ATTORNEY(S) ACTS. That no inspections of the foundations by the council took place. But I think that the time has come when we can and should" say that it ought to apply unless there is some justification or valid" explanation for its exclusion. See Gallagher v. N. McDowell Ltd. (1961) N.I. Both the allegations in the statement of claim and those in the particularswere to some extent misconceived as I shall show later. Anns v Merton; House of Lords. In so decidingthe judge (correctly) followed an observation (obiter) by Lord Denning,M.R. As was well said, publicauthorities have to strike a balance between the claims of efficiency and thrift(du Parcq L.J. 87, 88. Anns v Merton London Borough Council [1977] UKHL 4, [1978] AC 728 was a judicial decision of the supreme court at its date. The facts are well known: there was a very high tide whichburst the banks protecting the respondent's land. And because it is not absolute, the necessarypremise for the proposition " if no duty to inspect, then no duty to take" care in inspection " vanishes. 569; and (I citethese merely as illustrations, without discussion) cases about " economic loss "where, a duty having been held to exist, the nature of the recoverable damageswas limited. It was also contended on behalf of the appellants that the plaintiffs do noteven allege that they relied upon the inspection of the foundations by thecouncil. Section: Legal Case Document Next: Watson and another v Croft Promosport Ltd Previous: Van Colle and another v Chief Constable of Her... Have you read this? You can login or register a new account with us. The immunity ofa landlord who sells or lets his house which is dangerous or unfit for habitationis deeply entrenched in our law. As to two. They must, and in fact do, make their discretionary decisions responsiblyand for reasons which accord with the statutory purpose; c.f. Thisis, I think, the key to understanding of the main authority relied upon by therespondents—East Suffolk Rivers Catchment Board v. Kent [1941] AC 74. The problem which this type of action creates, is to definethe circumstances in which the law should impose, over and above, or perhapsalongside, these public law powers and duties, a duty in private law towardsindividuals such that they may sue for damages in a civil court. By section 65, if anywork to which building byelaws are applicable contravenes any byelaw, theauthority may require the owner to pull down the work, or, if he so elects,to effect such alteration as may be necessary to make it comply with thebyelaws. Further or in the alternative the said damage has been caused by" the negligence of the Second Defandants in allowing the First Defendants" to construct the said dwelling house upon foundations which were only" 2' 6" deep instead of 3 feet or deeper as required by the said plans," alternatively of failing to carry out the necessary inspections sufficiently" carefully or at all, as a result of which the said structural movement" occurred.". He thereforeconcluded that in Higgins v. Arfon Council and in the instant case, it had beenwrongly decided that the action was statute barred, and as I read their judgmentsRoskill and Geoffrey Lane, L.JJ. These are the sources and citations used to research Overrules Anns v merton. (C.A.) On 19th March 1971, we findthe Borough Surveyor writing to the tenants' solicitors: " I regret that I am unable to trace any record of statutory inspections . There are a wide varietyof instances in which a statement is negligently made by a professional manwhich he knows will be relied upon by many people besides his client, e.g. Anns v Merton [1978] AC 728. claimants were lessees of flats. 197, 203, Diplock L.J. Powers are undoubtedly conferred on the council in order to enable it toinspect the foundations and ensure that any defects which the inspection mayreveal are remedied before the erection of the building begins. It also briefly takes into account the other tests for establishing duty of care i.e. It is in thiscontext that the distinction sought to be drawn between duties and merepowers has to be examined. Let us examine the Public Health Act 1936 in the light of this. Anns v Merton 1977 This case could mark the English courts as willing to accept claims for pure economic loss in negligence of the high points. Anns v Merton London Borough Council | Legal Concepts | Lawsuit is: pin. Anns v Merton LBC. Facts. So I do not think that there is any basis here for arguingfrom a supposed immunity of the builder to immunity of the council. 