England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
LIVERPOOL DISTRICT REGISTRY
(HIS HONOUR JUDGE NANCE, SITTING AS A HIGH COURT JUDGE)

		Royal Courts of Justice
		Tuesday 6th December 1983

LORD JUSTICE STEPHENSON: This appeal arises out of an accident which was thus described by Judge Nance in giving judgment for the plaintiff on 6th May 1982:

"At about 9.30 in the evening of the 28th December, 1975 the plaintiff was making his way from the lounge to the kitchen. He was carrying a cup and saucer. The floor was somewhat encumbered by toys and the little boy, who was still playing possibly with a moving toy. The plaintiff at a point near to the lounge door stumbled or tripped because of, or because of his endeavours to avoid, some obstruction on the floor. He fell forward".

He put out his left hand (the judge continued) to try to save or help himself and with quite considerable force put his hand through a glass panel in front of him, thereby sustaining quite substantial injuries to his left hand and wrist. For that injury he claimed from the defendant council and received from the judge damages which were agreed at £2,500 with interest.

The place where the accident occurred was a flat which the plaintiff had taken from the council on a weekly tenancy in May 1974. The flat was one of a block of 24 in Boundary Street East, Liverpool, built by the council, through their Direct Works Department, in 1959 to the same design in all material respects. The design and construction included the glass panel which cut the plaintiff's hand. That was a panel of glass which was translucent, not transparent, forming part of an internal wall directly opposite the lounge or living room door at a height of 2ft. above the floor of a corridor or passage 2ft. l0ins. wide. So the glass across the passage was no more than 2ft. l0ins. from the living room door. It was there to give light to the passage. It was 4ft. 3ins. high and 2ft. wide; and it was only one-eighth of an inch or 3 millimetres thick.

The original project architect in the council's Architects' Department at one stage specified Georgian wired glass for this feature; that is wired glass ¼ inch (6 millimetres) thick. But in 195 9 at some stage the architect in charge altered the requirement to pattern glass one-eighth inch (3 millimetres) thick, and at the time of the trial those flats which were available for inspection had these original thin glass panels.

The plaintiff gave evidence, which the judge accepted, that at the start of his tenancy he complained to a technical officer with the council's housing department of the danger to his five-year-old son of the glass because of its thinness, but was told it was standard and nothing could be done about it. That officer gave evidence neither recalling nor disputing the plaintiff's evidence, but stating that he had never heard of any complaint by any other tenant of these 24 flats about this glass feature or of any other such accident as the plaintiff's.

The judge considered first the danger and then the duty and we shall do the same. He "said:

"I now consider whether the installation of thinner glass brought about a dangerous or more dangerous condition with a reasonably foreseeable risk of injury or greater injury and whether, if so, the defendants ought to be adjudged to be at fault for creating or at the time of the letting to the plaintiff, allowing to continue that danger or greater danger and accepting such risk or greater risk. If appropriate I shall then have to consider the problem as to whether there was a duty owed to the plaintiff in this regard.

"To me it is an elementary proposition of common sense that easily breakable glass presents a risk of some, possibly serious, injury if a breaking hand penetrates the glass. I do not need an expert to tell me that and it is no surprise that all the experts are agreed that there is an inherent risk of injury if glass is so broken.

"That does not mean that it is always wrong to use such glass for a window or screen in any building work. One must balance many factors".

He then went on to consider the position of the glass, cost, the professional advice available in 1959, the British Standards Institution's Codes of Practice, and the evidence of the plaintiff's experts.

He concluded that the 1959 architect had no code of practice to guide him on the safety of glass but nonetheless:

".....in 1959 there was a foreseeable risk: that someone might stumble and put his hand against this glass and break it. I reach this conclusion with the assistance of the expert evidence but also because it seems to me that the narrow corridor, the juxtaposition of lounge door and glass, the lowness of the glass, the lack of any protective sill or any other protective device made the risk obvious, and one which could so easily have been reduced by adopting the idea of the original design architect for ¼ inch (6 millimetres) Georgian wired glass. I so consider that whoever changed the design, a servant of the defendants, was at fault".

