Anns V Merton LBC
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was a decision of the
House of Lords The House of Lords, also known as the House of Peers, is the Bicameralism, upper house of the Parliament of the United Kingdom. Membership is by Life peer, appointment, Hereditary peer, heredity or Lords Spiritual, official function. Like the ...
. It established a broad test for determining the existence of a
duty of care In tort law, a duty of care is a legal obligation that is imposed on an individual, requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be establis ...
in the
tort A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...
of negligence called the Anns test or sometimes the two-stage test for true third-party negligence. This case was overruled by ''
Murphy v Brentwood DC was a judicial decision of the House of Lords in relation to recovery for pure economic loss in tort. The court overruled the decision ''Anns v Merton London Borough Council'' with respect to duty of care in English law. Facts A builder fai ...
''
991 Year 991 (Roman numerals, CMXCI) was a common year starting on Thursday (link will display the full calendar) of the Julian calendar. Events * March 1: In Rouen, Pope John XV ratifies the first Peace and Truce of God, Truce of God, between ...


Facts and background

In 1962 the local authority of Merton approved building plans for the erection of a block of
maisonettes An apartment (American English), or flat (British English, Indian English, South African English), is a self-contained housing unit (a type of residential real estate) that occupies part of a building, generally on a single story. There are ...
. The approved plans showed the base wall and concrete
foundations Foundation may refer to: * Foundation (nonprofit), a type of charitable organization ** Foundation (United States law), a type of charitable organization in the U.S. ** Private foundation, a charitable organization that, while serving a good cause ...
of the block to be 'three feet or deeper to the approval of local authority eing Merton. The notice of approval said that the
bylaws A by-law (bye-law, by(e)law, by(e) law), or as it is most commonly known in the United States bylaws, is a set of rules or law established by an organization or community so as to regulate itself, as allowed or provided for by some higher authorit ...
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 lease A 999-year lease, under historic common law, is an essentially permanent lease of property. The lease locations are mainly in Britain, its former colonies, and the Commonwealth. A former colony, the Republic of Mauritius (''The Raphael Fishing Com ...
s for the maisonettes, the last
conveyance Conveyance may refer to: * Conveyance, the documentation of the transfer of ownership of land from one party to another—see conveyancing * Public conveyance, a shared passenger transportation service * A means of transport * Water conveyance, a ...
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
writ In common law, a writ (Anglo-Saxon ''gewrit'', Latin ''breve'') is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court. Warrants, prerogative writs, subpoenas, a ...
s 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 A court of appeals, also called a court of appeal, appellate court, appeal court, court of second instance or second instance court, is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal. In much of t ...
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.


