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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Peabody Donation Fund Governors v Sir Lindsay Parkinson & Co Ltd [1983] UKHL 5 (18 October 1983)
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Cite as: [1983] UKHL 5, [1985] AC 210

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JISCBAILII_CASE_TORT

    Parliamentary Archives,
    HL/PO/JU/18/244

    Governors of the Peabody Donation Fund
    (Appellants)

    v.

    Sir Lindsay Parkinson & Company Limited and others

    (Respondents)

    JUDGMENT

    Die Jovis 18° Octobris 1984

    Upon Report from the Appellate Committee to whom was
    referred the Cause Governors of the Peabody Donation Fund
    against Sir Lindsay Parkinson & Company Limited and others,
    That the Committee had heard Counsel on Thursday the 5th,
    Monday the 9th, Tuesday the 10th and Wednesday the 11th days
    of July last upon the Petition and Appeal of the Governors
    of the Peabody Donation Fund of 207 Waterloo Road, London
    SE1 8XW praying that the matter of the Order set forth in
    the Schedule thereto, namely an Order of Her Majesty's Court
    of Appeal of the 29th day of July 1983, might be reviewed
    before Her Majesty the Queen in Her Court of Parliament and
    that the said Order might be reversed, varied or altered or
    that the Petitioners might have such other relief in the
    premises as to tier Majesty the Queen in Her Court of
    Parliament might seem meet; as also upon the Case of Sir
    Lindsay Parkinson & Company Limited and others lodged in
    answer to the said Appeal; and due consideration had this
    day of what was offered on either side in this Cause:

    It is Ordered and Adjudged, by the Lords Spiritual and
    Temporal in the Court of Parliament of Her Majesty the Queen
    assembled, That the said Order of tier Majesty's Court of
    Appeal of the 29th day of July 1983 complained of in the
    said Appeal be, and the same is hereby, Affirmed and that
    the said Petition and Appeal be, and the same is hereby,
    dismissed this House: And it is further Ordered, That the
    Appellants do pay or cause to be paid to the said
    Respondents the Costs incurred by them in respect of the
    said Appeal, the amount thereof to be certified by the Clerk
    of the Parliaments if not agreed between the parties.

    Cler: Parliamentor:

    HOUSE OF LORDS

    GOVERNORS OF THE PEABODY DONATION FUND

    (APPELLANTS)

    v.

    SIR LINDSAY PARKINSON & COMPANY LIMITED AND OTHERS

    (RESPONDENTS)

    Lord Keith of Kinkel
    Lord Scarman
    Lord Bridge of Harwich
    Lord Brandon of Oakbrook
    Lord Templeman


    LORD KEITH OF KINKEL

    My Lords,

    In 1972 the appellants, the Governors of the Peabody
    Donation Fund
    ("Peabody") decided to undertake the development
    for housing of a site known as Knights Hill, in the London Borough
    of Lambeth. They engaged as contractors for the project Sir
    Lindsay Parkinson & Co. Ltd. ("the contractors") and as architects
    Austin Vernon & Partners ("the architects"). Consulting engineers
    were also instructed.

    The site of the development, which was for 245 houses,
    presented certain problems. It required to be terraced and the
    nature of the subsoil was London clay, which tends to expand and
    contract with the seasons and to give rise to movement. For this
    reason it was appreciated by the architects, and the consulting
    engineers advising them, that the traditional rigid type of drainage
    system was likely to be unsuitable for the project, since there
    would be a high probability of failure, and the architects therefore
    designed a system which incorporated flexible joints between pipes
    at various critical points and submitted plans for approval to the
    respondents, the London Borough of Lambeth ("Lambeth").

    The application for approval was made in pursuance of
    paragraphs 13(1) and 15(1) and (2) of Part III of Schedule 9 to the
    London Government Act 1963, which provide:

    "13(1) It shall not be lawful in an inner London borough (a)
    to erect any house or other building, or (b) to rebuild any
    house or other building which has been pulled down to a
    level below, the floor commonly called the ground floor,
    unless there are provided to the satisfaction of the borough
    council drains conforming with the requirements of this
    paragraph and all such drains and ail works and apparatus in
    connection therewith are constructed to the satisfaction of
    the council and, in particular, are constructed of such
    materials and size, at such level and with such fall, as are
    approved by the council and are provided with a water
    supply . . ."

