Author: Gillian Birkby
Who pays the home owners when the wind blows the roof off and the developer goes into liquidation? The obvious answer is the insurers, assuming there is insurance cover, but when this rather dramatic event happened to some three-storey townhouses in Docklands, it raised important legal issues.
Due to very strong winds, the roof of a terrace of six houses lifted to a height of one metre and then fell back on top of the walls of the building, causing damage to each of the properties within it. The roof of the terrace was constructed as a single unit. The cause of the roof lifting was alleged to be the failure of the contractor to ensure that the roof joists in respect of each of the premises were strapped to the walls of the building, and the installation of ceiling joists into an open bed joint at one of the properties.
The homeowners had no contract with the design and build contractor, so decided to bring a claim against the contractor relying on a tortious duty, namely that, as builder and designer, the contractor owed the homeowners a duty to use reasonable skill and care to avoid causing loss or damage to “other property”.
The homeowners claimed that, even if the terrace was considered as one unit, it amounted to a “complex structure”, i.e. the roof should be regarded as a separate part of the property to the rest of the premises. Therefore, upon lifting and falling back onto the walls, the roof had caused damage to a separate part of the premises. Alternatively, they claimed that each dwelling amounted to a separate property, so that the lack of strapping to the roof joists in one of the houses caused failure of the roof over a separate property.
The judge reviewed the law in relation to a claim in negligence where there is damage to a building. He confirmed that a claimant cannot recover for the cost of repairing the negligently manufactured, designed or constructed “thing” itself. The houses were, as almost all terraces are, built as one structure. Even if each house was in separate ownership, they shared at least a common roof. The judge held that to treat the terrace as six separate units, with the roof of one unit causing damage to another unit in accordance with the complex structure theory, was quite unrealistic. In his view, to the extent that there was a defect in one part, it would affect all parts of the structure. The damage was to “the thing itself”. The builder’s duty of care in tort did not extend to damage to the building itself.
The fact that different parts of a building are used for different purposes within its overall function does not mean that the whole structure has ceased to be a single building. The structural elements in any building will form a single indivisible unit in which the different parts are essentially interdependent. It is still not easy to bring a successful claim in tort for building damage, as this case shows.
Gillian Birkby, partner, Fladgate LLP (firstname.lastname@example.org)