(especially for n 4) An ingenious argument by Victoria Evans (King’s College London) and Jodi Gardner (University of Auckland) suggests the possibility of a fourth distinct tort as the basis for civil claims for construction defects: the property-based common law tort of private nuisance. Despite earlier authority suggesting that the lease terms may exclude any possibility of a separate common law basis in tort for a landlord’s liability for defects, like Stonecrest Marble Ltd v Shepherds Bush Housing Association Ltd [2021] EWHC 2621 (Ch), the authors argue that, at least in English law, the tort is now broad enough to give a right of action by leaseholders in multi-unit developments against their landlord for failing to remediate potentially life-threatening hazards, as ongoing nuisances: see ‘Defective Buildings Are a Nuisance’ [2026] Oxford Journal of Legal Studies 1. 

Such an approach, though involving significant litigation risk, could put court-imposed pressure on a landlord, via a mandatory injunction, to ‘abate the nuisance’ by having remediation work done, above all in situations where the BSA 2022 protects the leaseholders against having the cost of such work passed down to them via service charges: see Table 11.1 in the book and its updates under section [11.5.2] below. For recent authority on this tort, see the update below to section [5.7.3].

(especially for the main text to n 8) The six-stage checklist in a tort claim for negligence identified by one of the judgments in Manchester Building Society v Grant Thornton was considered in a B2B claim in both negligence and breach of contract by residential developers – on such concurrent duties, see section [5.4] in the book and relevant updates below – in Darcliffe Homes Ltd v Glanville Consultants [2024] EWHC 3184 (TCC). The action was against consultants reporting on ground conditions, alleged to be at fault for not identifying the presence of chalk, leading to ground remediation costs. 

At [26], Adrian Williamson KC followed URS v BDW in the Court of Appeal, holding the checklist

primarily designed to analyse duties of care alleged to arise in novel situations which had not previously been considered by the courts, or where the type of loss claimed was unusual or stretched the usual boundaries imposed by law. It was not primarily intended to be applied by rote to well-known and much-reported standard duties of care.

The judge went on to find that the consultants were in breach of duty, but that the claimants had failed to show reliance on the ground conditions report in question. Had the defendants been found liable, the damages awarded would not have been offset by the unexpectedly high profits on sale of the homes, which did not derive from the allegedly negligent reports.

For an alternative formulation of the elements of the tort of negligence, see Deloitte & Touche LLP v Hin Leong Trading Pte [2026] SGCA 33 at [40]ff (Ang Cheng Hock JCA delivering the judgment of the court).

(especially for n 18) X v Sheriff John Brown [2024] CSIH 6 was appealed to the UK Supreme Court as X v The Lord Advocate [2025] UKSC 44. The judgment by Lords Reed and Burrows (all other judges agreeing) follows the Opinion of the Inner House, concluding that there is no employment relationship (or equivalent) between Scottish judges and the Crown, so no scope for the Crown to have vicarious liability for the allegedly delictual (tortious) acts of a member of the Scottish judiciary. The judgment also confirms the effect of the statutory background on the Crown’s liability for officeholders. It was further considered, with the preceding case law, in Burger v Risk Solutions BG [2026] EWCA Civ 804 (Newey LJ, with whom Jeremy Baker and Bean LJJ concurred).

Where statute protects employees’ rights against a former employer, on transfer of the undertaking to a new employer – as in the UK under the EU-origin TUPE Regulations 2006 (SI 2006/246) (UK), including post-Brexit – this does not make enforceable against the new employer any rights third parties may have had against the former employer as vicariously liable for the pre-transfer acts and omissions of its employees: ABC v Huntercombe (No 12) Ltd [2026] EWCA Civ 1161 (Coulson LJ, with whom Sir Launcelot Henderson and Bean LJ concurred).

For remoteness in construction defect claims, see the update below to section [5.5.2].

On contributory negligence in a tort claim for negligent misrepresentation by an estate agent on sale of a farm, see the update below to section [5.9.5].

(especially for n 30) A judge’s assessment of a claimant’s percentage share of responsibility for their own harm, applying the tests for contributory negligence, are hard to challenge on appeal, at least in English law: see Lee v Khraud [2025] EWHC 714 (KB) (Cutts J).

