Court of Appeal (Civil Division) · Unanimous: Jackson LJ and Stanley Burnton LJ giving judgments, Maurice Kay LJ agreeing
Facts
PE Jones (Contractors) Ltd built a house for Mr Robinson under a written contract in the early 1990s. The contract incorporated terms of the NHBC scheme, under which the builder accepted defined obligations and liability outside those obligations was excluded. Many years later defects were discovered in the gas fire flues, which were not constructed in accordance with the relevant standards and posed a risk to safety. By the time Mr Robinson sued, any claim in contract was time-barred, so he claimed in the tort of negligence, relying on the later limitation period for latent damage.
History
The trial judge in the Technology and Construction Court dismissed the claim. Mr Robinson appealed.
Issue
Whether a building contractor owes its employer a duty of care in tort, concurrent with its contractual obligations, to protect the employer against pure economic loss caused by defects in the building; and if so whether the contract excluded it.
Held
Appeal dismissed. The contractor owed no duty of care in tort to protect the employer against the economic loss claimed, and in any event the contractual terms excluded such liability.
Ratio
- A building contractor does not, by entering into a contract to build, owe its employer a concurrent duty of care in tort to avoid causing pure economic loss, such as the cost of repairing defects in the building itself; such a duty arises only where the contractor has assumed responsibility to the employer in the sense recognised in Hedley Byrne and Henderson v Merrett, which an ordinary building contract does not without more involve.
- The tortious duty of a builder is to take reasonable care to avoid causing personal injury or damage to property other than the building itself; defects in the building which have not caused such injury or damage are pure economic loss.
The judgments
Jackson LJ (lead)
Reviewed the development of the law from Anns v Merton LBC [1978] AC 728 through D and F Estates v Church Commissioners [1989] AC 177 and Murphy v Brentwood DC [1991] 1 AC 398 to Henderson v Merrett Syndicates [1995] 2 AC 145. He held that professional persons may be found to assume responsibility to their clients so that concurrent duties arise, but that a contractor building under an ordinary contract has not assumed responsibility for economic loss in that sense; the parties had set out their bargain in the contract. He further held that the exclusion terms would have excluded any tortious duty and were reasonable under the Unfair Contract Terms Act 1977.
Stanley Burnton LJ (concurring)
Agreed, emphasising that the defect was in the thing supplied and so the loss was pure economic loss; the law of tort imposes a duty to avoid causing damage, not a duty to supply a thing free of defects, which is the province of contract. He considered there was no good reason for tort to supplement a contractual allocation of risk freely agreed between the parties.
Key reasoning
- After Murphy, the cost of repairing a defect in a building, discovered before it causes injury or damage to other property, is pure economic loss which is not ordinarily recoverable in negligence.
- Henderson v Merrett established that concurrent liability in contract and tort is possible, but liability for economic loss in tort depends on an assumption of responsibility, which arises naturally in relationships such as those of professional advisers but not simply from a contract to build.
- Where the parties have negotiated a contract that defines the obligations of the builder and excludes other liability, it would be inappropriate for tort to impose wider obligations and circumvent the agreed allocation of risk and the contractual limitation period.
Where it fits in the module
On the relationship between tort and contract, Robinson shows the limits of the concurrent liability recognised in Henderson v Merrett and the continuing influence of Murphy on recovery for defective buildings. It focuses the debate on whether tort should respect the allocation of risk in a contract and whether the distinction between professionals and contractors in relation to assumption of responsibility is principled.
Criticisms
- The distinction between professional persons, who may assume responsibility concurrently, and building contractors, who generally do not, is difficult to justify in principle when both contract to exercise skill and care.
- Treating defects that pose a danger to safety as pure economic loss may leave owners without a remedy until someone is injured, which sits uneasily with the protective purpose of negligence.
- Conversely, the decision may be defended as preventing tort being used to escape a contractual limitation period and agreed exclusions.
Written with AI (claude-opus-5.5 (Claude Code writer)) on 1 November 2026, reviewed for errors by a second model (claude-sonnet-5.5 (Claude Code checker)). Read the case itself on Find Case Law. Spotted an error? Tell us.