    - 1 -

    "15(1) No person shall - (a) begin to lay or dig out the
    foundations of any house or building in an inner London
    borough, or to rebuild any house or building therein; or (b)
    begin to make any drain for the purpose of draining directly
    or indirectly into a sewer under the control of the council
    of such a borough, unless, at least seven days previously, he
    has given to the borough council notice of his intention so
    to do, and if any person begins to lay or dig out the
    foundations of any such house or building, or to make any
    drain for the purpose aforesaid, in contravention of this
    paragraph, he shall be liable to a fine not exceeding £5 and
    to a further fine not exceeding £2 for every day thereafter
    until the notice is given. (2) If any house or building, or
    any drain for draining directly or indirectly into a sewer
    under the control of the council of a London borough, or
    any connections to such a drain, or any works, apparatus or
    water supply in connection with such a drain, is or are
    begun, erected, made or provided in an inner London
    borough in contravention of the provisions of this Part of
    this Schedule or of the corresponding provisions of any
    enactment repealed by this Act, the council of the borough
    at their option may either - (a) serve upon the owner of
    the house or building or of the drain (as the case may be) a
    notice requiring him to cause the house or building to be
    demolished or altered or to cause the drain or the
    connections or other works and apparatus in connection
    therewith or the water supply to be relaid, remade, altered
    or added to, as the case may require; or (b) recover from
    the person in default, as a debt due from him to the
    council, a penalty not exceeding £5, and a further penalty
    not exceeding £2 for every day on which the contravention
    continues."

    The application was made on 6 April 1972, and an informal
    indication seems to have been given by Lambeth that it was likely
    to be approved. Early in 1973 the contractors were ready to
    begin the construction of the drainage system. The architects'
    representative on the site was a trainee architect named Mitchell.
    Lambeth had instructed a drainage inspector named Marlow to
    carry out inspections of the drainage installation. On 2 February
    1973 Mitchell and Marlow met and agreed between themselves that
    in certain parts of the system the planned flexible joints should be
    abandoned and fixed joints substituted. On 7 February 1973,
    Mitchell wrote a letter to the contractors' site agent, who had
    also been present at the meeting, confirming the agreement to this
    variation. It does not appear that either Mitchell or Marlow ever
    informed their respective principals about what they had done. In
    the result, the trial judge found, and the finding is not disputed by
    the appellants, that Marlow had neither actual nor ostensible
    authority to agree the variation so that Lambeth itself bears no
    responsibility for his action.

    Very soon afterwards, on 14 February 1973, Lambeth,
    through their senior assistant director (civil engineering), wrote to
    the architects intimating approval in principle of the plans
    originally submitted by the latter, i.e. those showing flexible joints
    throughout. However, the contractors commenced the construction
    of drains incorporating rigid joints on the lines agreed between
    Mitchell and Marlow.

    - 2 -

    The next development was that Marlow was superseded by
    another drainage inspector, named Toogood, who had little
    experience in this field having previously been employed as a
    plumber. He asked the contractors' site agent for information
    about the nature of the drains which were being constructed. The
    site agent wrote a letter, addressed to the Lambeth Public Health
    Department and headed "For the attention of Mr. Toogood,"
    indicating inter alia that runs and connections into and abutting
    the dwelling houses were laid with rigid joints. Toogood took no
    action on this letter and in particular did not bring it to the
    attention of any of his superiors in the department. Had he done
    so there can be no doubt that steps would have been taken to
    ensure that flexible joints were installed throughout the system.

    The upshot was that construction with fixed joints proceeded
    and in due course tests carried out in late 1975 and early 1976
    revealed that many of the drains had failed. Reconstruction was
    necessary, at a cost of some £118,000, completion of the
    development was delayed for about three years, with consequent
    loss of rents for Peabody, and Peabody were faced with substantial
    claims by the contractors for additional payments said to be due
    to them because of the delay.

    In these circumstances, Peabody started proceedings against
    the contractors, the architects and Lambeth. Their case against
    the contractors was based on the allegation that the failure of the
    drains was caused by faulty workmanship. Against the architects
    it was alleged that they failed to check the contractors' faulty
    workmanship and further that they instructed the contractors to
    install drains lacking the requisite flexible joints. In the event the
    claim against the architects was compromised. As regards
    Lambeth the material averment of negligence against them was in
    these terms:

    "Knowing that rigid drains were being installed between the
    vertical stacks in the buildings and the manholes following
    receipt of the said letter of 4 May 1973, thereafter failing
    to require flexibly jointed drains wherever rigid drains had
    been or were to be installed."