He went on to look at the 1974 position when the council let the flat to the plaintiff and concluded that an intelligent reading of the 1966 and 1972 Codes of Practice would have called to the minds of the architects' department the risk of danger to anyone stumbling against this glass "unprotected as it was and low as it was, and thin as it was"; the department were not relieved from reconsidering the position in the light of after gained information; the council were at fault in letting to the plaintiff "a flat which they ought to have known contained this foreseeably dangerous and easily substituted glass".

These findings were challenged in the notice of appeal and more faintly in Mr. Rose's argument for the council. But they seen to us soundly based on the facts and the evidence by a judge who carefully balanced all the relevant factors, and they are therefore beyond challenge in this court. If there was a duty of care it was broken. The real issue raised by this appeal is not negligence but duty. Was there a duty of care?

On this question of the council's duty to the plaintiff we have heard interesting and attractive arguments on both sides, and have been taken to a number of well-known authorities, as was the judge. The duty for which the plaintiff argued and which the judge imposed was a duty at common law. It was not alleged that there was any contractual liability. A statutory liability had been pleaded under ss.l and 3 of the Defective Premises Act 1972, which came into force on 1st January 1974 (s.7(2)). But any claim under s.l was barred by s.l(5), by which any cause of action the plaintiff had under the section was deemed to have accrued in 1959; s.3 does not create a duty but preserves any existing duty of care in relation to work which "is done" - which does not naturally mean "has been done" before the Act came into force, like the construction of this glass panel - from abatement by subsequent disposal of the premises such as a letting (s.6(D). S.4, which the judge treated as having been alleged, though it was not pleaded, was abandoned before trial because the duty it imposes on a landlord is only a duty to take reasonable care to see that the premises let are reasonably safe from personal injury (or from damage to property) caused by a failure to carry out an obligation to maintain or repair the premises (s.4(3)) and there was no such failure here. There was apparently no such obligation, and certainly no want of repair.

We shall have to refer to that Act of 1972 again, but the judge was right to consider that the only duty which could be owed to the plaintiff by the council was a duty of care at common law. He was able to hold that there was such a duty, which he formulated in this conclusion:

"I have reached the conclusion that the law today is that a landlord must apply his mind before letting to a tenant to the question of whether the premises may be considered to be reasonably safe. He must have in contemplation the reasonable use of the premises by the proposed tenant, his family and his visitors. In contract he may make exclusion clauses. That does not apply here.

"In my judgment, therefore, there was and is. a legal duty on a landlord to take reasonable steps to ensure that the premises are reasonably safe. For the reasons I have set out I hold that this landlord, the defendants, failed in their duty in 1959 or at the latest, 1974. Therefore there is liability to the plaintiff".

Mr. Moreland for the plaintiff seeks to support that formulation. We have come to the conclusion that it was not open to the judge, and is not open to any court below the highest, to say that that is the law, however desirable that it should be, but that Mr. Moreland is right in his alternative and less ambitious submission that there was a legal duty on these landlords to take reasonable care to see that this flat was reasonably safe for the plaintiff because they were both the designers and the builders of this flat, and they failed in their duty by designing and constructing a dangerous feature in this glass panel.

In 1906 the House of Lords held that the wife of a tenant, to whom a landlord had let a dilapidated house unfurnished, had no right of action against the landlord for injuries caused by her falling through the dangerous floor; she knew of the danger and she was not a party to the agreement to repair the floor which the landlord's agent had made with her husband: Cavalier v. Pope, (1906) Appeal Cases 428. Two years later the wife and family of a tenant who all contracted typhoid fever from insanitary drains in a house in Scotland were equally unsuccessful; the tenant had a claim on a contractual obligation to repair implied by the law of Scotland, and it was settled; but the House applied the principle common to the laws of Scotland and of England which Cavalier v. Pope had applied to defeat the claim of his wife and family: Cameron v. Young, (1908) Appeal Cases 176.

The question raised by this appeal is whether the authority of Cavalier v. Pope binds this court to hold the council immune from liability to the plaintiff, or whether it does not, either because it is inconsistent with later decisions of the House of Lords, which was (we think) the judge's view, or because it can be distinguished from this case, which is our own view.

