Jenson and another v Faux

Contractor — Negligence – Defective premises – Appellant contractor carrying out building works for vendor of dwelling-house – Respondent purchasers suing contractor for damage caused by defective work under Defective Premises Act 1972 – Appellant failing to obtain summary judgment on basis that 1972 Act not applicable – Whether works constituting “provision of a dwelling” – Whether identity of refurbished extended property “wholly different from the old” dwelling – Appeal allowedThe respondents were the freeholders of a residential property that they had purchased from V in 2007. In 2003, V had engaged the appellant to project manage extensive works to the property. The appellant did not carry out the work but “took on work for or in connection” with the property within the meaning of the Defective Premises Act 1972. At the time of the purchase, the property comprised a basement, which had been converted out of a coal cellar, a ground floor, a first floor and a loft.The respondents claimed to have suffered loss as a result of damage caused by flooding to the basement. They brought proceedings against the appellant (with whom they had no contract) pursuant to the Defective Premises Act 1972. The appellant applied for summary judgment, arguing that section 1 of the 1972 Act applied to only the provision of a new dwelling. On the facts, the property was the same dwelling before and after the works and the appellant did not therefore provide a dwelling for the purpose of owing the duties specified in the 1972 Act. The judge held that the question of whether the appellant had provided a dwelling was a question of fact and degree and that it cold not be summarily determined because the identity of the new dwelling differed from that of the old dwelling. The appellant appealed.Held: The appeal was allowed. Cases on the relevant part of section 1 of the 1972 Act were not common. In Saigol v Cranley Mansions unreported 6 July 1995, the Court of Appeal held that section 1 applied to the provision of a new dwelling. However, unknown to the Court of Appeal in Saigol, Mr Recorder Rupert Jackson QC had reached the same conclusion in Jacobs v Morton (1994) 72 BLR 92. Those authorities had escaped the attention of the Court of Appeal in Bayoumi v Protim Services Ltd (1998) 30 HLR 785 and the editors of Clerk & Lindsell, Torts (20th ed) 2010, which stated, in para 8–130, that the section 1 duty was owed “in respect of both new construction and improvements”. However, it was common ground that the court was bound by Saigol. Accordingly, the question was whether it could be argued that the identity of the refurbished and extended dwelling was “wholly different from the old” dwelling. The loft and cellar had been altered to create more space than before, but the ground and first floors were approximately the same and had the same use as before. Even if a new floor had been added, it could not be said that a “new dwelling” had been provided. The extent and cost of the works would not be decisive. In some cases, a small amount of work might create a separate one-floor dwelling that would thus fall within section 1 of the 1972 Act; but extensive works to a house or dwelling would not make it a dwelling whose identity was “wholly different” from before. A judge could not, on the evidence available at trial, conclude that the appellant had provided a new dwelling.Daniel Crowley (instructed by Trowers & Hamlins) appeared for the appellant; Graeme Sampson (instructed by Lyons Davidson, of Bristol) appeared for the respondents.Eileen O’Grady, barrister