    The case came for trial on issues of liability before Judge Oddie
    sitting as a deputy official referee. On 24 January 1983 he gave
    judgment holding that, although there had been some faulty
    workmanship on the part of the contractors, this was not the
    cause of the failure of the drains, and that the cause of the
    failure was the design change instructed by Mitchell from flexible
    joints to rigid joints. He did not have to deal with the claim
    against the architects since that, as mentioned above, had been
    compromised. He went on to find that Lambeth were liable in
    damages to Peabody on the ground of failure to take steps to
    ensure that the drainage system as installed complied with the
    design originally approved by them.

    Lambeth appealed to the Court of Appeal against the latter
    part of the judgment, and on 29 July 1983 that court (Lawton, Fox
    and Slade L.JJ.) allowed the appeal and reversed the decision of
    the trial judge. Peabody now appeal to your Lordships' House.

    - 3 -

    Peabody's case, in substance, is that Lambeth were under a
    duty of care, owed to Peabody, when they became aware through
    the letter of 4 May 1973 that the contractors were installing
    drains with rigid joints, to invoke their powers under paragraph 15
    of Part III of Schedule 9 to the Act of 1963 so as to require a
    reversion to the flexible joint design which they had previously
    approved. The duty is not said to be a statutory one, but one
    that arose on common law principles because Lambeth ought to
    have foreseen that, if they did not take steps to stop the
    installation of drains with rigid joints, severe economic loss would
    ensue to Peabody through the necessity at some future date of
    taking up these drains and replacing them with others of the
    approved design, as in fact happened.

    It may be accepted that knowledge of the contents of the
    letter of 4 May 1973 is to be imputed to Lambeth. It was
    addressed to Lambeth's Public Health Department, albeit for the
    attention of Mr. Toogood, and the latter was clearly under a duty
    to bring it to the notice of higher authority. It may also be
    accepted that Lambeth had power under paragraph 15 of Part III
    of Schedule 9 to stop the unauthorised installation. No doubt it
    would have been sufficient, in fact, to draw to Peabody's attention
    that the rigid joints were unauthorised. So the issue really comes
    to be whether Lambeth owed a duty to Peabody to warn them
    that they were heading for financial disaster.

    Lord Atkin's famous enunciation of the general principles
    upon which the law of negligence is founded, in Donoghue v.
    Stevenson
    [1932] AC 562, 580, has long been recognised as not
    intended to afford a comprehensive definition, to the effect that
    every situation which is capable of falling within the terms of the
    utterance and which results in loss automatically affords a remedy
    in damages. Lord Reid said in Dorset Yacht Co. v. Home Office
    [1970] AC 1004, 1027:

    "It is not to be treated as if it were a statutory definition.
    It will require qualification in new circumstances. But I
    think that the time has come when we can and should say
    that it ought to apply unless there is some justification or
    valid explanation for its exclusion. For example, causing
    economic loss is a different matter; for one thing, it is
    often caused by deliberate action. Competition involves
    traders being entitled to damage their rivals' interests by
    promoting their own, and there is a long chapter of the law
    determining in what circumstances owners of land can and
    in what circumstances they may not use their proprietary
    rights so as to injure their neighbours. But where
    negligence is involved the tendency has been to apply
    principles analogous to those stated by Lord Atkin: cf.
    Hedley Byrne & Co. Ltd, v. Heller & Partners Ltd. [1964]
    A.C. 465. And when a person has done nothing to put
    himself in any relationship with another person in distress or
    with his property mere accidental propinquity does not
    require him to go to that person's assistance. There may
    be a moral duty to do so, but it is not practicable to make
    it a legal duty."

    Lord Wilberforce spoke on similar lines in Anns v. Merton London
    Borough Council [1978] AC 728, 751-752:

    - 4 -

    "Through the trilogy of cases in this House - Donoghue v.
    Stevenson
    [1932] AC 562, Hedley Byrne & Co. Ltd. v.
    Heller & Partners Ltd. [1964] AC 465, and Dorset Yacht
    Co. Ltd, v. Home Office [1970] AC 1004, 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:
    see Dorset Yacht case [1970] AC 1004, per Lord Reid at
    p. 1027."

