Strict liability under the Defective Premises Act 1972? Vainker v Marbank

In the case of Vainker v Marbank Construction Ltd & Ors [2024] EWGC 667 (TCC) (Vainker), the Technology and Construction Court (TCC) has recently offered useful guidance on a number of potential issues that may arise in claims under the Defective Premises Act 1972 (DPA).

Facts

The owners (the claimants) alleged there were a number of defects in the construction of a residential property and consequently brought a claim against the contractors (Marbank) and the designer architects (SCd). The claims against SCd were time-barred in both contract and tort law, so the Claimants pursued the claim under the DPA.

Three interesting points arise from this case: 

1. The definition of fitness for habitation.
2. The applicability of a net contribution clause in defence of a DPA claim.
3. Whether the DPA establishes strict liability.

Unfit for habitation

When assessing fitness for habitation, each case must be considered on its own facts.

In Vainker, the judge reiterated that Rendlesham Estates PLC and others v Barr Ltd [2014] remains the leading authority on fitness for habitation. The case provides some insightful comments that offer additional guidance when considering whether a defect or defects rendered a property fit for habitation. These are: 

• The defects must be considered as a whole and for all types of persons who might reasonably be expected to occupy them.
• It is relevant to take into account design intent.
• Aesthetic or inconvenient defects are unlikely to render a dwelling unfit for habitation.
• If the condition of the dwelling is likely to deteriorate over time to become unfit for habitation, then the dwelling may be considered unfit at the time of completion.
• It is appropriate to consider the aggregate effect of defects. However, minor or aesthetic defects should not be included.

Net contribution clause

A noteworthy additional is the court’s finding regarding the net contribution clause in SCd’s contract of appointment. SCd attempted to rely on this clause to limit their liability to the claimants. However, the judge determined that this clause violated section 6(3) of the DPA, ie rendering void any terms that sought to exclude or restrict liability under the DPA. Consequently, SCd were not able to rely on the clause. It is worth noting that the net contribution clause could still have been relied upon against the contractors (Marbank).

Strict liability

The obligation under section 1 of the Defective Premises Act 1972 (DPA) is to see that the work “…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.”

It is firmly established that this is a single composite duty. Therefore, failing to carry out work in a workmanlike or professional manner or with proper materials, will not constitute a breach unless the dwelling is also unfit for habitation.

However, there has been a growing debate over whether section 1 of the DPA imposes strict liability. The “Redress Factsheet” published by the Government in early 2022 appeared to support this position.  In particular, it commented that: “Liability under the Defective Premises Act is “strict”. This means that no fault or negligence has to be shown in a claim.” However, this factsheet was withdrawn in July 2022 after the passing of the new Building Safety Act, and the statement made has not been repeated.

Although Vainker did not tackle the issue of strict liability directly, the judgment implies that the Judge did not presume that strict liability applied when evaluating the alleged defects and work.

There were two striking examples of this.

1. When considering the merit of the inspection claim (that SCd had failed to properly inspect the balustrade at the property), the judge [at 282] tested the evidence against whether SCd should have observed the problem exercising reasonable skill and care.
2. When evaluating the defects claimed to render the property unfit for habitation, the judge examined whether SCd had exercised reasonable skill and care. This is evident [at 292] where the judge noted that: “…consideration must be given to what SCd could reasonably have been expected to observe on reasonable inspection within the scope of their services.”

In very simple terms, the judge considered that it was not as simple as saying SCd failed to observe and therefore had a strict liability under the DPA. An assessment was needed to establish whether SCd were even obliged to observe at all. That does not fit with the imposition of a strict liability test. Indeed, it is of note that against this measure, SCd was found not to have breached its duty in respect of one of the significant defects assessed.

When assessing loss at [339], the judge also commented that as one of the constituent elements of the duty in section 1 is to ensure work is done in a professional manner, damages should more naturally reflect the failure to see work done in that manner.

For now, therefore, the judgment suggests that the test to be applied under the DPA is not one of strict liability.

This article forms part of our Breaking Ground series. For more information on the series, contact Andrea Lynch.

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