Cavalier v. Pope is not without its followers, and not without its critics. It has been applied by this court in Bottomley v. Bannister, (1932) 1 King's Bench 458, and again in Davis v. Foots, (1940) 1 King's Bench 116. In Bottomley's case the court granted immunity to builders who had sold to a purchaser a house newly built with a gas boiler which was dangerous unless the flow of gas was properly regulated. It was not properly regulated and the purchaser and his wife, occupying the house as tenants at will, were fatally poisoned by the gas. In Davis' case the tenant of a flat, let by the couple who had previously lived there, sued them for the death of her husband from gas poisoning from a pipe left open by the landlords' son when he moved a gas fire; the court upheld the landlords' appeal and took away the damages which the judge had awarded the widow.

Between these two decisions the House of Lords had decided Donoqhue v. Stevenson, (1932) Appeal Cases 562, which Lord Justice du Parcq held could not be applied to Mrs. Davis' case because she had a reasonable opportunity for examining a plainly apparent defect as soon as the gas was turned on. The long line of cases in which Donoghue v. Stevenson has been considered and applied ends, as far as this appeal is concerned, with Anns v. Merton London Borough, (1978) Appeal Cases 728, in which both Cavalier v. Pope and Bottomley v. Bannister were also considered.

The immunity which protected Pope from Mrs. Cavalier's claim rested on the long established principle stated by Chief Justice Erle in a judgment (written according to Lord Justice Scrutton by Mr. Justice Willes) in Robbins v. Jones, (1863) 15 C.B. (New Series) 221, at p.240:

"A landlord who lets a house in a dangerous state is not liable to the tenant's customers or guests for accidents happening during the term: for, fraud apart, there is no law against letting a tumble-down house; and the tenant's remedy is upon his contract, if any".

Common sense refused to extend the immunity to those who let furnished houses in a defective condition: Smith v. Marrable, (1843) 11 Meeson & Wellsby, 6; Wilson v. Finch Hatton (1877) Law Reports, 2 Exchequer Division, 336. But the court of appeal felt bound to maintain it in favour of a landlord or vendor "even if he has constructed the defects himself or is aware of their existence": Bottomley v. Bannister, per Lord Justice Scrutton, (1932) 1 King's Bench at 468.

In Donoqhue v. Stevenson Lord Buckmaster buttressed his dissent from the decision of the majority of their Lordships in favour of making the manufacturer of a defective article liable to any persons so closely and directly affected by his acts or omissions that he might reasonably have them in contemplation as being so affected by asking ((1932) Appeal Cases at p.577):

"If such a duty exists, it seems to me it must cover the construction of every article, and I cannot see any reason why it should not apply to the construction of a house. If one step, why not fifty? Yet if a house be, as it sometimes is, negligently built, and in consequence of that negligence the ceiling falls and injures the occupier or any one else, no action against the builder exists according to the English law, although I believe such a right did exist according to the laws of Babylon".

Yet Lord Atkin referred to Cavalier v. Pope and Bottomley v. Bannister without disapproval (ibid. 597, 598); and Lord Macmillan distinguished Cavalier v. Pope and Cameron v. Young (in which he had been engaged as counsel) by putting them "in a different chapter of the law" (ibid. 609).

In Greene v. Chelsea Borough Council, (1954) 2 Queen's Bench 127 the court of appeal refused to extend the Cavalier v. Pope immunity to a requisitioning case where the council's licensee had been injured by a defective ceiling. Lord Justice Denning there said (at p.138):

"During the nineteenth century there was a doctrine current in the law which I will call the 'privity-of-contract' doctrine. In those days it was thought that if the defendant became connected with the matter because of a contract he had made, then his obligations were to be measured by the contract and nothing else. He owed, it was said, no duty of care to anyone who was not a party to the contract. This doctrine received its quietus by the decision of the House of Lords in Donoqhue v. Stevenson, but it has been asserted again before us today. We must, I think, firmly resist the revival of this out-worn fallacy. Cavalier v. Pope is a relic of it which must be kept in a close confinement. This is not a landlord and tenant case".

We respectfully agree that Cavalier v. Pope must be kept in close confinement.