    There has been a tendency in some recent cases to treat
    these passages as being themselves of a definitive character. This
    is a temptation which should be resisted. The true question in
    each case is whether the particular defendant owed to the
    particular plaintiff a duty of care having the scope which is
    contended for, and whether he was in breach of that duty with
    consequent loss to the plaintiff. A relationship of proximity in
    Lord Atkin's sense must exist before any duty of care can arise,
    but the scope of the duty must depend on all the circumstances of
    the case. In Dorset Yacht Co. v. Home Office [1970] AC 1004,
    1038, Lord Morris of Borth-y-Gest, after observing that at the
    conclusion of his speech in Donoghue v. Stevenson [1932] AC 562,
    Lord Atkin said that it was advantageous if the law "is in
    accordance with sound common sense" and expressing the view that
    a special relation existed between the prison officers and the
    yacht company which gave rise to a duty on the former to control
    their charges so as to prevent them doing damage, continued, at
    p.1039:

    "Apart from this I would conclude that, in the situation
    stipulated in the present case, it would not only be fair and
    reasonable that a duty of care should exist but that it
    would be contrary to the fitness of things were it not so. I
    doubt whether it is necessary to say, in cases where the
    court is asked whether in a particular situation a duty
    existed, that the court is called upon to make a decision as
    to policy. Policy need not be invoked where reason and
    good sense will at once point the way. If the test as to
    whether in some particular situation a duty of care arises
    may in some cases have to be whether it is fair and
    reasonable that it should so arise, the court must not shrink
    from being the arbiter. As Lord Radcliffe said in his
    speech in Davis Contractors Ltd, v. Fareham Urban District
    Council
    [1956] AC 696, 728, the court is 'the spokesman of
    the fair and reasonable man.'"

    - 5 -

    So in determining whether or not a duty of care of particular
    scope was incumbent upon a defendant it is material to take into
    consideration whether it is just and reasonable that it should be
    so.

    In the instant case Peabody, the owners of the building site
    and the undertakers of the development thereon, bore
    responsibility, under paragraph 13 of Part III of Schedule 9 to the
    Act of 1963, for securing that the drains conformed to the design
    approved by Lambeth. Mr. Dyson, for Peabody, brought to the
    attention of the House certain drainage byelaws made by the
    Greater London Council in 1962 under the statutory predecessor of
    the Act of 1963. These undoubtedly place certain very specific
    obligations upon contractors carrying out building operations, but
    they do nothing to detract from what is clearly the proper
    construction of paragraph 13(1), namely, that observance of its
    provisions is incumbent upon any person who puts in train a house
    building project. Peabody no doubt had no personal knowledge or
    understanding of what was going on. They relied on the advice of
    their architects, engineers and contractors, and in the event they
    were sadly let down, particularly by the architects. But it would
    be neither reasonable nor just, in these circumstances, to impose
    upon Lambeth a liability to indemnify Peabody against loss
    resulting from such disastrous reliance.

    The purpose for which the powers contained in paragraph 15
    of Part III of Schedule 9 have been conferred on Lambeth is not
    to safeguard building developers against economic loss resulting
    from their failure to comply with approved plans. It is in my
    opinion to safeguard the occupiers of houses built in the local
    authority's area, and also members of the public generally, against
    dangers to their health which may arise from defective drainage
    installations. The provisions are public health measures. In Anns
    v. Merton London Borough Council
    [1978] AC 728, a case
    concerned with defective foundations, Lord Wilberforce said at p.
    758, under the heading "To whom the duty is owed";

    "There is, In my opinion, no difficulty about this. A
    reasonable man in the position of the inspector must realise
    that if the foundations are covered in without adequate
    depth or strength as required by the byelaws, injury to
    safety or health may be suffered by owners or occupiers of
    the house. The duty is owed to them - not to a negligent
    building owner, the source of his own loss."

    The plaintiffs in that case were lessees under long leases which
    they had acquired from a building developer, either directly or at
    a certain remove. The damages which they were held entitled to
    recover consisted in such sums as each of them required to expend
    in order to put his house in such a state that it was no longer a
    danger to safety or health. (See per Lord Wilberforce at p. 759).
    It is important to notice that these sums were not recoverable as
    economic loss pure and simple, but as representing expenditure
    necessary to avert injury to safety or health. The passage I have
    quoted from the speech of Lord Wilberforce raises certain
    difficulties. In particular, it is difficult to see how, having regard
    to the scope of the duty held to exist, a non-resident owner could
    fail within the ambit of it, since he would not be subject to any
    possible injury to safety or health. Yet Lord Wilberforce would

