• In the case of Anns v Merton L.B.C. [1978] A.C. 728, it was held that a local authority may be liable in negligence for its failure to inspect building foundations properly (or at all) if it can be shown that the action taken was not carried out in the bona fide exercise of the authority’s discretion and negligently.

Facts of the Case

  • On 9th February 1962, D passed building plans for a two-storey block of flats. The building was completed later that year.
  • The builders and subsequent owners of the block leased the flats. 2 original lessees remained until the present case.
  • In February 1970, structural movements began to occur, causing cracks in the wall and the floors to slope.
  • On 21st February, writs were issued against both the builders and D. C brought a claim against D for negligence in allowing the building to be constructed on foundations thinner than the plans required.
  • Alternatively, C argued that D failed to carry out the necessary inspections to a sufficient standard of care, if at all.
  • On 16th October 1975, the judge held that the claims were statute-barred since time began to run from the date of first conveyance of each property concerned. C succeeded on appeal.
  • The House of Lords granted leave to argue whether in the circumstances D was under any duty of care to C.

Issues

  • Did D owe C a duty of care in respect of the incorrect foundations used by the builders?
  • Was the claim statute-barred?

Held by the House of Lords

  • Finding for C, that D had a power to inspect building work complied with the bylaws. It needed to be shown that D failed to exercise bona fide discretion in failing to inspect and failed to exercise reasonable care to ensure compliance.
  • Where such inspections were carried out, D retained discretion as to the manner in which inspections were performed. However, since D failed to exercise bona fide discretion in this case, D was liable for negligence.
  • The actions were not statute-barred. The cause of actions started when the dangerous state of the building manifested itself.

Lord Wilberforce

  • The Public Health Act 1936 provides that every local authority should make bylaws for regulating the construction of buildings. The authority must pass plans unless they are defective or would contravene any bylaws.
  • “Most, indeed probably all, statutes relating to public authorities or public bodies, contain in them a large area of policy. The courts call this ‘discretion’ meaning that the decision is one for the authority to make, and not for the courts. Many statutes also prescribe or at least presuppose the practical execution of policy decisions: a convenient description of this is to say that in addition to the area of policy or discretion, there is an operational area. Although this distinction between the policy area and operational area is convenient, and illuminating, it is probably a distinction of degree; many ‘operational’ powers or duties have in them some element of ‘discretion.’ It can safely be said that the more ‘operational’ a power or duty may be, the easier it is to superimpose upon it a common law duty of care” [754C].
  • It would not be right to limit D’s power to a duty to avoid causing extra or additional damage beyond what must be expected. That may be correct when the act done will inherently adversely affect the interest of individuals. But many other acts can be done without causing any harm to anyone. In these cases, the duty is to take care to avoid harm to those likely to be affected.
  • The 1936 Act states that D shall be bested with this discretion and must avail themselves of their powers whenever and as often as they are of the opinion that the public interest is promoted by doing so.
  • In other words, D has a duty to properly consider the question whether they should inspect or not. Their immunity from attack, when failing to inspect, though great is not absolute. Because it is not absolute, the proposition ‘if no duty to inspect, then no duty to take care in inspection’ fails.
  • The Court of Appeal was correct in holding that the cause of action only arose when the state of building was such that there was present or imminent danger to the health or safety of those occupying it. The authority for this proposition is Sparham-Souter v Town and Country Developments [1976].

Editor’s Note

  • The main principles arising from this case have all been rejected in subsequent cases.