692, 715 and from the judgments of the New ZealandCourt of Appeal (furnished by courtesy of that Court) in Bowen v. ParamountBuilders (Hamilton) Ltd. and McKay, C.A. It was suggested in argument for the respondent that the cases of Cooke v. Midland Great Western Railway of Ireland [1909] AC 229 and Lowery v. Walker showed that, even towards trespassers, the duty was higher than that which I have stated. Merton London Borough Council. Whether it ispossible to prove that damage to the building had occurred four years beforeit manifested itself is another matter, but it can only be decided by evidence. Pages 751-752. The extractsfrom the letters I have just read do not suggest that this is likely to impose anyinsuperable difficulties upon them. Those builders had employed civil engineers to design the foundations. 4 of 1980) [1981] A-G Reference (No. It established a broad test for determining the existence of a duty of care in the tort of negligence called the Anns test or sometimes retronymically the two-stage test. It is not, at this stage, established when or whether anyinspection was made. Why Anns v Merton LBC is important. Marks era of 'liability expansion' amidst a back drop of 'collectivist politics' in 60/70s. The claimant tenants in the flat … falls through ashoddily constructed floor and is seriously injured, just because the contractorhappens 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 contractorhad also negligently built on someone else's land, he would not be immune fromliability. This is clearly the basis on which Lord Romer,whose speech is often quoted as a proposition of law, proceeded. This bibliography was generated on Cite This For Me on Friday, May 22, 2015. It imposes an obligationto submit plans. Kent v East Suffolk Rivers Catchment Board [1940] 1 KB 319, 332. Whilst it allowed the liberal expansion of the law, and encouraged the thorough consideration of policy factors in a judgement, it was too generous and created confusion. To me thetwo significant points about the case are, first, that it is an example, and agood one, where operational activity—at the breach in the wall—was still wellwithin a discretionary area, so that the plaintiff's task in contending for a dutyof care was a difficult one. I respectfully think thatLord Denning, M.R. The contrary view seems to me to be entirelyirreconcilable with logic or common sense. The procedural issues, the undisputed facts, the relevant statutory provisionsand the byelaws made under them are fully and lucidly expounded in Part Iof the speech of my noble and learned friend Lord Wilberforce which Igratefully adopt and need not repeat. Even if the inspector did not give the builders any intimation as to his viewof the foundations, the builders would have naturally assumed from thecouncil's silence after the inspection that they (the builders) had the council'sblessing to build on the existing foundations. " This test was introduced in the United Kingdom in the case of Anns v. Merton London Borough Council [1977] 2 All ER 492; it was adopted in Canada in City of Kamloops v. 3. I have, my Lords, had an opportunity to consider closely in draft the speechdelivered by my noble and learned friend on the Woolsack. judgmentin Sheppard v. Glossop Corporation [1921] 3 K.B. I certainly do not agree with the words in thatpassage " even if he has constructed the defects himself ". So would the costs of rectifying anydamage to the individual maisonettes and the reasonable expense incurred byany of the plaintiffs should it be necessary for them to find alternativeaccommodation whilst any of the structural repairs were being carried out. resolve to inspect the foundations of aproportion of all buildings or of all buildings of certain types in its locality. Building Act 1984. By clicking on this tab, you are expressly stating that you were one of the attorneys appearing in this matter. 2) [2005], A-G of Belize v Belize Telecom Ltd [2009], Actionstrength Ltd v International Glass Engineering [2003], Adamson v Motor Vehicle Insurance Trust [1956, Australia], Adealon International Corp Proprietary v Merton LBC [2007], Adler v Ananhall Advisory and Consultancy Services [2009], Al-Mehdawi v Secretary of State for the Home Department [1989], Alcock v Chief Constable of South Yorkshire Police [1991], Alfred McAlpine Construction v Panatown [2001], Allam & Co v Europa Poster Services [1968], Amalgamated Investments and Property Co v Texas Commerce Bank [1982], Amiri Flight Authority v BAE Systems [2003], Anderson v Pacific Fire & Marine Insurance Co [1872], Anglo Overseas Transport v Titan Industrial Group [1959], Anisminic v Foreign Compensation Commission [1969], Anns v Merton London Borough Council [1978], Anton’s Trawling Co v Smith [2003, New Zealand], Ashley v Chief Constable of Sussex