    - 6 -

    appear to be saying that the duty is owed separately to owners
    and to occupiers. In fact, the plaintiffs, as long lessees, were in
    substance both owners and occupiers, and in my opinion the
    decision should be treated as restricted to that situation. Further,
    the reference to "a negligent building owner, the source of his own
    loss" to some extent begs the question whether a duty is owed to
    the owner since negligence on the part of a claimant does not
    necessarily, since the Law Reform (Contributory Negligence) Act
    1945, preclude recovery of damages against a negligent defendant,
    though it may reduce them. The question whether a building
    owner's negligence is the sole cause of his loss raises a question
    of causation, not liability. It is also to be observed that the basis
    upon which the measure of damages was arrived at would present
    difficulties in the case of a claim by one occupying upon terms
    which did not permit of his carrying out any alterations to the
    structure of the house. The solution of these difficulties is not,
    however, necessary to the determination of the instant appeal. It
    is sufficient to hold that Lambeth owed no duty to Peabody to
    activate their paragraph 15 powers, notwithstanding that they
    might reasonably have foreseen that failure to do so would result
    in economic loss to Peabody, because the purpose of avoiding such
    loss was not one of the purposes for which these powers were
    vested in them. I find myself in respectful agreement with the
    following passage in the judgment of Slade L.J. in the court below
    [1983] 3 W.L.R. 754, 767-768):

    "Can it have been the intention of the legislature, in
    conferring on a borough council power to enforce against a
    defaulting site owner requirements made by it in accordance
    with paragraph 13 of Part III of Schedule 9, to protect such
    owner against damage which he himself might suffer through
    his own failure to comply with such requirements? In my
    opinion, this question can only be answered in the negative.
    This particular power exists for the protection of other
    persons - not for that of the person in default. I say
    nothing about the case where a local authority have failed
    to make known their requirements or where they have made
    requirements of an inadequate or defective nature.
    However, I can see no justification for extending the law of
    negligence by imposing on a local authority, over and above
    their public law powers and duties under paragraphs 13 and
    15, a duty to exercise their powers of enforcement under
    paragraph 15(2), owed in private law towards a site owner,
    who, whether with or without personal negligence, disregards
    the proper requirements of the local authority, duly made
    under paragraph 13 and duly communicated to him or
    persons authorised to receive them on his behalf. The
    practical implications of giving the defaulting owner a right
    to sue the local authority for damages in such circumstances
    need consideration, but no elaboration."

    Mr. Dyson relied strongly on two recent cases decided by
    different divisions of the Court of Appeal within a week of each
    other, apparently without either division knowing of the case
    before the other. In the first of these, Acrecrest Ltd, v. W. S.
    Hattrell & Partners
    [1983] Q.B. 260, the owners of a site employed
    independent architects and contractors to build a block of flats
    and garages, which they subsequently leased out. The architects
    had prepared plans providing for foundations 3 feet 6 inches deep,

    - 7 -

    but at the owner's request revised them so as to provide for
    foundations only 3 feet deep. The local authority's building
    inspector instructed that the foundations should be 5 feet deep in
    some places and 3 feet 6 inches to 4 feet deep elsewhere. The
    nature of the site was such that it was necessary for stability that
    the foundations be 5 feet deep overall. Defects developed in
    respect of which the tenants claimed against the owners. The
    owners sued the architects for damages for negligence and breach
    of contract, and the architects joined the local authority as third
    parties, claiming contribution. The action against the architects
    was compromised, but their claim for contribution proceeded to
    trial. The trial judge held that the local authority were liable for
    breach of a duty of care owed to the owners, and assessed their
    contribution at 25 per cent. His decision was affirmed by the
    Court of Appeal. Stephenson L.J., giving the leading judgment,
    construed the passages which I have quoted from the speech of
    Lord Wilberforce in the Anns case [1978] AC 728 as intended to
    lay down that a local authority, in the exercise of its supervisory
    functions over building projects, owed a duty of care to a building
    developer to see that his property did not suffer damage, even
    though there was no question of apprehended injury to the health
    or safety of the developer. Donaldson L.J. expressed a similar
    view, as did Sir David Cairns. In my opinion they failed to
    appreciate correctly the course of Lord Wilberforce's reasoning and
    consequently misapplied the decision in Anns. In the result, the
    Acrecrest case [1983] Q.B. 260 was wrongly decided and should in
    my opinion be overruled.

