Court Court of Appeal | ||
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Citation(s) [1972] 1 QB 373, [1972] 2 WLR 299, [1972] 1 All ER 462, [1972] 1 Lloyd's Rep 227 Judge(s) sitting Lord Denning MRSachs LJStamp LJ Similar Dorset Yacht Co Ltd v Ho, Jackson v Horizon Holidays, Smith and Snipes Hall Farm Ltd, Hedley Byrne & Co Ltd v Hell, Spartan Steel & Alloys Ltd | ||
Dutton v Bognor Regis Urban District Council [1972] 1 QB 373 is an English contract law and English tort law case concerning defective premises and the limits of contract damages. It was disapproved by the House of Lords in Murphy v Brentwood DC and is now bad law except in Canada and New Zealand.
Contents
Facts
Mrs Dutton sought to recover damages from a builder, Bognor Regis Building Co Ltd, and the local council, Bognor Regis Urban District Council, that certified her house was sound, when it emerged that her house's foundations were defective because it had been built on a rubbish tip. This would have been discoverable if proper checks were made. Mrs Dutton had bought the building from a Mr Clark, who in turn had bought the building from the builder, so that Mrs Dutton had no direct contract with either the builder or the council. She settled the claim with the builder for £625 after getting advice that an action in negligence could not succeed, but continued in an action against the council, and Cusack J awarded damages £2,115. The council appealed.
Judgment
The Court of Appeal held that Mrs Dutton could recover money from the council, as an extension of the principle in Donoghue v Stevenson. It was fair and reasonable that the council should be liable to a later purchaser of a house that its surveyor had negligently certified to be sound.
Lord Denning MR's judgment went as follows.
Critique
Denning essentially argues (not unlike noblesse oblige) that if an inspector has a statutory right to inspect the property under construction, he thereby acquires a duty of care to inspect carefully. That is to say: a person who has a right has duties attached to that right. But jurists Dias and Hohfeld have shown that rights and duties are jural correlatives. That is to say: if someone has a right, someone else owes a duty to them. So here, the inspector has a right (to inspect), and the builder has a duty to let them inspect. The later Murphy v Brentwood DC case revealed Denning's reasoning in Dutton to be flawed . The statement here that "the inspector has a right (to inspect), and the builder has a duty to let them inspect" does not correctly reflect the right/duty correlative as propounded by Dias. The inspector has right to inspect and is duty bound to apply his professional expertise in carrying out the inspection. It is this 'expertise' of his that a third party would be relying on albeit not directly, but it is reasonable for a person purchasing a house to believe that 'if the District Council has certified a building as safe then it must be safe'. Thus, the inspector as a professional man has the right to inspect and the duty to carry out that inspection with diligence and report to the 'community' any defect he finds in the building or his inability to inspect at all or in full whether owing to obstruction by the builder or to any other reason, and not to certify the building as safe when he knew or ought to know that it was not.