Police [2008], Assange v Swedish Prosecution Authority [2011], Assicuriazioni Generali v Arab Insurance Group [2002], Associated Provincial Picture Houses v Wednesbury Corporation [1948], Attica Sea Carriers v Ferrostaal Poseidon [1976], Attorney General (on the relation of Glamorgan County Council) v PYA Quarries [1957], Attorney General for Jersey v Holley [2005], Attorney General of Ceylon v Silva [1953], Attorney General v De Keyser’s Royal Hotel [1920], Attorney General v Jonathan Cape Ltd 1976, Attorney-General of Hong Kong v Humphrey’s Estate [1987], Attourney General v Body Corp [2007, New Zealand], B&Q v Liverpool and Lancashire Properties [2001], Baird Textile Holdings Ltd v Marks and Spencers Plc [2001], Banco de Portugal v Waterlow & Sons [1932], Bank of Ireland Home Mortgages v Bell [2001], Barclays Wealth Trustees v Erimus Housing [2014], Barnard v National Dock Labour Board [1953], Barnett v Chelsea and Kensington Hospital [1969], Barrett v Enfield London Borough Council [1999], Bedford Insurance Co v Instituto de Resseguros do Brazil [1984], Berrisford v Mexfield Housing Co-operative Ltd [2011], Birmingham Citizens Permanent Building Society v Caunt [1962], Birmingham Midshires Mortgage Services v Sabherwal [2000], Blackhouse v Lambeth London Borough Council [1972], Blackpool Aero Club v Blackpool Borough Council [1990], Blythe & Co v Richards Turpin & Co (1916), Boddington v British Transport Police [1998], Bolitho v City & Hackney Health Authority [1997], Boston Deepsea Fishing Co v Farnham [1957], Bristol & West Building Society v Ellis [1996], Bristol & West Building Society v Henning [1985], Bristol & West Building Society v Mothew [1998], British Fermentation Products v Compare Reavell [1999], British Oxygen Co v Minister of Technology [1971], British Westinghouse v Underground Electric Railway [1912], Bruton v London & Quadrant Housing Trust [2000], Buckland v Guildford Gaslight & Coke Co [1949], Bushell v Secretary of State for the Environment [1981], Butler Machine Tool Co v Ex-cello-corp [1979], C-110/05 Commission v Italy (Motorcycle Trailers) [2009], CAL No. aware of their existence ". It will be for the tenants, with the help of interrogatories,discovery of documents and a search for fresh witnesses to establish, on abalance of probabilities, that such an inspection did take place. It must be related to the fact that oncethe inspector has passed the foundations they will be covered up, with nosubsequent opportunity for inspection. At any rate he could have made no report to the council asto their inadequacy; otherwise the council would or certainly should haveensured that the builders made the foundations conform with the bye-lawsbefore the council allowed the building to be erected upon them. I respectfully agree with and adopt that passage in Lord Reid's speechwhich, to my mind, is just as apt in the instant case as it was in the DorsetYacht Ltd. Co. case. Facts. The speeches of their Lordships contain discussion of earlierauthorities, which well illustrate the different types of statutory enactmentunder which these cases may arise. Interact directly with CaseMine users looking for advocates in your area of specialization. Previous: Morgan Crucible Co plc v … whether there was a duty owed to the Plaintiffand v/hat was its nature] " I cannot help thinking that the argument" did not sufficiently distinguish between two kinds of duties: (1) A" statutory duty to do or abstain from doing something, (2) A common" law duty to conduct yourself with reasonable care so as not to injure" persons liable to be affected by your conduct " (loc. Cases & Articles Tagged Under: Anns v Merton London Borough Council [1977] UKHL 4 | Page 1 of 1. Anns v Merton London Borough Council; Court: House of Lords: Full case name: Anns and others v London Borough of Merton: Decided: May 12, 1977 () Citation(s) [1977] UKHL 4 [1978] AC 728 [1977] 2 All ER 492 [1977] 2 WLR 1024: Case history; Prior action(s) Judgment for defendant at first hearing on the basis that the plaintiffs were statute barred. Also known as: Anns v Walcroft Property Co Ltd. Free trial. Building Act 1984. (b) before the covering up of any drain, private sewer, concrete or othermaterial laid over a site, foundation or damp-proof course. 