Negligence, The Complex Structure Theory And Latent Damage

In the case of Broster & Ors v Galliard Docklands Ltd & Anr, [2011] EWHC 1722 (TCC), Mr Justice Akenhead had to consider a number of questions, including relating to alleged negligent design, arising from roof damage caused by high winds.

The Facts

In 1997 Galliard Docklands Ltd ("Galliard") employed East London Construction Ltd ("ECL") to design and construct a terrace of six three-storey townhouses with a common roof. The building contract was in the standard JCT Standard Form with Contractor's Design (1981 edition incorporating amendments). ECL completed these works and Galliard sold the townhouses to six individual purchasers including two of the claimants in these proceedings - the other claimants were subsequent purchasers.

On 8 January 2005, high winds caused the roof to lift up to one metre before falling back on to the top of the walls causing damage to the houses. Remedial works to the premises were carried out in spring 2007 and half of the remedial works costs were borne by the National House Builders Council.

The claimants brought proceedings for damages against Galliard and ECL alleging that the cause of the roof lifting was the failure by ECL to ensure (either by way of design or construction) that the roof joists in respect of each of the premises were strapped to the walls and the installation of the ceiling joists into an open bed joint.

The claimants pleaded that at the time of completion of the works by ECL, in circumstances whereby it had failed to strap the roof joists to the walls, a cause of action in negligence accrued to Galliard against ECL and that under Section 3 of the Latent Damage Act 1986 each claimant acquired a cause of action against ECL upon purchasing their respective properties. As part of this claim, the claimants alleged that the premises, individually and as part of the terrace, amounted to a complex structure, so that the construction of the roof should be regarded as separate property to the rest of the premises.

In the alternative, the claimants alleged that each dwelling within the premises amounted to a separate property and that to the extent to which the lack of strapping in one of the properties caused or contributed to the failure of the roof over a separate property owned by a claimant, that claimant had a cause of action in negligence against ECL in respect of that property, arising out of ECL's negligence in the construction of the other properties.

In seeking an order dismissing the...