Dear Colleagues;

On another tack, the decision is an interesting illustration of how the common law can diverge in different jurisdictions. The High Court of Australia decision in Bryan v Maloney [1995] HCA 17; (1995) 182 CLR 609 held that a concurrent duty in contract and tort arises and that a subsequent purchaser of domestic premises is owed a duty of care by the original builder. Bryan is still pretty clearly authoritative for domestic housing, but the more recent decision in Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; 216 CLR 515 held that it did not apply to "commercial" premises.

It is interesting to speculate on the result of this decision (Robinson) in Australia if the house had been sold to a subsequent purchaser and turned out to have this major defect. Off the top of my head it seems arguable that the authority of Bryan v Maloney would enable the later purchaser to recover the cost of repairs from the original builder. This would seem to be so even if the original purchaser had entered into a contract which (like the one here) excluded recovery by that purchaser for this sort of defect.

Having said that, it must be acknowledged that the court in Woolcock Street only "just" refrained from over-ruling Bryan altogether, and one of the grounds that were put forward by the majority for distinguishing the decision were that in the later case there was no duty owed by the builder to the original purchaser- see paras [14], [25]-[27]. So the hypothetical here might well be decided against the subsequent purchaser on this basis.

Regards

Neil

On 19/01/2011, at 1:19 AM, Prof Andrew Tettenborn wrote:

I see Robert's point about the gratuitous building work, but I'm not so sure about the unwisdom of denying a duty. If you give me a car which it then turns out is dangerous to drive and will cost me zillions to make safe, I see no reason whatever why I have any legitimate ground of complaint. On the contrary: you shouldn't look a gift horse in the mouth, and the law shouldn't encourage people to do so. And if that's right, I don't see it should make any difference that your gift was a built house and not a car. My rights should be limited to suing for personal injury if the house collapses around my ears, and possibly for my squished BMW in the integral garage (and whether I deserve the latter is rather doubtful).

OK: that leaves professional services. But I think they're different. Essentially they're concerned with advice, and there's already an exception to tort liability for informal advice given as a favour. If the defendant can't invoke that exemption, then he's done the next best thing to assuming responsibility, assuring me I can rely on the advice as professionally given, and hence liable accordingly.


Andrew

On 18/01/11 13:46, Robert Stevens wrote:

As, on the facts, there was only one source of any assumption of responsibility, the contract between the parties, it is obviously right that there can only be one answer as to its scope. There was not a contractual assumption of responsibility and a separate tortious one which was somehow different. If no claim was possible under the terms of the agreement, that is the end of the matter (subject to UCTA).

 

That said, the attempt to confine Henderson v Merrett to cases of 'professional relationships' [83], seems to me to be most unwise. If the building work had been carried out gratuitously so that no contract action strictu sensu could be brought, then there should be a claim based upon Hedley Byrne for any consequential economic loss suffered as a result of the work not being carried out carefully. It would be ridiculous if the limitation period applicable to the claimant without a contract was more generous than that applicable to the party with a contract. The House of Lords in Henderson avoided this by allowing a contracting party to assert a claim in the alternative as a breach of the Hedley Byrne-type duty. It would be very odd if the rule were different in building cases and professional services cases.

 

Burnton LJ's statement that

 

"The duty of care in contract extends to any defect in the building, goods or service supplied under the contract, as well as to loss or damage caused by such a defect to another building or goods. The duty of care in tort, although said to arise from an assumption of liability, is imposed by the law. In cases of purely financial loss, assumption of liability is used both as a means of imposing liability in tort and as a restriction on the persons to whom the duty is owed."

 

Is doubly unfortunate first it seems to imply that outside of the contractual context the notion of an assumption of responsibility is just a fiction (which it is not), and second because I have no idea how an assumption of responsibility can operate as a restriction on the persons to whom the duty is owed. It can only ever be a basis for finding a duty, not a reason for excluding it. 

 

RS

---

From: Prof Andrew Tettenborn [mailto:a.m.tettenborn@swansea.ac.uk]
Sent: 18 January 2011 13:18
To: Morgan P.
Cc: ODG
Subject: Re: Concurrent Liability

A sound decision, as it seems to me (the suggestion of the claimant being, in effect, that the existence of a contract between him and the defendant builder almost automatically went to create a duty in tort as well -- which can't be right). I also liked Jackson LJ's throwaway line in his judgment referring to the 1970s and 1980s as having been a "heroic age" of the law of torts.

Andrew




On 18/01/11 12:57, Morgan P. wrote:

Dear List Members,

The Court of Appeal of England and Wales has today handed down a decision that analyses concurrent liability in contract and tort, in the context of a defective building: James Andrew Robinson v. P E Jones (Contractors) Ltd, http://www.bailii.org/ew/cases/EWCA/Civ/2011/9.html.

The case looks at the role of assumption of responsibility, economic loss, and discusses the different origins and functions of tortious and contractual duties.  It also comments on the Unfair Contracts Terms Act 1977, upholding in the context of economic loss, a term of term of a contract with a consumer which limits liability to contractual liability only (based on the National House-Building Council’s standard form of Agreement), and excludes a claim in tort.

Kind regards,

__________________________

Phillip Morgan
Lecturer in Contract and Tort Law
Senior Tutor (Year 2)
School of Law
University of Southampton
Highfield
Southampton SO17 1BJ
Phillip.Morgan@soton.ac.uk

http://www.law.soton.ac.uk/
http://www.soton.ac.uk/law/staff/academicstaff/morgan_phillip.html

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Andrew Tettenborn Professor of Commercial Law, Swansea University School of Law, University of Swansea Richard Price Building Singleton Park SWANSEA SA2 8PP Phone 01792-602724 / (int) +44-1792-602724 Fax 01792-295855 / (int) +44-1792-295855

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Lawyer (n): One versed in circumvention of the law (Ambrose Bierce)

 

 

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--

Andrew Tettenborn Professor of Commercial Law, Swansea University School of Law, University of Swansea Richard Price Building Singleton Park SWANSEA SA2 8PP Phone 01792-602724 / (int) +44-1792-602724 Fax 01792-295855 / (int) +44-1792-295855

Andrew Tettenborn Athro yn y Gyfraith Fasnachol, Prifysgol Abertawe Ysgol y Gyfraith, Prifysgol Abertawe Adeilad Richard Price Parc Singleton ABERTAWE SA2 8PP Ffôn 01792-602724 / (rhyngwladol) +44-1792-602724 Ffacs 01792-295855 / (rhyngwladol) +44-1792-295855

 

Lawyer (n): One versed in circumvention of the law (Ambrose Bierce)

 

 

Sent from a Microsoft-free zone -- keeping computing free

 Neil Foster

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