(especially for n 43) The ‘black hole’ may occur where (a) a building’s current owner rectifies a defect for which ‘the builder’ is factually responsible, but against whom the owner has no right of action in tort or under statute for those expenses (‘pure economic loss’); and (b) the party with a clear right of action (usually in contract, but perhaps in negligence, if a claim in contract is already ‘timed-out’) against that builder for the same defect has arguably suffered no recoverable loss, no longer owning the building.

A variation of this scenario occurred in URS v BDW: the developer BDW paid for rectification of defects in multi-unit developments which it no longer owned, seeking to recover these and other losses from the developments’ original structural engineers URS (with whom it had a contract), in negligence and under the Defective Premises Act 1972 s 1 (also arguing that BDW itself owed duties under the DPA 1972 and could claim contribution from URS for its liability on that basis). 

Following the Court of Appeal on this issue, summarised in the book, the UK Supreme Court held at [2025] UKSC 21 that BDW’s ability to sue URS for any proved breaches of its duties not to cause BDW pure economic loss was not definitively ended when BDW let go of its proprietary rights in any relevant development (by selling on the freehold), or by then choosing to pay for repairs. ‘Voluntarily’ incurring expenses might go to causation or suggest a failure to mitigate, but there was no rule of law that doing so necessarily broke the chain of causation or went beyond the scope of any duty of care. Nor was BDW’s action in paying for repairs really ‘voluntary’, since safety-focussed in the post-Grenfell context; failing to act would also have caused BDW reputational damage. It made no difference that Fraser J in the TCC had already struck out BDW’s claimed head of damages for reputational damage (not appealed): [2021] EWHC 2796 (TCC).

On URS v BDW, see also the update above to section [4.12.2] and those below to sections [5.5.2], [5.10.2], [9.7.3], [10.5.1] and [10.5.2]. Because the litigation so far concerns only preliminary questions of law, an outcome on liability will require a future trial on the merits (date not known), if the case does not settle.

(also in n 43) Appealed to the Supreme Court from Scotland is Forthwell Ltd v Pontegadea UK Ltd [2024] CSIH 38: in what circumstances can a party to a contract recover damages for a breach of that contract for losses sustained not by the contracting party itself but by its subsidiary? The parties in fact settled their dispute before the UKSC hearing – about water damage to Glasgow’s famous Rogano restaurant, closing in 2020 – but the UKSC will still determine the Scots law position on the ‘transferred loss’ (or ‘black hole’) issue.

One of the recognised routes around ‘no loss’ arguments, as explained in Darlington BC v Wiltshier Northern Ltd [1995] 1 WLR 68 (CA) at 79–81, resurfaced in an NZ assignment context in To’o v Wellington City Council [2025] NZHC 216 at [43]ff (Skelton AJ): see further the update above to section [4.14.1]. 

An assignment may commit the assignee to the form of dispute resolution agreed in the ‘parent contract’: on the range of possibilities, see section [9.2.4] in the book. These provisions (notably if deriving from a published standard form contract) may give both parties a power to refer a dispute to adjudication – in the UK, often by importing into the contract one of the statutory Schemes, as happened in Paragon Group Ltd v FK Facades Ltd [2026] EWHC 78 (TCC). Here Judge Stephen Davies confirmed the assignee’s ability (but not an obligation) to refer to adjudication. The logic of his approach to the HGCRA and the Scheme suggests that the same result may apply if the contract is silent about both assignment and adjudication, provided it otherwise fulfils the conditions making adjudication mandatorily available by statute. The case may be on its way to the Court of Appeal.

By contrast, but also in a B2B construction context, Grove Construction (London) Ltd v Bagshot Manor Ltd [2025] EWHC 591 (TCC), District Judge Baldwin interpreted the words of the assignment as transferring only benefits; further, under the ‘parent contract’ only each original party had the right to refer a dispute or difference to adjudication – and only against the other original party. So the purported adjudication, in which the assignee had been the respondent (and lost), was a nullity. 

