D. & F. Estates Ltd. et al. v. Church Commissioners For England et al., (1988) 94 N.R. 286 (HL)

• Case Date: July 14, 1988
• Jurisdiction: Canada (Federal)
• Citations: (1988), 94 N.R. 286 (HL)

D. & F. Est. v. Ch. Commrs. For Eng. (1988), 94 N.R. 286 (HL)

MLB headnote and full text

D. & F. Estates Ltd. et al. (appellants) v. Church Commissioners For England et al. (respondents)

Indexed As: D. & F. Estates Ltd. et al. v. Church Commissioners For England et al.

House of Lords

London, England

Lord Bridge of Harwich, Lord Templeman, Lord Ackner, Lord Oliver of Aylmerton and Lord Jauncey of Tullichettle

July 14, 1988.

Summary:

A general contractor for the construction of a block of flats hired a competent subcontractor to do the plastering. The subcontractor negligently failed to follow the plaster manufacturer's application instructions. A tenant discovered the defective plaster 15 years later before any damage or injury occurred and the plaster had to be replaced. One of the issues was the liability of the general contractor for the negligence of its subcontractor and for the cost of replacement of the plaster. The trial judge held that the subcontractor was negligent and that the general contractor breached its duty of supervision over the plasterers, where it ought to have known of the plaster manufacturer's instructions.

On appeal the Court of Appeal held that the general contractor did not breach its duty, because it hired competent plasterers. On the issue of recoverability for economic loss the Court of Appeal held that, if otherwise liable, the general contractor would be liable for the initial repairs upon discovery of the defects, but not for subsequent plaster replacement.

On further appeal the House of Lords dismissed the appeal and held not only that the general contractor was not vicariously liable for the negligence of its subcontractor in the absence of proof that the general contractor was aware of the subcontractor's negligence and condoned it, but also that damages for the cost of replacement of the plaster were not recoverable in the absence of a contractual relationship between the tenant and the general contractor.

Damages - Topic 531

Limits of compensatory damages - Remoteness - Tort - Recoverable damages - Purely economic loss - A general contractor for the construction of a block of flats hired a competent subcontractor to do the plastering - The subcontractor negligently failed to follow the plaster manufacturer's application instructions - A tenant discovered the defective plaster 15 years later before any damage or injury occurred and the plaster had to be replaced - The House of Lords held that the general contractor was not liable to the tenant for the cost of replacing the plaster, which in the absence of damage or injury, was purely economic loss - The House of Lords stated that to rule otherwise would impose on the general contractor a noncontractual warranty of fitness, which would follow its work into whosoever hands it came and would unjustifiably extend the principles of tortious liability.

Torts - Topic 77

Negligence - Duty of care - Relationship required to raise duty of care - [See Damages - Topic 531 above].

Torts - Topic 2554

Vicarious liability - For independent contractors - Building contractors - A general contractor for the construction of a block of flats hired a subcontractor to do the plastering - The subcontractor negligently failed to follow the plaster manufacturer's application instructions and the plaster had to be replaced years later - The House of Lords held that the general contractor was not liable to tenants of the building for the negligence of its subcontractor in the absence of proof that the general contractor was aware of the subcontractor's negligence and condoned it - See paragraphs 28 to 33.

Cases Noticed:

Dutton v. Bognor Regis Urban District Council, [1971] 2 All E.R. 1003; [1972] 1 Q.B. 373, not folld. [para. 11].

Donoghue v. Stevenson, [1932] A.C. 562, consd. [para. 11].

Bowen v. Paramount Builders (Hamilton) Ltd., [1977] 1 N.Z.L.R. 394, consd. [paras. 13, 21, 25, 43].

Anns v. Merton London Borough Council, [1978] A.C. 728, consd. [paras. 15, 37].

Batty v. Metropolitan Property Realisations Ltd., [1978] Q.B. 554, consd. [paras. 17, 44].

Junior Books Ltd. v. Veitchi Co. Ltd., [1983] A.C. 520, consd. [para. 19].

East River Steamship Corporation v. Transamerica Delaval Inc. (1986), 106 S.Ct. 2295, consd. [paras. 21, 43].

Rivtow Marine Ltd. v. Washington Iron Works, [1974] S.C.R. 1189; [1973] 6 W.W.R. 692; 40 D.L.R.(3d) 530, consd. [paras. 21, 38, 44].

Cynat Products Ltd. v. Landbuild (Investment and Property) Ltd., [1984] 3 All E.R. 513, dist. [para. 30].

Mount Albert Borough Council v. Johnson, [1979] 2 N.Z.L.R. 234, not folld. [para. 31].

Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd., [1964] A.C. 465, refd to. [para. 42].

Statutes Noticed:

Defective Premises Act, 1972 (U.K.), sect. 1, sect. 2 [para. 10].

Authors and Works Noticed:

Clerk and Lindsell on Torts (15th Ed. 1982), paras. 3-37, p. 185 [para. 29].

Law Commission (U.K.), Civil Liability of Vendors and Lessors for Defective Premises (1970), Report 40 [para. 9].

Counsel:

Richard Fernyhough, Q.C., and Robert Glancy, for the appellants;

Donald Keating, Q.C., and Richard Seymour, for the respondents.

This case was heard on April 25-28, 1988 at London, England, before Lord Bridge of Harwich, Lord Templeman, Lord Ackner, Lord Oliver of Aylmerton and Lord Jauncey of Tullichettle, of the House of Lords.

On July 14, 1988, the judgment of the House of Lords was delivered and the following speeches were given:

Lord Bridge of Harwich - see paragraphs 1 to 33;

Lord Templeman - see paragraph 34;

Lord Ackner - see paragraph 35;

Lord Oliver of Aylmerton - see paragraphs 36 to 47;

Lord Jauncey of Tullichettle - see paragraph 48.