Builders missives Risk of Garden subsidence Builders liability for remedial work
Builders' missives; collapsed garden owner’s claim relevant
Gray v. Welsh
Court of Session, Inner House, First Division : 5th February 2008 (For Outer House decision see below)
A developer sold a house and any garden ground pertaining thereto to a married couple. At the time the house had not yet been built and the garden to be made up. Before the conclusion of missives the couple had met, discussed and agreed in writing with a person ("M") appearing to be a representative of the developer, certain variations to the house and garden, including its layout. The house was built. The garden was formed by the developer from made ground to a certain depth. The couple took entry. Bounding the north of the plot was the River Clyde. The gardens of neighbouring houses eroded and partially collapsed into the river. The developer did some remedial work. The couple sued the developer for compensation being the cost of preventative measures, based both on breach of the missives and common law negligence.
The couple claimed that the developer had breached an implied term in the missives that the garden ground would be built to reasonable workmanlike standards and free from such defects as would render it as unsafe or unsuitable for occupation as a domestic dwelling. They did not specify what that standard was other than that the made ground in the garden was not to “conventional engineering specifications”. They were also unable to specify the conclusion of any contract of agency between the person with whom they had dealt and the developer. The couple also claimed that the missives were as varied by the agreement with M.
The couple also claimed that the developer was irrespective of the missives for breach of its duty of reasonable care.
Before the Outer House the developer's attempt to have the action dismissed was unsuccessful. He appealed, claiming (1) that the developer had not guaranteed the quality of the garden or its suitability, the couple had not specified any specification of the garden ground that had been breached by the developer, and that there could on no view have been a breach of the missives; and (2) that the builder's duty of reasonable care did not relate to what was in effect a claim by the couple for purely economic loss, their garden not having been damaged in any way.
The First Division decided that (1) it could be said without the leading of evidence that the couple would fail in their claim either as a breach of the missives or as a breach of the duty of reasonable care and the appeal was refused;
(2) In particular given that at the hearing before them the couple's Counsel stated that the breach of missives complaint was that the garden did not follow "any" conventional engineering specification, the developer was being given notice of the breach of missives complained of.
Comment:
These hearings were debates, that is to say hearings on assumed facts put forward by the couple in support of their claim. Claims for breach of duty of reasonable care causing pure economic loss have in the past frequently been dealt with on the basis of assumed facts put forward by claimants. The advantage is that time and cost is saved in having to have evidence led which may be entirely irrelevant. It is difficult to see why the court did not take this approach.
It is also difficult to see why the pure economic loss was not dismissed. There appears not even to have been any claim of a negligent misrepresentation which is a characteristic of such "pure economic loss" claims.
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