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Last edited 02 Sep 2021

Murphy v Brentwood District Council

The decision in Murphy was delivered on 26 July 1990; it was widely known that in argument before the House of Lords, the local authority had asked the House of Lords to depart from their previous decision in Anns v. Merton London Borough Council - the House of Lords can overrule its previous decisions by reason of the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234. Their Lordships, in some detailed judgments, reviewed the state of the law as it had developed since 1932 in relation to negligence, not only in England and Wales but also in the Commonwealth; they gave consideration to some American tort cases as well as looking at their own previous and recent decision in D&F Estates Limited and Others v Church Commissioners for England and others (D&F). Lord Keith in Murphy, having expressly approved a passage in a case in the High Court of Australia, Council of the Shire of Sutherland v. Heyman, which declined to follows Anns, said this:

‘In my opinion, there can be no doubt that Anns has for long been widely regarded as an unsatisfactory decision. In relation to the scope of the duty owed by a local authority it proceeded upon what must, with due respect to its source, be regarded as a somewhat superficial examination of principle and there has been extreme difficulty, highlighted most recently by the speeches in D. & F. Estates, in ascertaining upon exactly what basis of principle it did proceed. I think it must now be recognised that it did not proceed on any basis of principle at all, but constituted a remarkable example of judicial legislation. It has engendered a vast spate of litigation, and each of the cases in the field which have reached this House has been distinguished. Others have been distinguished in the Court of Appeal. The result has been to keep the effect of the decision within reasonable bounds, but that has been achieved only by applying strictly the words of Lord Wilberforce and by refusing to accept the logical implications of the decision itself. These logical implications show that the case properly considered had potentiality for collision with long established principles regarding liability and the tort of negligence for economic loss. There can be no doubt that to depart from the decision would re-establish a degree of certainty in this field of law which it has done a remarkable amount to upset’

Having then noted that the Anns decision had stood for some 13 years and that the House of Lords should be cautious in overruling previous decisions of theirs, he said:

'My Lords, I would hold that Anns was wrongly decided as regards the scope of any private law duty of care resting upon local authorities in relation to their function of taking steps to secure compliance with building by-laws or regulations and should be departed from. It follows that Button v. Bognor Regis UDC should be overruled, as should all cases subsequent to Anns which were decided in reliance on it’

The effect of this decision is therefore to substantially remove a cause of action in negligence which had been relied upon by tenants, subsequent owners and occupiers for a considerable period of time to enable them to recover damages in respect of negligent design and construction. Collateral warranties, to create a contractual relationship to fill this gap, are now regarded as being an essential matter as an adjunct to the development of commercial property. However, it may be that the Murphy case has put greater importance on to the decision of Hedley Byrne & Co Ltd v. Heller & Partners Limited; it may also be that Junior Books Ltd v Veitchi Co Ltd, which was regarded in Murphy as being an application of the Hedley Byrne principle, has been given something of a boost, notwithstanding the fact that in a great many recent cases, Junior Books has been heavily criticised. That criticism was to be found, for example, in D.&F. where Lord Bridge said of Junior Books:

'The consensus of judicial opinion, with which I concur, seems to be that the decision of the majority is so far dependent upon the unique, albeit non-contractual relationship between the pursuer and the defender in that case and the unique scope of the duty of care owed by the defender to the pursuer arising from that relationship that the decision cannot be regarded as laying down any principle of general application in the law of tort or delict.'

With respect to their Lordships, it is very hard for those involved in the workings of the construction industry to understand how the relationship between an employer and a sub-contractor is 'unique' or that the scope of the duty of care in that case could reasonably have been based on that unique relationship. There really can hardly be a more common relationship in the construction industry than that between an employer and a sub-contractor, nominated or otherwise. However, these issues, and in particular the concept of reliance, require further consideration as a result or the Murphy decision.