Anns v Merton London Borough Council

Facts

In 1962 the local council of Merton approved building plans for the
erection of a block of maisonettes. The approved plans showed the
base wall and concrete foundations of the block to be ‘three feet or
deeper to the approval of local authority [being Merton]’. The notice of
approval said that the bylaws of the council required that notice should
be given to the council both at the commencement of the work and
when the foundations were ready to be covered by the rest of the
building work. The council had the power to inspect the foundations
and require any corrections necessary to bring the work into
conformity with the bylaws, but was not under an obligation to do so.

The block of maisonettes was finished in 1962. The builder (who was
also the owner) granted 999 year leases for the maisonettes, the last
conveyance taking place in 1965. In 1970 structural movements
occurred resulting in failure of the building comprising cracks in the
wall, sloping of the floors and other defects. In 1972 the plaintiffs who
were lessees of the maisonettes issued writs against the builder and
the council.

The plaintiffs claimed that the damage was a consequence of the block
having been built on inadequate foundations, there being a depth of
two feet six inches only as against the three feet or deeper shown on
the plans and required under the bylaws. The plaintiffs claimed
damages in negligence against the council for approving the
foundations and/or in failing to inspect the foundations.

At the hearing at first instance the plaintiffs' case failed on the basis
that it was statute barred as the cause of action arose on the first sale
of a maisonette by the owner, more than six years before an action
was commenced. The Court of Appeal allowed the appeals on the basis
that the cause of action arose when the damage was discovered or
ought to have been discovered.

The Court found in favour of the tenants.

Reasoning

The Appeal was raised on two points:

Whether the local council were under any duty of care toward owners
or occupiers of houses as regards inspection during the building
process; and

What period of limitation applied to claims by such owners or occupiers

against the local council

The House of Lords unanimously decided that a duty of care did exist
and that such a duty was not barred by a "limitation of actions"
statute.

The leading judgment is delivered by Lord Wilberforce with whom all

fellow Judges concurred. Lord Salmon delivered a speech within which
he agreed in substance with Lord Wilberforce but contained a separate
analysis of, in particular, the issue of duty of care.

Lord Wilberforce accepts what might be seen as the high point of the
adoption of the statements of Lord Atkin in Donoghue v Stevenson, the
"neighbour principle". He says: -

‘Through the trilogy of cases in this House, Donoghue v Stevenson,

Hedley Byrne & Co Ltd v Heller & Partners Ltd and Home Office v
Dorset Yacht Co Ltd, the position has now been reached that in order
to establish that a duty of care arises in a particular situation, it is not
necessary to bring the facts of that situation within those of previous
situations in which a duty of care has been held to exist. Rather the
question has to be approached in two stages. First one has to ask
whether, as between the alleged wrongdoer and the person who has
suffered damage there is a sufficient relationship of proximity or
neighbourhood such that, in the reasonable contemplation of the
former, carelessness on his part may be likely to cause damage to the
latter, in which case a prima facie duty of care arises. Secondly, if the
first question is answered affirmatively, it is necessary to consider
whether there are any considerations which ought to negative, or to
reduce or limit the scope of the duty or the class of person to whom it
is owed or the damages to which a breach of it may give rise’.

Hedley Byrne v Heller was held as an example of a case in which there

was a reduction in the scope of the duty of care.

The 'Anns Test' established here by Lord Wilberforce is a two stage

test.
It requires first a ‘sufficient relationship of proximity based upon
foreseeability’;

and secondly considerations of reasons why there should not be a duty

of care.