In Dutton v. Boqnor Regis Urban District Council, (1972) 1 Queen's Bench, 373 the court of appeal upheld a judgment against the defendant council at the suit of a plaintiff who had bought a house built with defective foundations from the first purchaser and had suffered financial loss. By a majority the court extended the Donoqhue v. Stevenson neighbour principle to cover her claim against the council, she having settled her claim against the builder owner on advice that as the law stood a claim in negligence against him could not succeed. Lord Justice Stamp considered it was not open to this court to question the true effect of Cavalier v. Pope and Bottomley v. Bannister (ibid. at 414); Lord Justice Sachs said that Bottomley v. Bannister had now to be looked at in the light of what was decided in Donoqhue v. Stevenson, and Cavalier v. Pope was distinguishable because the landlord did not there create the dangerous state of affairs and the defect was obvious (ibid. 401-2). Lord Denning, Master of the Rolls, however, stated that Bottomley v. Bannister was no longer authority and "Cavalier v. Pope has gone too. It was reversed by the Occupiers' Liability Act 1957, s.4(l)". (ibid. 394).

We gratefully accept what Lord Justice Sachs said, but we must respectfully dissent from what Lord Denning, Master of the Rolls, said about Cavalier v. Pope. S.4(1) of the Act of 1957, and s.4(l) of the Defective Premises Act 1972, which replaced and extended it, imposed a liability only on landlords who are under an obligation to repair or maintain the tenants' premises and only for defects in maintenance and repair. S.4(l) of the Act of 1957 limited a landlord's liability to default in carrying out his obligation for maintenance or repair; s.4(l) of the Act of 1972, while it extends the ambit of the duty to all persons who might reasonably be expected to be affected by defects in the state of the premises, retains the limitation by defining defects in s.4(3) as those arising from an act or omission which constitutes a failure by the landlord to carry out his obligation for maintenance or repair. Neither of these sections imposed on a landlord any duty in respect of the state of a tenant's premises at the date of letting.

How do these statutory duties affect Cavalier v. Pope? The House of Lords there decided two things:

(1) A landlord can let an unfurnished house which is in a dangerous state - and that means if the tenant had been injured by a danger known to the landlord but not to him, he could not have recovered damages for any breach of duty, in contract or in tort, unless there was a special term imposing not merely a contractual duty to maintain and repair but a warranty of fitness for safe habitation. The tenant (Mr. Cavalier) had a special contract and was not himself injured , but the House began their consideration of his wife's case by approving Robbins v. Jones.

(2) A stranger to the contract of tenancy was owed no duty; so the tenant's wife who was injured, lost her action against the landlord. Landlords, and not only landlords but owners who did not let but sold their land and buildings, were immune from liability not only to strangers to their contracts of sale or letting but to the parties to those contracts themselves. For contractual duties were regarded as excluding delictual duties and a contractual relationship determined completely the rights and obligations of the related parties, as well as the rights of third parties.

There are enactments which improve the position of some tenants against some landlords by the statutory implication of covenants to keep in repair (Housing Act 1961, s.32); and, more important, though not applicable to the tenant with whom this appeal is concerned, by implying a condition that the house is at the commencement of the tenancy, and an undertaking that it will be left by the landlord during the tenancy, fit for human habitation (Housing Act 1957 s.6). It is also now the law, authoritatively stated by Lord Macmillan in Donoqhue v. Stevenson, (1932) Appeal Cases at 610, that one person may owe another a common law duty of care coexisting with a contractual duty and a contractual relationship does not necessarily exclude a relationship of proximity giving rise to the duty formulated in that case. It is unnecessary to go into the important effects that this coexistence of duties may have on the measure of damages and the period of limitation. Suffice it to note for the purpose of this appeal that this development of the law has been applied by this court to lessees of a house built on land without proper support and consequently unfit for habitation so as to enable them to recover damages for financial loss both from the builders of the house for their negligence and from the developers of the land, who employed the builders and let the house, for their negligence as well as for their breach of contract: Batty v. Metropolitan Property Realisations Ltd., (1978) Queen's Bench 554, a case relied on by the judge and approved by the House of Lords in Junior Books Ltd. v. Veitchi Co. Ltd., (1983) 1 Appeal Cases 520.

