High Court finds approved inspectors do not owe a duty of care under Defective Premises Act 1972
Claimant solicitors often assume that on projects involving the provision of a dwelling, s1(1) of the Defective Premises Act 1972 imposes a duty on approved inspectors. However, we have long argued that this is not the case, and, in the case of Herons Court –v- NHBC Building Control Services et al [2018] EWCH 3309 (TCC), the High Court has now reached the same conclusion, taking a very similar approach to our own.
Section 1(1) of the Defective Premises Act 1972 states:
A person taking on work for or in connection with the provision of a dwelling (whether the dwelling is provided by the erection or by the conversion or enlargement of a building) owes a duty:
(a) if the dwelling is provided to the order of any person, to that person; and
(b) without prejudice to paragraph (a) above, to every person who acquires an interest (whether legal or equitable) in the dwelling;
to see that the work which he takes on is done in a workmanlike or, as the case may be, professional manner, with proper materials and so that as regards that work the dwelling will be fit for habitation when completed.
To determine whether s1(1) of the 1972 Act imposes a duty on approved inspectors on projects involving the provision of a dwelling, Waksman J considered whether they take “on work for in connection with the provision of a dwelling” for the purposes of the 1972 Act.
Taking the approach of Davies J in Hadfield v Health Insurance 1987 15 FCA 487 to the interpretation of “in connection with” (who stated that these words “are subject to the context at which they are used, the words with which they are associated, and the object or purpose of the statutory provision in which they appear”) Waksman J found that s1(1) of the 1972 Act did not impose a duty on approved inspectors. In particular, he noted that:
Furthermore, Waksman J found support for his decision in obiter comments from earlier decisions of the higher courts:
Whilst these decisions were concerned with local authority inspectors rather than approved inspectors, Waksman J did not accept that the position of approved inspectors under the 1972 Act should be any different to that of local authority inspectors:
“…the expression ‘take on’ connotes ‘undertakes’. Both a local authority and an approved inspector undertake their statutory roles…The fact that one is employed by the local authority and the other may be an independent contractor cannot possibly make any difference…”
There has recently been an increasing number of claims under the 1972 Act by flat owners/tenants for allegedly defective cladding following the Grenfell Tower disaster.
Irrespective of the question of liability, such claims are now unlikely to succeed against approved inspectors, which may leave other professionals with a greater liability.
However, approved inspectors are not completely home and dry:
Author Jonathan Anslow is a partner in Keoghs’ professional and financial risks team, specialising in construction; janslow@keoghs.co.uk
Jonathan Anslow
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