    The second case to which I have referred is Dennis v.
    Charnwood Borough Council
    [1983] Q.B. 409. The facts were that
    in 1955 the plaintiffs commissioned a builder to construct a house
    for their own occupation upon a site which consisted partly of an
    infilled sand pit. Plans were submitted to the local authority
    under byelaws which corresponded in material respects with
    paragraph 13 of Part III of Schedule 9 to the Act of 1963. The
    plans snowed the foundation to consist of a concrete raft and were
    duly approved by the local authority. This was in fact an
    unsuitable foundation for the site, and many years later subsidence
    led to serious cracking of the structure. The plaintiffs sued the
    statutory successors of the local authority for damages on the
    ground of negligence in passing plans indicating an inadequate
    foundation, and judgment in their favour was given by Forbes J.
    and affirmed by the Court of Appeal (Lawton, Templeman and Fox
    L.JJ.). The argument turned principally upon whether the trial
    judge's conclusions on liability were justified on the evidence, and
    also upon the question of limitation. Templeman L.J., delivering
    the leading judgment, did not find it necessary to give any
    elaborate consideration to the question whether the local authority
    owed a duty of care to the plaintiffs, regarding the matter as
    concluded in the latter 's favour by the decision of this House in
    Anns [1978] AC 728. He said,[1983] Q.B. 409, 414-415:

    "The first question is whether the council, when they
    considered and passed the plan of the house owed any duty
    of care to Mr. Dennis. In Anns v. Merton London Borough
    Council
    [1978] AC 728 the House of Lords decided that
    under the Public Health Act 1936 local authorities owe a
    duty to give proper consideration to the question whether
    they should inspect the carrying out of any building work.

    - 8 -

    If they decide to inspect, they are under a duty to use
    reasonable care in carrying out their supervisory function of
    ensuring compliance with the building byelaws but only
    within the limits of discretion bona fide exercised as to the
    time and manner of inspection: per Lord Wilberforce at p.
    755. The duty is owed to the owner or occupier at the
    date when damage occurs as a result of a breach of duty by
    the local authority. The duty is not owed to a negligent
    building owner who is the source of his own loss: per Lord
    Wilberforce at p. 758. In my judgment, if local authorities
    are liable within the limits prescribed in the Anns case for
    negligence in connection with the discretionary inspection of
    building works, they must similarly be liable for negligence
    in failing to use reasonable care in considering and
    approving plans. There is no suggestion that Mr. and Mrs.
    Dennis, the building owners, were negligent or the source of
    their own loss. They were entitled to trust the builder and
    the council. They were entitled to claim damages against
    the builder if he was negligent. They were entitled to
    claim damages against the council if the council were
    negligent in breach of their duty to take reasonable care in
    the consideration of the plan of the house or in the exercise
    of their supervisory and discretionary power of inspection."

    The decision is in my opinion to be justified on the basis that the
    plaintiffs, as owners who were the intended occupiers of the house,
    were within the ambit of the duty of care laid down in Anns.
    They were persons injury to whose safety or health might
    necessarily be expected to occur if the foundations of the house
    were inadequate. There can be no doubt that, under the ratio
    decidendi of Anns, a remedy against the local authority would have
    been available to any subsequent occupier who had purchased the
    house. The plaintiffs were in breach of certain material provisions
    of the relevant byelaws dealing with the adequacy of foundations,
    but the fact remains that plans showing the intended foundations
    had been submitted with their authority and had been approved.
    This approval might reasonably be taken as an indication that the
    foundations were satisfatory, and considering that the plaintiffs
    themselves had no technical knowledge nor understanding of the
    position and that their own safety and health were in issue, it
    would be unreasonable and unjust to hold that the local authority
    owed them no duty. The decision does not, however, assist
    Peabody in the present case, because not only was there no
    question of injury to health or safety at issue so far as they were
    concerned, but they were proceeding to install drains with fixed
    joints in flat disregard of Lambeth's requirements.

    My Lords, for these reasons, I would dismiss the appeal.

    LORD SCARMAN

    My Lords,

    I have had the advantage of reading in draft the speech to
    be delivered by my noble and learned friend Lord Keith of Kinkel.
    I agree with it, and for the reasons he gives I would dismiss the
    appeal.

    - 9 -

    LORD BRIDGE OF HARWICH

    My Lords,

    For the reasons given in the speech of my noble and learned
    friend Lord Keith of Kinkel, with which I agree, I too would
    dismiss the appeal.

    LORD BRANDON OF OAKBROOK

    My Lords,

    I have had the advantage of reading in draft the speech
    prepared by my noble and learned friend, Lord Keith of Kinkel. I
    agree with it, and for the reasons which he gives I would dismiss
    the appeal.

    LORD TEMPLEMAN

    My Lords,

    I agree with the speech of my noble and learned friend,
    Lord Keith of Kinkel, and for the reasons he gives I too would
    dismiss the appeal.

    - 10 -


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