That was a case of economic loss, but it cannot be argued that the tenants would have been any less successful if they had suffered personal injury. The court was applying the decision of the House of Lords in Anns v. Merton London Borough, (1978) Appeal Cases 728, which considered a local authority's liability to lessees of flats for the negligence of one of its officers in inspecting inadequate foundations of the block containing the flats, and held that the local authority did owe the lessees a duty of care, as had been rightly decided in Dutton's case. In the course of the appeal the House had to consider the position of the builder. Lord Wilberforce, with whose speech Lords Diplock, Simon of Glaisdale and Russell of Killowen agreed, said this:

"I agree with the majority in the Court of Appeal in thinking that it would be unreasonable to impose liability in respect of defective foundations upon the council, if the builder, whose primary fault it was, should be immune from liability. So it is necessary to consider this point, although it does not directly arise in the present appeal. If there was at one time a supposed rule that the doctrine of Donoghue v. Stevenson did not apply to realty, there is no doubt under modern authority that a builder of defective premises may be liable in negligence to persons who thereby suffer injury: see Gallagher v. N. McDowell Ltd., (1961) N.I. 26 per Lord MacDermott C.J. - a case of personal injury. Similar decisions have been given in regard to architects - (Clayton v. Woodman & Son (Builders) Ltd., (1962) 2 C.B. 533 and Clay v. A.J. Crump & Sons Ltd., (1964) 1 Q.B. 533). Gallagher's case expressly leaves open the question whether the immunity against action of builder owners, established by older authorities (e.g. Bottomley v. Bannister) still survives.

"That immunity, as I understand it, rests partly upon a distinction being made between chattels and real property, partly upon the principle of 'caveat emptor' or, in the case where the owner leases the property, on the proposition 'for, fraud apart, there is no law against letting a tumbledown house': see Robbins v. Jones per Erle C.J. But leaving aside such cases as arise between contracting parties, when the terms of the contract have to be considered (see Voli v. Inglewood Shire Council (1963) 110 C.L.R. 74, 85, per Windeyer J.), I am unable to understand why this principle or proposition should prevent recovery in a suitable case by a person, who has subsequently acquired the house, upon the principle of Donoghue v. Stevenson: the same rules should apply to all careless acts of a builder: whether he happens also to own the land or not. I agree generally with the conclusions of Lord Denning, M.R. on this point in Dutton v. Bognor Regis Urban District Council (1972) 1 Q.B. 373, 392 - 394".

Lord Wilberforce there does two things. First, he approves the decision of the court of appeal in Northern Ireland that a builder may be liable to those injured by his negligence in building, and thereby confirms Lord Buckmaster's fear that English law would in this respect have to conform to the laws of Babylon. Secondly, he answers the open question whether the immunity of builder owners still survives in the negative; the builder owner is no more immune from the consequences of careless building than is the builder who is not the owner. Lord Salmon was of the same opinion. He said:

"I recognise that it would be unjust if, in the circumstances of this case, the whole burden should fall upon the council whilst the contractor who negligently put in the faulty foundations remained free from liability. It has, however, been decided in Gallagher v. N. McDowell Ltd. that a building contractor owes a duty of care to the lawful user of a house and that accordingly the contractor is liable for any damage caused to a lawful user by the contractor's negligence in constructing the house. I agree with that decision for the reasons given by Lord MacDermott C.J. in delivering the leading judgment in the Northern Ireland Court of Appeal. I also adopt what Lord Denning M.R. said on this topic in Dutton v. Bognor Regis Urban District Council:

'The distinction between chattels and real property is quite unsustainable' (in relation to the principles laid down in Donoghue v. Stevenson). 'If the manufacturer of an article is liable to a person injured by his negligence, so should the builder of a house be liable'. The contrary view seems to me to be entirely irreconcilable with logic or common sense.

"The instant case differs from Gallagher's case in that the contractors were also the owners of the land on which they built the block of maisonettes. In Bottomley v. Bannister (decided just before Donoghue v. Stevenson) Scrutton L.J. said at p.468:

'Now it is at present well established English law that, in the absence of express contract, a landlord of an unfurnished house is not liable to his tenant, or a vendor of real estate to his purchaser, for defects in the house or land rendering it dangerous or unfit for occupation, even if he has constructed the defects himself or is aware of their existence'.

