Last edited 02 Sep 2021

D&F Estates Limited and Others v Church Commissioners for England and others

This case concerned defective plastering carried out by sub-contractors to a main contractor. The non-occupying leaseholder, which was a company, claimed against the main contractor (with whom they did not at any time have a contract) in respect of costs of repair to plastering actually carried out, future repair costs and loss of rent. Lord Bridge delivered the main speech, the remainder of their Lordships agreeing with no substantial dissent.

The non-occupying leaseholder plaintiff had no option but to bring the case in tort against the main contractors for the simple reason that they had no contract with them. It was a difficult case to frame in the law of tort, if for no other reason, because a contractor has no liability in law for the torts of their independent contractor, namely, the sub-contract plasterers. The plaintiffs therefore put their duty as a duty on the part of the main contractor to adequately supervise the work of the plastering sub-contractors. The judge at first instance found for the plaintiffs but the House of Lords overturned that decision and their reasons are of fundamental importance in the area of negligence liability in the construction industry.

Consider these two passages from the speech of Lord Brandon:

'It is, however, of fundamental importance to observe that the duty of care laid down in Donoghue v. Stevenson was based on the existence of a danger of physical injury to persons or their property. That this is so, is clear from the observations made by Lord Atkin at pages 581 to 582 with regard to the statements of law of Brett MR in Heaven v. Pender (1883). It has, further, until the present case, never been doubted so far as I know that the relevant property for the purpose of the wider principle on which the decision in Donoghue v. Stevenson was based was property other than the very property which gave rise to the danger of physical damage concerned.'

'... there are two important considerations which ought to limit the scope of the duty of care which it is common ground was owed by the appellants to the respondents on the assumed facts of the present case. The first consideration is that, in Donoghue v. Stevenson itself and in all the numerous cases in which the principle of that decision has been applied to different but analogous factual situations, it has always been either stated expressly, or taken for granted, that an essential ingredient in the cause of action relied on was the existence of danger or the threat of danger or physical damage to persons or their property, excluding for this purpose the very piece of property from the defective condition of which such danger, or threat of danger arises. To dispense with that essential ingredient in a cause of action of the kind concerned in the present case would, in my view, involve a radical departure from long established authority.’

The essence of what was being said was that the developments in the law of tort between 1932 and 1988 were tantamount to giving Donoghue, in Donoghue v. Stevenson, not only damages for her personal injury in being made ill by the decomposed snail in the ginger beer bottle, but also requiring the manufacturer to pay for or provide a new bottle of ginger beer, the thing itself. On this basis, it was easy for the House of Lords in D.& F. to come to the view that the plaster, being the damaged thing itself, had not caused damage to persons or property (other than the de minimis cleaning of carpets involving an expenditure of about £50) and that the non-occupying lease-holder was not entitled to succeed against the contractor. However, in coming to that decision, the House of Lords had some difficulty in reconciling the Anns decision, although they did not overrule it. It follows from the D. & F. decision that, for example, tenants, purchasers and funds could not rely in future on the possibility of being able to obtain recompense in tort in respect of defects in design or construction of buildings; hence the immediate and urgent boost in the use of collateral warranties since that decision. The collateral warranty tries to fill the gap in the law of tort by creating a contractual relationship.

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