Are claims under the Defective Premises Act 1972 based on strict liability?

Why should I read this?

Claims under the Defective Premises Act 1972 (the DPA) have become more popular due to the extended limitation periods offered by the Building Safety Act 2022. However, this has brought a fundamental principle into question: for DPA claims, is the contractor and/or consultant under a duty to use reasonable skill and care or a fitness for purpose obligation (i.e. a strict liability)? This is an important distinction to determine the threshold of liability; the evidential requirements; the extent of damages; and whether such claims are likely to be covered by professional indemnity insurance.

Differences between reasonable skill and care vs fitness for purpose

Typically, fitness for purpose obligations are easier to determine because they impose an absolute obligation and result in a yes/no consequence (for DPA claims this is whether a dwelling is fit for habitation).

Breach of reasonable skill and care obligations essentially requires negligence to be proven arising from a breach of duty. This is judged according to whether a person acted appropriately, often with regard to an expectation of how a particular professional would have acted in similar circumstances.

Proving a breach of the duty to exercise reasonable skill and care often requires expert evidence from another professional in the same field in order to establish negligence. Thereafter, providing the claimant can overcome the hurdles of proving causation and foreseeability of loss, when claiming damages, it is likely that such loss should (in principle) be covered by the defendant’s professional indemnity insurance, which improves the chance of recoverability. On the other hand, fitness for purpose obligations impose an absolute obligation to meet the end result, regardless of fault. Failure to meet this standard is generally easier to prove and damages can be broader, but such losses are often not covered by the defendant’s professional indemnity insurance (unless the same losses also flow from a breach of the defendant’s failure to exercise reasonable skill and care).

What does the DPA say?

Section 1 (for the provision of a dwelling) and section 2A (for work to a dwelling) both use similar wording, in that a person undertaking work “owes a duty to…see that the work is done in a workmanlike, or (as the case may be) professional manner, with professional materials and so that as regard the work the dwelling is fit for habitation when the work is completed.”

This raises a question of interpretation on whether the work being unfit for habitation is sufficient to raise a claim (i.e. based on a fitness for purpose obligation) or whether it is also necessary to establish that the work was not done in a workmanlike or professional manner (i.e. breach of the duty to exercise reasonable skill and care). In essence, are the obligations cumulative (with all needing to be established to prove liability) or in the alternative (with one default being sufficient)?

Statutory interpretation

There are several statutory interpretations that suggest that liability under the DPA is “strict” and that liability should be determined where the dwelling is unfit, notwithstanding that the work and materials were sufficient:

• it has been provided in Government guidance, in particular in a Redress Factsheet published on 5 April 2021. This guidance however was withdrawn on 25 July 2022 and in any event guidance is not generally considered to be an authority on statutory interpretation¹
• it was the intention of the Bill’s sponsor. The DPA originated as a Private Member’s Bill, which focused on providing “necessary protections against the end result” (i.e. the dwelling being unfit for habitation)
• the Law Commission proposed this intention when drafting the Bill, stating that it was necessary to safeguard against situations where the dwelling is unsuitable for its purpose notwithstanding that proper work was done with good materials.

Position adopted by the courts

At present there is no clear authority from the court to determine the fundamental question of strict liability. Instead, it is clear from various cases that a breach of duty, regarding the workmanlike and professional manner and professional materials, is not sufficient on its own to bring a claim². This was recently affirmed by J Jefford in 381 Southwark Park Road RTM v Click St Andrews³, who stated, “It is well-established that the duty owed under section 1…is a single duty to see that the outcome is that the dwelling is fit for habitation. Lack of fitness for habitation is correspondingly a necessary element of breach of that duty.”

For contractual obligations, the courts have determined that an absolute obligation can only be imposed upon a professional if this is clearly stated, so that the professional appreciates the extent of their liability⁴. The DPA imposes statutory, rather than contractual, obligations and it remains to be seen whether this test should be applied when analysing the wording in s.1 and s.2A of the DPA.

Another interesting comparison is the view of the Supreme Court in MT Hojgaard A/S v EON⁵  that a contract may impose a “double obligation”, i.e. an absolute duty to achieve a result and a duty to exercise reasonable skill and care. In such cases, the court determined that failure to achieve the result may still incur liability, even if reasonable skill and care was applied. Arguably this is analogous to the position within the DPA, however we still await a court judgment to confirm whether the position in contract should equally apply to the statutory interpretation of the DPA.

Conclusions

At present, whilst it is clear that a DPA claim requires a dwelling that is unfit for habitation, it remains unclear how this relates to the workmanlike and professional duties on the contractor/consultant and whether this limits their duty to one of reasonable skill and care. This is an interpretative issue with, at present, no clear deciding authority. Many claimants may consider it best to plead both forms of liability and exercise caution by obtaining expert evidence to cover the quality of the workmanship and design, as well as whether the dwelling is unfit for purpose. This is likely to continue until there is a definitive position decided by the courts.

Written by Gemma Irving Lees and Sarah Maylor.

Based on a talk by David Horwich at Atkin Chambers.

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Sarah Maylor and Joshua Curry.

Further reading on building safety

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[1] Boyle v SCA Packaing Ltd [2009] UKHL 37
[2] Thompson v Clive Alexander & Partners (A Firm) [1955-95] PNLR 605 and Harrison v Shepherd Homes [2011] EWHC 1811 (TCC). 
[3] [2024] EWHC 3179 (TCC)
[4] Costain Ltd V Charles Haswell and Partners Ltd [2009 EWHC 3140
[5] MT Hojgaard A/S v E.ON Climate and Renewables UK Robin Rigg East Ltd [2017] UKSC 59.