Hawkes, Brasington & Phillips, of Gravesend)
appeared for the plaintiffs, and Mr R Englehart (instructed by D M Landsman
& Co) represented the respondents.
Giving
judgment, COBB J said that the plaintiffs were seeking to recover damages from
the defendants for negligence in and about the preparation, in April 1969, of
the ground on which the bungalow now owned by the plaintiffs was built. The
site in question was a sloping one which was levelled off by the use of clay. What
happened was that the foundations below the walls remained sound but part of
the made-up ground subsided, causing a concrete slab beneath the bungalow to
tilt. This eventually caused the kitchen floor to slope and cracks and gaps to
appear in the walls. The plaintiffs had been put to considerable expense making
good the fault, and this expense constituted part of the damages they were
seeking to recover; he (his Lordship) was however concerned only with liability
and not with damages.
The plaintiffs
bought the bungalow from a Mrs Wootton in 1972. She had bought it from the
defendants in 1969 straight after it was built. The plaintiffs were accordingly
in no position to claim against the defendants in contract, but they alleged
that they were owed a duty of care in negligence and that the defendants were
in breach of this. The defendants denied any duty, denied breach, and pleaded
alternatively that the plaintiffs were at fault in failing to have a full
structural survey carried out before they bought; this, said the defendants,
would have revealed the defects complained of and dissuaded the plaintiffs from
buying. So far as duty of care was concerned, he (his Lordship) was satisfied
that the builder of a house owed a duty to exercise reasonable care in the execution
of his work so as to avoid a defective house, defective in the sense of faulty
through negligent workmanship rather than through use of inferior materials,
known in the trade as building down to the price. It was clear that the duty
was owed not only to the first, but also to each subsequent owner of the house
that was built. In his (Cobb J’s) opinion, the chain of responsibility was not
broken merely because it might be in a particular builder’s contemplation that
a purchaser would have a full structural survey carried out. A builder’s
liability could however end when an examination or survey showing up a fault
operated to break the chain of causation. In the present case, there was
evidence from an inspector who examined the house on behalf of the Hastings
& Thanet Building Society when the plaintiffs were considering buying. The
tenor of the inspector’s evidence was that not every purchaser could be
expected to have an independent, full survey done. He (his Lordship)
nevertheless thought that if circumstances arose to put a prospective purchaser
on his guard, or if there was a survey which showed up defects, but still the
purchaser went ahead and bought, the chain of causation going back to the
builder would probably snap. A final general point was that a builder who was
careless in carrying out his work ought reasonably to foresee the kind of
damage that had occurred in the present case, and the need that would then
arise for pouring concrete into the foundations, and so on.
The issues
that arose in the present case were really two: what the plaintiffs knew, ought
to have discovered and ought to have done in 1972, and whether it had been
proved that the defendants were negligent in the execution of their work in
1969. In this connection, he (his Lordship) would mention that he was satisfied
that Mrs Wootton, the first buyer, had no knowledge of the subsidence before
she sold the bungalow to the plaintiffs. The facts were that in 1972, when the
plaintiffs were living in Gravesend, they became interested in buying the
bungalow. Mr Sutherland noticed a crack in the lounge wall. He spoke to a
builder friend, who advised him not to worry as it was only settlement. In July
the bungalow was inspected–not surveyed–by the building society, and their
inspector regarded it as being of fair speculative construction. The building
society’s report advised the plaintiffs to investigate the cause and make good
the crack in the lounge. The building society’s inspector said in evidence that
the crack could have been due simply to soil settlement, though in fact a full
survey would have revealed the cause of the subsequent trouble. No portion of
the loan was withheld until the work was done. At the time of their purchase
the plaintiffs were not aware of the slope in the kitchen floor, as they
visited the bungalow only when it had furniture in it. It was argued for the
defendants that the crack in the lounge and the slight slope in the kitchen
floor should have caused the plaintiffs to have had a full structural survey carried
out. If they had, it would have been clear that the clay infill under the
concrete slab had subsided. The defect, the defendants submitted, was not
latent, and even if the crack did not amount to a patent defect, it was enough
to cause any reasonable man to have a survey done. It was clear that Mr
Sutherland saw the crack in the lounge, but he knew that the bungalow was only
a few years old, he thought that if anything serious was wrong the building
society would have withheld some of the amount advanced, and he could not
afford a survey. He (his Lordship) accepted that ordinary people relied on
building society surveys and did not instruct surveyors. He did not feel it was
very helpful to consider what had happened in previous cases. He did not feel that
ordinary people would think, seeing a crack, ‘My goodness,
thought the plaintiffs did not act unreasonably in not obtaining a full survey.
They knew the bungalow was new, it looked all right, and there was no warning
from the building society. Also the builder friend had advised that there was
nothing to worry about. No reasonable man would have acted any differently, as
he (Cobb J) saw matters, though possibly an ultra-cautious man might have done,
and accordingly the plaintiffs’ failure to have a survey carried out did not in
his opinion constitute a fault on their part.
Mr Sutherland
noticed the slope in the kitchen floor when Mrs Wootton moved out in September
1972, and he contacted the defendants. The plaintiffs took a year to move in,
and during the interval they noticed more cracks appearing and the slope in the
kitchen floor getting worse. They moved in September 1973, and the bungalow got
slowly worse until 1975, when the plaintiff had work done to correct the fault,
including having concrete poured under the floor. The defendant company had
been taken over by new people since 1969, but they had to be judged on the 1969
state of knowledge. It was fair to say that on the whole this was a well-built
bungalow. However, there was a subsidence of a least 1 1/2 in towards the back
of the bungalow. The subsidence occurred where clay had been used as part of
the infill. Although more was known today than in 1969, it was nevertheless
well appreciated then by competent builders that with soft material like clay,
as little should have been used in the infill as possible. He (his Lordship)
found that the fault was due to the failure by workmen to compact and
consolidate properly, the infilling material, and also to failure by the
builders, at foreman and managerial level, to apply their minds to the problem
and to supervise the works carefully. There had accordingly been a breach of
duty on the part of the defendants, their servants or agents, and there must be
damages for the plaintiffs to be assessed by the official referee.
The
plaintiffs were awarded costs.