An issue not yet explored in court relates to an assignor who was an individual able to benefit from protection under the ‘residential occupier exception’ in the HGCRA s 106 against an adjudication launched by the other party to a B2C construction contract. If the assignee was also an individual, equally fitting within the statutory formula for the exception, could the assignee still claim that protection (under the statute, rather by virtue of the assignment)? It seems possible, but no authority yet makes that clear, in part because in no case law yet has a respondent to an adjudication successfully claimed the benefit of the exception. It seems more obvious that if the assignee is a legal entity, they should not be able to claim the benefit of the exception. On the ‘residential occupier exception’ in the law of the UK, see also section [9.9] in the book and its updates below.

(especially for n 51) For other examples of uncertainty about what rights had been assigned, see McKinlay v Avellierie Ltd [2025] SAC (Civ) 6 (Sheriff Principal NA Ross); and Cape v Collis [2026] SGHC 94 (Kwek Mean Luck J) at [8]ff.

(especially for n 52) Technotrade (as Offer-Hoar v Larkstore) was considered and distinguished, in a B2B construction context, by Orchard Plaza Management Company Ltd v Balfour Beatty Regional Construction Ltd [2022] EWHC 1490 (TCC), [2022] TCLR 5 (Morris J)

On ‘entire agreement’ clauses, see also the update above to section [4.4.4].

Does an existing contractual allocation of risk (especially if including exclusions or limitations of liability) exclude the possibility of a concurrent duty of care in tort, in line with Henderson v Merrett in English law? From Singapore comes Lorinet v Helu-Trans (S) Pte Ltd [2025] SGHC 66. At [34] the judge (Lee Seiu Kin SJ) asked: ‘whether the imposition of the duty of care argued for by [the plaintiff] would upset the balance of rights and obligations negotiated between the parties, so that there exist valid policy concerns negating the imposition of that duty on [the defendants]’. 

No such relevant limitations or exclusions applying, save an overall monetary limitation of liability clause which the judge found unenforceable under the Singapore equivalent of Part I of the UK’s UCTA 1977, the judge found a duty of care in tort established, making the plaintiff’s action unaffected by being already timed out under Singapore’s limitation rules on contract actions. 

But the action, brought by the nominal plaintiff’s insurer, failed for incomplete evidence: the plaintiff could not show that the damage to the Anish Kapoor sculpture when it fell two years later was the result of the defendants’ negligence in mounting it on the wall of the plaintiff’s former flat, there being no scope for the doctrine of res ipsa loquitur, which would have led to a conclusion that the defendants were negligent.

For an example of contractual provisions which did exclude a concurrent duty in negligence, also from Singapore, see Glassberg v UBS AG, Singapore Branch [2025] SGHC(A) 13 (Woo Bih Li JAD giving the judgment of the Court). In an action for damages for (pure economic) loss caused by allegedly negligent investment advice, the key relevant contractual term was that the client ‘makes his own assessment and relies on his own judgment’ and that any advice or recommendations given to the client were without responsibility on the Bank’s part. This clause, the Court held at [23], ‘precludes a finding of the legal proximity between UBS and Mr Glassberg required to establish a duty of care’, going on to hold the relevant terms not statutorily unfair or unreasonable, largely given the plaintiff’s long career history in banking and the wide use of such clauses in the sector.

Showing the factual and legal difficulty of convincing a court that an existing contractual relationship has a more demanding duty of care in negligence added on top, especially for ‘pure economic loss’ (under-performing investments), see also Kristy Tan J in Lee Hsueh Ching v Loh Kia Hui [2025] SGHC 258. Crucially, the defendant bank’s standard terms provided that the (claimant) customers should not without more rely on investment advice given by the bank, its officers or employees and were accepting ‘any and all risks... and any losses suffered as a result of entering into any investment’. If a duty of care could have been established, the judge held that the customers did not show reliance, nor were they asserting an adequate causal link between the alleged breach and the losses claimed as damages.

In contrast to one of the key findings in Case Study 5, URS v BDW [2025] UKSC 21 is a high-profile example of a B2B situation where English (and probably also Scots) law recognises that a construction professional may owe a duty of care in tort, resting on ‘an assumption of responsibility’ and leading potentially to liability for pure economic loss, often (as in this case) in parallel with comparable duties in contract. 

