Anns v Merton London Borough Council [1978] AC 728

Lessees of maisonettes sued the local council after structural defects emerged due to inadequate foundations. The House of Lords established a two-stage test for determining duty of care in negligence: first examining proximity and foreseeability, then considering policy reasons against imposing such duty.

Facts

In 1962, Merton London Borough Council approved building plans for a block of maisonettes with foundations specified as ‘three feet or deeper to the approval of local authority’. The council had powers under the Public Health Act 1936 and building bylaws to inspect foundations and require corrections, though it was not obligated to do so. The builder was required to notify the council before covering the foundations.

The block was completed in 1962, and 999-year leases were granted to various lessees. In 1970, structural movements caused significant damage including cracks and sloping floors. Investigation revealed the foundations were only two feet six inches deep, not the required three feet or more. In 1972, the plaintiffs (lessees) issued writs against the builder and council, claiming damages in negligence for approving or failing to properly inspect the foundations.

At first instance, the claim failed as statute-barred since more than six years had passed since the first sale. The Court of Appeal allowed the appeal, holding that the cause of action arose when damage was discovered or ought to have been discovered.

Issues

Principal Legal Questions

The appeal raised two main issues:

• Whether the local council owed a duty of care to owners or occupiers of houses regarding inspection during the building process
• What limitation period applied to such claims against the local council

Judgment

The House of Lords unanimously decided that a duty of care existed and that the claim was not statute-barred. Lord Wilberforce delivered the leading judgment.

The Two-Stage Test

Lord Wilberforce established what became known as the ‘Anns test’ for determining duty of care:

Through the trilogy of cases in this House, Donoghue v Stevenson, Hedley Byrne & Co Ltd v Heller & Partners Ltd and Home Office v Dorset Yacht Co Ltd, 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.

Application to Public Authorities

Lord Wilberforce acknowledged that the council was exercising public law powers but confirmed that private law duties could arise alongside public law functions. The council was not under a duty to inspect, but had a duty to give proper consideration to whether it should inspect, and if it did inspect, had to exercise reasonable care. The owners and occupiers were not an indeterminate class of potential plaintiffs.

Implications

This case represented the high point of extending the neighbour principle from Donoghue v Stevenson. The broad two-stage test allowed courts to recognise new duty situations based on principle rather than precedent alone.

However, the decision was later overruled by Murphy v Brentwood DC [1991], with courts retreating to a more category-based approach to duty of care. Some academics have suggested this retreat was influenced by the conservative political climate of the time.

Despite being overruled in England, the Anns test was adopted by the Supreme Court of Canada in Kamloops (City of) v Nielsen [1984] and remains good law in Canada, where it has been applied in numerous Supreme Court decisions.

Verdict: Appeal dismissed. The House of Lords held that the local council owed a duty of care to the lessees regarding inspection of foundations, and that the plaintiffs’ claim was not statute-barred as the cause of action arose when the damage was discovered or ought to have been discovered.

Source: Anns v Merton London Borough Council [1978] AC 728