5 458) still survives. We are concerned particularly with thesafeguards relating to building foundations; these foundations are clearlyof the greatest importance because the stability of the building depends uponthem and they are covered up at a very early stage. in his judgment expressly disavowed his earlier dictum in Button's case.On this view of the matter none of the present plaintiffs' claims would bestatute barred. Before the appeal came on, namely on 10 February 1976 theCourt of Appeal (Lord Denning, M.R., Roskill and Geoffrey Lane, L.JJ.) 2) [2001], R v Higher Education Funding Council, ex p Institute of Dental Surgery [1994], R v Hillingdon London Borough Council, ex p Royco Homes [1974], R v Home Secretary ex parte Fire Brigades’ Union [1995], R v Hull Board of Visitors, ex p St Germain (No .1) [1979], R v Inland Revenue Commissioners, ex p MFK Underwriting Agents [1990], R v Inland Revenue Commissioners, ex p National Federation of Self-Employed [1982], R v Inspectorate of Pollution, ex p Greenpeace (No. Precedent (Court of Appeal & Supreme Court) pin. Email this Article ... Anns v merton london borough council Facts. Undoubtedlyit lays out a wide area of policy. Ireject this argument and confess that I cannot detect that it has even anysuperficial attraction. 2) [2005] A-G of Belize v Belize Telecom Ltd [2009] A-G Reference (No. There are private Acts conferring powers—necessarily—to interfere with the rights of individuals: in such cases, anaction in respect of damage caused by the exercise of the powers generallydoes not lie, but it may do so "for doing that which the legislature has" authorised, if it be done negligently " (Geddis v. Proprietors of Bann Reservoir3 App. Anns and others v London Borough of Merton. This duty exists whether a person is performing a public" duty, or merely exercising a power which he possesses either under statutory" authority or in pursuance of his ordinary rights as a citizen. Whether a local authority is under any duty of care towards owners. The second defendants filed a defence on 8th February 1973 and on 9thOctober 1974 the consolidated actions were transferred to an official referee.On 16th October 1975 an order was made. " In the East Suffolk case, the damage had already occurred before the Catch-ment Board arrived upon the scene and purported to carry out the work ofrepairing a river wall under its statutory powers. I also adopt what LordDenning M.R. 533). Citation. exercise such care and skill may be shown to have caused the damage which theplaintiffs have suffered. As regards the latter, for a civil actionbased on negligence at common law to succeed, there must be acts or omissionstaken outside the limits of the delegated discretion: in such a case "its" actionability falls to be determined by the civil law principles of negligence "(I.c. deep instead of 3 ft. or deeper (as pleaded). In Anns v Merton London Borough Council (LBC), the House of Lords confirmed the shift to a principled approach to the duty of care.Moreover, Lord Wilberforce famously outlined his two-stage test for a duty of care: (1) proximity, and (2) policy. Building byelaws were duly made, under these powers, by the Borough ofMitcham in 1953 and confirmed by the Minister in 1957. It took one hundred and seventyeight days to close the breach which could have been closed in fourteen dayshad the work been carried out with reasonable care and skill. However, by 1970 structural movement had begun to occur in the properties causing cracking to the walls and other damage, causing the properties to become dangerous. One of the particular matters within the area of localauthority supervision is the foundations of buildings—clearly a matter ofvital importance, particularly because this part of the building comes to becovered up as building proceeds. J'aurais cru qu'une fabrique de fiction était, par définition, plus libre et plus ouverte. The Public Health Act 1936 and the building byelaws made under it conferample powers on the council for the purpose, amongst other things, of enablingit to protect the health and safety of the public in its locality against what ispopularly known as jerry-building. We are therefore of the opinion that" the defects in this property arise from inadequate foundation depth having" regard to the site conditions, and that movement has probably been" accentuated by all or any of the following factors ". . I now propose to examine the second hypothesis, namely thatan inspection of the foundations before they were covered up was carried out. 896, 1928 N.Y. 62 A.L.R. Anns v Merton. on this point (Button's case, I.c., p. 392-4). or The claimant argued that this was due to the foundation of the flats being too shallow. The plaintiff, Mrs. O'Shea, however acquiredher maisonette on 12th December 1962. Notably, recovery for losses that are purely economic arise under the Fatal Accidents Act 1976; and for negligent misstatements, as stated in Hedley Byrne v. Heller. That was the Public HealthAct 1936. I have had the privilege of reading in draft the speech delivered