At [33], the Supreme Court judges confirmed that the remoteness test for damages in such situations is the same as in contract: ‘whether the type of loss suffered was reasonably contemplated by the defendant at the time of the assumption of responsibility (ie here at the time the contract was made) as a serious possibility’. This directly echoes Fraser J at [2021] EWHC 2796 (TCC), followed by Coulson LJ in the Court of Appeal at [2023] EWCA Civ 772, 209 Con LR 24, [2023] BLR 437, [2024] KB 827 [30]ff; applied in a further B2B context in Toppan Holdings Ltd v Augusta 2008 LLP [2025] EWHC 1691 (TCC) at [60]ff.

A fire safety case brought by long leaseholders of the Celestia development in Cardiff Bay (457 flats in seven buildings, completed in 2005-2007) against Redrow as developer and continuing freeholder (with Laing O’Rourke as design-and-build third party defendant) came to a preliminary hearing immediately following URS v BDW. In Wilson v HB (SWA) Ltd [2025] EWHC 1315 (TCC), Judge Keyser KC considered at [12] that the Supreme Court had not varied or overturned the well-known authorities on remoteness in actions for breach of contract (including, as in this case, for breaches of lease covenants): Hadley v Baxendale, Victoria Laundry (Windsor) Ltd v Newman Industries and so on. The same principles appear to apply to claims under the Defective Premises Act 1972 s 1, as applied by Jefford J in Vainker v Marbank Construction Ltd at [339] – quoted in section [5.10.3] of the book as the main text to n 326. 

Judge Keyser then applied these principles to strike out most heads of damages claimed by three of the claimants, leaving intact claims for special damages for the diminution in value of each apartment; loss of rental income; and damage to health from mould and damp (all subject to quantification and proof in due course); and inconvenience and distress (general damages, also subject to proof). For further background, see Nelli Bird, ‘Redrow to Pay for Major Repairs to Block of Flats’ BBC News (15 April 2024). On Redrow, see also the update below to section [6.2.3].

On appeal by the long leaseholders, the Court of Appeal in Wilson v HB (SWA) Ltd [2025] EWCA Civ 1360 upheld Judge Keyser’s striking-out; the claim for the cost of remedial works was dropped, since the defendant developer had agreed a programme of remedial works with the claimants. At [25], Coulson LJ (with whom Popplewell and Phillips LJJ concurred) magisterially summarised the applicable principles on recoverable damages in a construction context [cases already discussed in the book are signalled with *]: 

(a) Where there is defective or incomplete construction work, a claimant is entitled to claim the amount by which the work is worth less by reason of the defects: see Hoenig v Isaacs [1952] 2 All ER 176. That is a traditional diminution in value claim.

(b) Over the last 60 years or so the courts have recognised that such diminution in value is usually best measured by reference to the reasonable cost of reinstatement works: see East Ham Borough Council v Bernard Sunley & Sons Ltd [1966] AC 406; Dodd Properties v Canterbury City Council [1980] 1 WLR 433 at 456 and *Darlington BC v Wiltshier Northern Ltd [1995] 1 WLR 68 (CA) at 79. But a traditional diminution in value claim may still be appropriate, such as where the building cannot be economically repaired (see Applegate v Moss [1971] 1 QB 406); or where any remedial works would be disproportionate (see *Ruxley Electronics v Forsyth [1996] AC 344 (HL), although on the facts of that case, there was no diminution in value either).

(c) A claim for the reasonable cost of remedial work accrues whether or not the asset in question is subsequently sold or destroyed. In The London Corporation [1935] P 70, a steamship was damaged by the defendant’s vessel. The Court of Appeal upheld Bateson J’s conclusion that the diminution in value, represented by the cost of repairs, was recoverable by the claimant, despite the fact that the steamship was in fact sold to be broken up. In similar vein, a defendant cannot take advantage of the impecuniosity of owners who could not afford to carry out the remedial works and claim that they had suffered no loss: see *Manchikalapati v Zurich Insurance PLC [2019] EWCA Civ 2163 at [83]–[89] and [96]–[111]. Both may be regarded as an “accidental circumstance which ought not to be taken into account in the way of diminution of damages”: see Greer LJ in The London Corporation at p 78.

(d) In a case where it has been agreed that the original contractor can return to carry out the remedial works, the owners cannot claim the cost of those remedial works as damages: they will never incur the cost of such works, or a liability for those costs, so they cannot recover damages by reference to them.