I certainly do not agree with the words in that passage 'even if he has constructed the defects himself. The immunity of a landlord who sells or lets his house which is dangerous or unfit for habitation is deeply entrenched in our law- I cannot, however, accept the proposition that a contractor who has negligently built a dangerous house can escape liability to pay damages for negligence to anyone who, e.g. fall through a shoddily constructed floor and is seriously injured, just because the contractor happens to have been the owner of the land upon which the house stands. If a similar accident had happened next door in a house which the contractor had also negligently built on someone else's land, he would not be immune from liability. This does not make any sense. In each case the contractor would be sued for his negligence as a contractor and not in his capacity as a land-owner: the fact that he had owned one clot of land and not the other would be wholly irrelevant. I would hold that in each case he would be liable to pay damages for negligence. To the extent that Bottomley v. Bannister differs from this proposition it should, in my view, be overruled. Cavalier v. Pope is so far away from the present case that I express no opinion about it".

From the middle of the last passage we extract Lord Salmon's opinion that a landlord of an unfurnished house may be liable to his tenant for defects rendering it dangerous if he has constructed them himself.

If that is the law, this appeal fails. We think the decision of this court in Batty's case confirms that it is the law. The landowner, who designs or builds a house or flat, is no more immune from personal responsibility for faults of construction than a building contractor, or from personal responsibility for faults of design than an architect, simply because he has disposed of his house or flat by selling or letting it. The council through their architects* department designed, and through their direct works department built, the plaintiff's flat with its dangerous glass panel. They owed him, not as tenant but, like his wife or his child, as a person who might reasonably be expected to be affected by the provision of the glass panel in the flat, a duty to take such care as was reasonable in all the circumstances to see that he was reasonably safe from personal injury caused by the glass panel. They 'knew the thickness of the glass, and on the judge's finding they ought to have known that, placed where it was, it was dangerous to the occupants of the flat. The plaintiff himself considered it dangerous; but even if he had the right (which we doubt), he certainly was under no duty to protect or remove it, and he had been told it was standard and nothing could be done about it.

In those circumstances his knowledge that the glass was dangerously thin cannot exonerate the council. "Knowledge or opportunity for inspection, per se and without regard to any consequences they may have in the circumstances, cannot be conclusive against the plaintiff", said Sir Raymond Evershed, Master of the Rolls, with the agreement of Lord Justice Jenkins, in Denny v. Supplies & Transport Co. Ltd., (1950) 2 King's Bench 374 at 382; and this court there held that stevedores, who had stowed timber so badly that a wharfingers' employee was injured in the course of unloading it, were liable to him on the principle of Donoghue v. Stevenson, notwithstanding the fact that at the start of the unloading he had drawn attention to the bad loading and had thereafter continued to unload because there was no practical alternative. That knowledge of a danger was only a bar to a person injured by the danger being owed a duty of care by the person who created the danger where the injured person was really and truly free to act on his knowledge, was a principle stated by Lord Denning, when sitting in this court as Lord Justice Denning, in several appeals concerning persons on or near dangerous premises: Greene v. Chelsea Borough Council, (1954) 2 Queen's Bench 127, 139; Slater v. Clay Cross Co. Ltd., (1956) 2 Queen's Bench 264, 271; Rider v. A.C. Billings & Son, (1957) 1 Queen's Bench 6, 59. His opinion was recognized in s.2(4) of the Occupiers' Liability Act 1957 and approved by the House of Lords when the last case went to appeal: (1958) Appeal Cases 240, especially by Lord Somerville of Harrow at 265-6.

From these authorities we take the law to be that an opportunity for inspection of a dangerous defect, even if successfully taken by A who is injured by it, will not destroy his proximity to B who created the danger, or exonerate B from liability to A, unless A was free to remove or avoid the danger in the sense that it was reasonable to expect him to do so, and unreasonable for him to run the risk of being injured by the danger. It was not reasonable or practical for the plaintiff to leave the flat or to alter the glass panel. He remained in law the council's neighbour, although he had complained that the glass was too thin.