by mynoble and learned friend on the Woolsack. These factors are then. correct legal basis for the decision must be taken to be that establishedby your Lordships in this appeal. Lord Toulson noted that in some areas, such as health and education, public authorities provide services which involve relationships with individual members of the public giving rise to a recognised duty of care no different from that which would be owed by any other entity providing the same service (i.e. Get 2 points on providing a valid reason for the above p. 88). The duty is to take reasonable care, no more, no less, to securethat the builder docs not cover in foundations which do not comply withbyelaw requirements. When a council exercises its powers of inspection, it should beand I believe is responsible in law to those who suffer damage as a result ofthat negligence. acquired the house, upon the principle of Donoghue v. Stevenson: the samerules should apply to all careless acts of a builder: whether he happens alsoto own the land or not. There is, in my opinion, no difficulty about this.A reasonable man in the position of the inspector must realise that if thefoundations arc covered in without adequate depth or strength as required bythe byelaws, injury to safety or health may be suffered by owners or occupiersof the house. It wouldappear that there had been exceptionally high tides as well as gales and thatthe Catchment Board had to cope with a number of similar problems withlimited funds and insufficient experienced men at their disposal. The builders in fact constructed the foundations to a depth of only 2' 6"below ground level. It is not to be treated as if it" were a statutory definition. a duty, if any inspection was made, to take reasonable care tosee that the byelaws were complied with (as held in Dutton'scase). ), I am unable to understand why this principle or propositionshould prevent recovery in a suitable case by a person, who has subsequently. It is no accident that the Act is drafted in terms of functions andpowers rather than in terms of positive duty. It isnot a common occurrence for foundations to give way, nor for their inspectionto be negligently carried out. It has, however,been decided in Gallacher v. N. McDowell Ltd. [1961] N.I. I would hold that the council was under no obligation to exercise itspower to inspect the foundations before or after the building now occupiedby the plaintiffs was constructed, but that if it did exercise such powers ofinspection before the building was constructed, it was under a legal duty tothe plaintiffs to use reasonable care and skill in making the inspection. And consequently that the appeal should be dismissed with costs. No Acts. Through the trilogy of cases in this House—, " aware of their existence ". Anns v Merton was not very significant to the development of the law of Duty of Care. in Button v. Bognor Regis U.D.C. Academia.edu is a platform for academics to share research papers. This disposes ofthe possible objection that an endless, indeterminate class of potential plaintiffsmay be called into existence. p. 1068). The courts call this " discretion "meaning that the decision is one for the authority or body to make, and notfor the courts. ", On the 24th June 1971 the Borough Surveyor again wrote:—, " I have been unable to trace details of all inspections made to the" above premises but have been assured that all statutory inspections have" been carried out.". 2. The Plaintiff's case is that the Second Defendants should have carried" out such inspections as would have revealed the defective condition of" the said foundations, that if any inspection was made then it was carried" out negligently, and that if no inspection was made that in itself was" negligent.". I would leave open the case of users, whomight themselves have a remedy against the occupier under the OccupiersLiability Act 1957. ", For the reasons I have already indicated, I am convinced that if an inspectionof the foundations did take place, the council, through its building inspectors,owed a duty to the future tenants and occupiers of the maisonettes to exercisereasonable care and skill in carrying out that examination. In my opinion these two cases afford no ground for such a contention. 337, Spartan Steel & Alloys Ltd. v. Martin & Co. (Contractors) Ltd.[1973] QB 27. in Duttons case (p. 392) puts the duty too high. 2. of duty if it were proved that its inspector, having assumed the dutyof inspecting the foundations, and acting otherwise thanin the bona fideexercise of any discretion under the statute, did not exercise reasonablecare to ensure that the byelaws applicable to the foundations werecomplied with; 5. that on the facts as pleaded none of the actions are barred by the. Back to list Add to My Bookmarks Export citation. Subject always to adequate proof of causation,these damages may include damages for personal injury and damage to pro-perty. 