(e) But that does not mean that the owner will not suffer a residual diminution in value, even after the remedial works have been completed. It is common to find that, for example, flats in a block which has been the subject of extensive remedial work are worth less on the open market than flats in a block which has not been the subject of such work. This is commonly known as “blight”. Residual diminution in value is a proper head of loss in such circumstances: see Thomas v TA Phillips (Builders) Ltd (1985) 9 Con LR 72; George Fischer Holding Ltd v Multi Design Consultants Ltd (1994) 61 Con LR at [198]-[199]; and Strange and Others v Westbury Homes (Holdings) Ltd [2009] EWCA Civ 1247 at [12]-[18] ... 

(f) In addition, a claimant will normally be able to recover (subject to proof) loss of any rental income and any other special damages which are not too remote and which can be properly identified as flowing from the breaches. Special damages claims for loss of use of the property, based on the capital value of the property, have been unsuccessful: see Calabar Properties Ltd v Stitcher [1984] 1 WLR 287 and Bella Casa Ltd v Vinestone [2005] EWHC 2807 (TCC). A claim for loss of use of money was successful in the particular circumstances in Earl Terrace Properties Ltd v Nilsson Design Ltd [2004] BLR 273 at 290. 

The new Architects Code of Conduct and Practice – applicable to all architects registered with the ARB in the UK – came into effect on 1 September 2025, with guidance published on aspects of each Standard – notably about failure to provide adequate terms of engagement to clients: the most common cause of complaints about architects to the ARB.

(especially for n 145) Correction: the paragraph starting ‘Along similar lines’ appears to continue the quotation from Coulson LJ in the preceding paragraph. In fact, it is editorial text and should have been displayed as such. 

Illustrating the Ladd v Marshall tests in operation, see the Singapore cases of XCG v XCF [2025] SGHCF 62 (Choo Han Teck J) and Xiamen Tonghin Furniture Industries Co Pte Ltd v Goh Heng Tee [2026] SGHC 55 (Kristy Tan J); in relation to landlord and tenant issues in the UK Tribunal system, see Szymczak v Nafeesa Begum Ltd [2025] UKUT 151 (LC). On fresh evidence on appeal, see also the updates below to section [9.8].

(especially for n 147) Further Irish case law on liability to a secondary victim for 'nervous shock’: Lynch v Reynolds [2025] IEHC 527 (Tony O’Connor J), applying Sheehan v Bus Éireann [2020] IEHC 625.

(especially for n 157) The appeal in Pelosi v Lanarkshire HA [2026] CSIH 21 came before Lord Ericht, the tenant-pursuers continuing to rely on the ‘reasonably fit for human habitation’ statutory obligations of a residential landlord to claim damages. But the appeal failed to show errors in the Lord Ordinary’s approach to the evidence, leading to the conclusion that the tenants had not discharged the burden of proof of breach of duty: harm allegedly caused by contaminants in the soil of the development.

(especially for n 169) On the statutory duty of care of an occupier of premises for injury to a visitor in Irish law, case law requiring a risk to be unusual enough to require precautions or a warning from the occupier, see Kandaurova v Circle K Energy Group Ltd [2025] IECA 13 (Noonan J giving the judgment of the Court, overturning the trial judge’s finding of liability).

(especially for the main text to n 173) One of the consequences of the 1968 Ronan Point collapse in east London was the creation of what became Collaborative Reporting for Safer Structures (CROSS) in the UK, later also in Australia and the USA: a confidential reporting system allowing professionals working in the built environment to report on fire and structural safety issues. These are then published anonymously to share lessons learned, create positive change and improve safety. For examples of CROSS-UK reports, see the updates above to section [3.9.2] and below to sections [11.2.1], [11.2.2] and [11.5.5]. More recently, the BSR appointed CROSS to run the voluntary occurrence reporting system (VOR) for structural and fire safety until 2028. Comparable procedures exist in relation to aviation and maritime safety, eg the UK’s Confidential Human Factors Incident Reporting Programme (CHIRP). 

To the list of many deaths caused by residential building collapse or fire must now be added the Wang Fuk Court apartment complex of eight 31-storey buildings in Tai Po, a suburb near Hong Kong’s border with mainland China, built in the 1980s. It had almost 2,000 apartments and more than 4,600 residents. In November 2025, fire coinciding with renovation work on the blocks’ exterior led to 168 confirmed deaths, with many other residents injured. Among extensive coverage of how the fire unfolded is this multimedia guide in The Guardian. See below for prosecutions under way.