We reach our decision without treating Cavalier v. Pope as overruled, for Mr. Pope did not design or construct the floor through which Mrs. Cavalier fell. He was not a builder owner, but what may be called a bare landlord, or a landowner as such: Gallagher v. McDowell (1961) N.I. 26, 38 per Lord MacDermott, Lord Chief Justice. Counsel for Mr. and Mrs. Anns submitted to the House that it was not necessary to overrule Cavalier v. Pope ((1978) Appeal Cases at 744 F); and their Lordships refrained from doing so, and left for another day the immunity of a bare landlord, too closely confined to avail the council but too deeply entrenched in our law for any court below the highest to disturb or destroy it.

We have not investigated the statutory powers under which the council built these flats; but the decision of the Supreme Court in Eire in Siney v. Corporation of Dublin, (1980) Irish Reports 400 suggests that the council's position as housing authority might provide another reason for making them liable to the plaintiff in negligence, even though they are not liable in contract.

We were pressed by Mr. Rose with several objections to the council's liability. One was that in holding them liable we should be putting into effect the recommendation of the Law Commission's Report No. 40 on Civil Liability of Vendors & Lessors for Defective Premises, which was embodied in Clause 3 of their Draft Defective Premises Bill (p.38) but not in the Act of 1972, which adopted their other recommendations. That clause imposed a duty to neighbours on the Donoqhue v. Stevenson principle upon

"a person who disposes of premises, knowing at the material time or at any time thereafter while he retains possession of the premises that there are defects in the state of his premises".

But that clause carried out the Commission's recommendations about dangerous defects not created by the vendor or lessor (pp.16 - 19) and this appeal is concerned with dangerous defects created by the vendor or lessor (pp.13 -16), which was, perhaps imperfectly, provided for by clause 1 (p.28) now substantially reproduced in s.l of the Act.

Another objection was that causes of action arising at common law from the same defect in a dwelling but resulting in different kinds of injury and damage would accrue at different times for the purposes of the Limitation Acts. A breach of the statutory duty to build dwellings properly, which is imposed by s.l on "a person taking on work for or in connection with the provision of a dwelling", gives rise to a cause of action which is deemed by s.l(5) to accrue "at the time when the dwelling was completed", and that is so whether the breach causes personal injury and consequential loss or physical damage to property resulting in personal injury or economic loss. (The wide words describing the person who owes the duty might cover the builder owner, but it has not been contended for the council that, if they do, they exclude the common law duty which the judge imposed. Indeed it could not be contended in the face of s.6(2) of the Act, which provides that "any duty imposed by or enforceable by virtue of any provision of this Act is in addition to any duty a person may owe apart from that provision"-) If, however, a builder owners owe a common law duty, breaches of it in faulty design and construction will constitute causes of action which accrue, where the damage caused by the negligent design or construction results in economic or financial loss, at the date when the damage came into existence, whether discoverable then or only later (Pirelli v. Oscar Faber & Partners Ltd., (1983) 2 Appeal Cases 1), but where the damage results in personal injury, at the date when the injury causes damage; which, except in cases where the damage is done by the insidious onset of a progressive disease (Courtledqe v. E. Joplinq & Sons Ltd., (1963) Appeal Cases 758), may be many years later, as in the present case. It might indeed have been the end of this century before anybody put his hand through one of these glass panels. But defects in design and construction are in most cases likely to cause discoverable injury or damage to persons on the property within a reasonable time after the building has been completed, and we do not foresee a spate of actions too late to be tried fairly for builder owners.

A third objection was the cost to local authorities and the council in particular; the expense of replacing all these panels with thicker glass would be very great. But if the flats are dangerous as they are, the money would be well spent in making them safe.

In our judgment, the judge formulated the duty too widely so as to include the bare landlord as well as the builder owner. It may be that to impose a duty on all landowners who let or sell their land and dwellings, whether or not they are their own designers or builders, would be so great a change in the law as to require legislation. But, in our judgment, this court can and should hold, following Batty v. Metropolitan Property Realisations and distinguishing Cavalier v. Pope, that the council, as their own architect and builder, owed the plaintiff a duty to take reasonable care in designing and constructing the flat to see that it was reasonably safe when they let it to him. They failed in that duty. We accordingly dismiss the appeal.

LORD JUSTICE STEPHENSON: The appeal is dismissed for the reasons given in the judgment of the court, which has been handed down.

(ORDER; Appeal dismissed with costs, to be taxed in Liverpool; legal aid taxation of respondent's costs)