Anns v Merton LBC [1978] AC 728

Key points 

  • Negligence carried a prima facie duty of care
  • Defective property is a form of physical damage to property that is actionable in negligence – note that this was later rejected, see Murphy v Brentwood DC [1991] 1 AC 398
  • Courts should apply a policy and operation distinction when dealing with negligence by public authorities
  • Note that all the points above have be overruled in later case law; see commentary

Facts

  • The lessees of a block of flats (Cs) found that faulty foundations had resulted in cracks in their flats
  • Cs sued Merton LBC (D) for damages for the negligent exercise of its statutory powers by approving foundations that were not deep enough and failing to inspect them properly

Held (House of Lords)

  • D was liable for negligence
  • The cracks were regarded as physical damage to property and hence actionable

Lord Wilberforce

Prima facie duty of care

  • The neighbour principle is prima facie applicable in all cases in the absence of justification for exclusion
  • The incremental approach is outdated – based on the the trilogy of cases Donoghue v Stevenson, Hedley Byrne and Home Office v Dorset Yacht, to establish a duty of care, it is not necessary to bring the facts of a situation within those of previous situations in which a duty of care has been held to have existed

Two-stage test for duty of care was established:

  1. Is there sufficient ‘proximity or neighbourhood’ between C and D such that in D’s reasonable contemplation, carelessness on his part might cause damage to C?
  2. Were there any considerations which ought to ‘negative, or to reduce or limit’ that duty?

Policy and operations distinction

  • Duty of care cannot be based on the neighbourhood principle alone or control as this would neglect the fact that the powers and duties are defined in public law
  • Where a public authority is discharging functions under public law, the imposition of a duty of care must have regard to the distinction between policy and operations
  • Statutory powers and duties contain policy areas, which the courts refer to as discretion, as well as operational areas, which involve practical execution
  • The more ‘operational’ a power or duty may be, the easier it is to superimpose upon it a common law duty of care
  • In the current case, the power to inspect the foundation was ‘heavily operational’

Commentary

  • The idea of a prima facie duty of care was rejected in Caparo v Dickman
  • In Robinson, the incremental approach was reasserted by the Supreme Court while idea of a general principle or test for negligence was disavowed
  • It was later held in Murphy v Brentwood that loss from defective property is a form of pure economic loss that is non-actionable in negligence
  • The idea of a policy and operation distinction was rejected in Barrett v Enfield