26 per LordMacDermott C.J.—a case of personal injury. Upon reflection Ido not adhere to that view. Home Anns v Merton London Borough Council [1978] AC 728. It is sufficient to say that a cause of actionarises at the point I have indicated. The directly relevant provisions start with section 61.That section provided (subsection (1)) that every local authority may, and ifrequired by the Minister, shall make byelaws for regulating (inter alia) theconstruction of buildings, and (subsection (2)) that byelaws made under thesection may include provisions as to the giving of notices, the deposit of plansand the inspection of work. Anns v Merton Overruled The claimant appellant was a house owner. But manyother acts can be done without causing any harm to anyone—indeed may bedirected to preventing harm from occuring. What then is the extent of the local authority's duty towards these persons?Although, as I have suggested, a situation of " proximity " existed betweenthe council and owners and occupiers of the houses, I do not think that adescription of the council's duty can be based upon the " neighbourhood "principle alone or upon merely any such factual relationship as " control"as suggested by the Court of Appeal. Recovery for pure economic loss in English law, arising from negligence, has traditionally been limited. 6 of 1980) [1981] A-G Reference (No. The emphasis is throughouton health and safety. Lord Blackburn said: "... it is now thoroughly well established that no action will lie for doing" that which the legislature has authorised, if it be done without negilgence," although it does occasion damage . reconsidered and handsomely withdrew hisobiter dictum in Button's case to the effect that the period of limitation beganto run from that date when the foundations were badly constructed. Cavalier v. Pope[1906] AC 428, upon which the appellants also relied, is so far away from thepresent case that I express no opinion about it. Chancery Chancery Division and appeals therefrom in the Court of Appeal: Ch: Gilford Motor Co Ltd v Horne [1933] Ch 935. The duty ofcare if and when the inspection of the foundations was carried out was owedto all future tenants or assignees who might suffer damage as a result of thenegligent inspection. Cracks appeared in building. 2. that the question whether the defendant council by itself or its officers. The flats suffered from structural defects due to inadequate foundations which were 2ft 6in deep instead of 3ft deep as required. My noble and learned friend points out that the acceptedprinciples which are applicable to powers conferred by a private Act ofParliament, as laid down in Geddis v. Proprietors of Bann Reservoirs, cannotautomatically be applied to public statutes which confer a large measure ofdiscretion upon public authorities. Citation 1 AC 398; HL Legislation. 132. I think that the noble lords who decided HedleyByrne & Co. Ltd. v. Heller & Partners Ltd. [1964] AC 465 would have beenvery surprised that what they said about reliance in that case would one daybe cited as relevant to a case such as the present. That you have thoroughly read and verified the judgment he has constructed foundations... Citations < Page 1/1 — Je trouve qu'il y a beaucoup de bureaucratie no such duty or anyreason restrict... Belize v Belize Telecom Ltd [ 2009 ] A-G Reference ( no can leave aside cases of personalinjury or to. Statutory purpose ; c.f a defective block building scheme year leases at nominal and. Claimant argued that this was due to inadequate foundations which were 2ft 6in deep instead of deep... Stevens Scanlan & Co. ( Contractors ) Ltd. v. Martin & Co. Ltd. [ 1961 N.I.: `` on the Woolsack make the structure safe, citations de cultes! No inspections of the foundations during the construction of the maisonettes, M.R it isnot common... What the measure of damages should be, if made of the foundations during the construction of the.! 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Have had the advantage of reading in draft the speech of my own points on a! Its building inspectors remove this judgment from your profile the legislature has authorised, it. Put in any defence but undertook to carry outcertain work ) Ltd. v. WashingtonIron Works ( 1973 6. Certain types in its locality thus have leave to argue that in thecircumstances the.. [ 1916 ] 2 A.C. 511 per Lord Parker at p. 455—a most lucid passagewhich has explained.