Legal 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 The House of Lords, also known as the House of Peers, is the Bicameralism, upper house of the Parliament of the United Kingdom. Membership is by Life peer, appointment, Hereditary peer, heredity or Lords Spiritual, official function. Like the ...
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 was delivered by
Lord Wilberforce Richard Orme Wilberforce, Baron Wilberforce, (11 March 1907 – 15 February 2003) was a British judge. He was a Lord of Appeal in Ordinary from 1964 to 1982. Early life and career Born in Jalandhar, India, Richard Wilberforce was the son of S ...
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 accepted what might be seen as the high point of the adoption of the statements of
Lord Atkin James Richard Atkin, Baron Atkin, (28 November 1867 – 25 June 1944), commonly known as Dick Atkin, was an Australian-born British judge, who served as a lord of appeal in ordinary from 1928 until his death in 1944. He is especially remembere ...
in ''
Donoghue v Stevenson was a Lists of landmark court decisions, landmark court decision in Scots delict law and English tort law by the House of Lords. It laid the foundation of the modern law of negligence in Common law jurisdictions worldwide, as well as in Scotlan ...
'', the "neighbour principle". He says: - ''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. Applying that general statement and approach, Lord Wilberforce considered the particular position of the council as the administrator of the Public Health Act 1936 and its
bylaw A by-law (bye-law, by(e)law, by(e) law), or as it is most commonly known in the United States bylaws, is a set of rules or law established by an organization or community so as to regulate itself, as allowed or provided for by some higher authorit ...
s as to building made by the council under that Act. Lord Wilberforce summarised the position as being one where the council was administering an act-enabling local council, through building bylaws to supervise and control the operations of builders, particularly the supervision of the foundations of buildings because the foundation is covered up as the building proceeds. This is specifically recognised by a particular bylaw which required that the foundation of every building should be taken down to such a depth or be so designed and constructed as to safeguard the building against damage by swelling or shrinkage of the subsoil. Lord Wilberforce noted that the builder was required to notify the local authority before covering up the foundations so that the local authority had the right to inspect and to insist on correction. As Lord Wilberforce notes, the issue with respect to the council is that it is discharging powers and duties as a matter of public and not private law. However, Lord Wilberforce notes that there is no doubt that private law duties arise over and above or alongside the public law functions. Lord Wilberforce notes that almost every exercise of statutory power must inherently adversely affect the interests of private citizens but in many cases the powers can be carried out properly and without causing harm to parties likely to be affected. The court needs to give consideration to the balance between efficiency and thrift; the local council was under no duty to inspect but they are under a duty to give proper consideration whether they should inspect or not, further that if the council does inspect, it must carry out that inspection exercising reasonable care. Lord Wilberforce had to consider a decision of the House of Lords in ''
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'' where it was argued a Statutory Authority failed in reasonable time to repair the breach of a drainage bank and damage was sustained by the plaintiffs land as a result. Lord Wilberforce says that case was decided on the basis of a different statute, subject to a different range of considerations but that it might be said that there was no real consideration of a general duty of care and that the content of any duty of care against the background of considerable flooding and other activity being undertaken by the defendant argued for a lower standard of care. If not the absence of a duty of care. Lord Wilberforce had no difficulty saying that on that basis the duty of care existed was affirmed and was owed to the owners and occupiers of the houses. The owners or occupiers are not an endless indeterminate class of potential plaintiffs. The nature of the duty of care must be closely related to the consideration of the statutory powers granted to the council and the exercise of due care in those powers. Lord Wilberforce dismissed the limitation of actions issues quite quickly and held that a claim was not statute barred.


Rejection of the precedent

Over the following years the Courts backed away from the ''Anns'' approach and instead decided on a more category-based reasoning. The test was finally put to rest with the case of ''
Murphy v Brentwood DC was a judicial decision of the House of Lords in relation to recovery for pure economic loss in tort. The court overruled the decision ''Anns v Merton London Borough Council'' with respect to duty of care in English law. Facts A builder fai ...
''
991 Year 991 (Roman numerals, CMXCI) was a common year starting on Thursday (link will display the full calendar) of the Julian calendar. Events * March 1: In Rouen, Pope John XV ratifies the first Peace and Truce of God, Truce of God, between ...
1 AC 398, 9902 All ER 908. It has been suggested by academics that this turn-around was in reaction to the conservative political climate in the
United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the continental mainland. It comprises England, Scotland, Wales and North ...
at the time. Nevertheless, the Anns approach has inspired the development of tort law in many parts of the world. It has since been adopted by
Canada Canada is a country in North America. Its ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, covering over , making it the world's second-largest country by tot ...
in the case ''
City of Kamloops v. Nielsen ''Kamloops (City of) v Nielsen'', 9842 SCR 2 ("''Kamloops''") is a leading Supreme Court of Canada decision setting forth the criteria that must be met for a plaintiff to make a claim in tort for pure economic loss. In that regard, the ''Kamloops'' ...
'' and later modified by '' Cooper v. Hobart''. The modified ''Anns'' test is largely used for establishing new duties of care.


Canada

The ''Anns'' Test was adopted by the Supreme Court of Canada (SCC) in 1984 to help determine the ruling of ''Kamloops v Nielsen'' (1984). Despite being overruled in the UK, the ''Anns'' Test remains current in Canadian law where it has been used in 31 Supreme Court rulings.{{cite journal , last1=Blom , first1=Joost , title=Do we really need the Anns Test for duty of care in negligence? , journal=Alberta Law Review , date=2016 , volume=53 , issue=4 , pages=895-911


References


External links


Full text of decision from BAILII.org
House of Lords cases English tort case law Lord Wilberforce cases 1977 in United Kingdom case law