Grenfell - duty of care revisited

The Grenfell Tower fire last year was a major tragedy. A lot has been written in its aftermath, and the inquiry into its causes is still underway. A single person or organisation to blame has not yet been established. Indeed, even a single cause has not been identified. It seems that there were a catalogue of failures that led to what happened.

Part of the problem appears to have been a failure of building control (though the public inquiry has not yet been completed, so blame cannot be attached to any party with certainty). It is not very clear yet whether that failure was on the part of the building control body, the supply of information to that body or with the rules themselves. However, the duty of care owed by building inspectors has changed over the years, and the current duties owed are fairly limited.

On 12 May 1977, Anns v Merton London Borough Council was decided by the House of Lords. In that case, various residents of long leases discovered that the foundations of their building were inadequate. The leases were granted in 1962, but the problem was not discovered until 1970. Therefore the 6 year limitation period for contract claims had expired, and the residents could not sue the builders. However, at the time it was possible to sue the local authority for negligence; the limitation period for negligence runs (broadly) from when you discover the defect, which in this case meant the claim was in time.

The council was therefore liable to the residents for negligent building control.

However, the law changed in 1990. I was speaking to a surveyor over the weekend about this anticipated blog post (this kind of discussion topic is why I’m never invited to dinner parties), who thought the law must have changed when approved inspectors came about in the 1980s. However, that’s not really the case. The law changed only because of very subtle changes of opinion in how the common law was interpreted, and it was all decided by House of Lords judges, not by parliament, not by the government and not by local authorities.

On 26 July 1990, the House of Lords handed down their respective judgments in Murphy v Brentwood. They decided that they were wrong in 1977 and that damage to the building itself, caused by negligent building control, was “pure economic loss” and therefore not recoverable. So the homeowners who suffered cracks in their walls, caused by defective foundations, could not sue the local authority for negligence.

Since 1990, therefore, residents have been unable to sue a local authority, or an approved inspector, for negligently authorising work in line with building regulations. Obviously there are other ways of enforcing building control, but this very specific power has been taken away from residents.

However, in Grenfell the position is very (and tragically) different to the cases of Anns v Merton LBC or Murphy v Brentwood. In those two cases, the residents suffered cracks in the walls and uneven floors. That’s obviously a bad thing for anyone having to live in a house with such problems, which can be very expensive to rectify. However, clearly in the Grenfell case the defective building caused the death of 72 residents, along with over 70 injured victims. This is not what the law would regard as “pure economic loss”.

The leading textbook on construction law (Keating) describes it as “an open question as to whether a local authority might be liable in negligence for carelessly passing defective plans or for careless inspection of building works if this causes physical damage to person or property”. We may therefore, in time, discover that the local authority in the Grenfell case did in fact have a duty of care to the residents (in tort that is – obviously most would agree that they had a moral duty). In my view, the families of those who died, along with the surviving residents, ought to win their claims.