(especially for the main text to n 177) The Irish Government made ‘recognition payments’ to the relatives of all those who died in the Stardust fire during 2025; in February 2026 the Justice, Home affairs and Migration Minister Jim O’Callaghan announced an ex gratia payment scheme for the ‘survivor beneficiaries’ of those who died.

(especially for the main text to n 178) Another night club fire, in the Swiss resort town of Crans-Montana (Valais) on New Year’s Eve 2026, caused 41 deaths and many other injuries.

(especially for n 180) On the Damages (Scotland) Act 2011, see also Veale v Scottish Power UK Plc [2025] UKSC 45.

On Large Panel Systems in public sector housing in the UK and Ronan Point, see further Pete Apps and Hannah Brack, ‘The LPS Files: Hidden Documents Shed New Light on the UK’s First Building Safety Crisis’ Inside Housing (1 September 2025); in the private sector, see also the update below to section [11.4.1].

(especially for the main text to n 185) In May 2026, the Metropolitan Police confirmed that it has ‘strong evidence’ on which it hopes the Crown Prosecution Service will bring criminal charges (including corporate manslaughter, gross negligence manslaughter, fraud, and health and safety offences) against 77 companies and individuals in relation to the deaths and injuries at Grenfell Tower. Jury trials, if appropriate, are unlikely to start before 2028; jurors will be able to view a purpose-built replica of the tower before, during and after the renovation. See further Vikram Dodd and Jessica Murray, ‘Police to Seek Criminal Charges against 77 Companies and People over Grenfell Fire’ The Guardian (19 May 2026). 

An August 2026 report from Leela Jadhav, commissioned by non-profit US/UK thinktank Common Wealth, argues for increasing the criminal penalties for corporate wrongdoing, also a punitive damages regime. Unpunished and Undeterred: Corporate Accountability After Grenfell specifically focusses on Arconic Inc, the US-based multinational which manufactured cladding found by the GTI to be ‘the primary cause’ of the fire at Grenfell Tower. The company, now owned by private equity giant Apollo Global Management, paid out more in settlements with its shareholders as a result of negative post-Grenfell publicity than with the families of those in the Tower (the Abdel-Kader litigation, reported in the book); and most of those payments were covered by insurance.

By contrast, in Hong Kong in June 2026 (less than 9 months after the Wang Fuk Court fire) the directors of the construction contractor and the consultant firm involved in the renovation at the time of the fire, as well as an inspector, were accused of manslaughter along with their companies. Seven individuals in total, who played different roles in the estate’s renovation, were also charged with defrauding, laundering money and tax evasion: see AFP, ‘Hong Kong Files Manslaughter Charges against Seven People and Two Firms in Deadly Apartment Fires’ The Guardian (11 June 2026).

(especially for the main text to n 187ff) For possible reform to the mode of trial in England & Wales of construction-related criminal offences, see the update above to section [3.5.1]. The BSR is starting (Summer 2026) to threaten criminal proceedings against those who are Accountable Persons or Principal Accountable Persons for occupied but not yet registered HRBs: on Building Assessment Certificates, see the update above to section [3.4.12].

As noted, private nuisance is beyond the scope of the book, but recent apex court decisions explain and potentially expand its potential for application in construction contexts: notably Hunt Leather Pty Ltd v Transport for NSW [2025] HCA 53, in relation to claims by business owners affected by delays in the construction of the Sydney Light Rail project in the 2010s. Here the Court allowed a class action by those owners to proceed. Three of the five Justices subscribed to this definition of actionable situations:

In broad terms, the principles of private nuisance balance a plaintiff's right to land with the liberties of a defendant to use other land. This balance is struck by imposing liability for a substantial interference with a plaintiff's right where the interference is with ordinary enjoyment of land if: (i) a defendant uses their land for a purpose that is not common and ordinary; or (ii) the defendant's use of land does not reasonably minimise the extent of the substantial interference with the plaintiff's ordinary enjoyment of land. In either circumstance, a defendant will have a defence of statutory authority if Parliament has authorised the defendant's uncommon use of land or failure reasonably to minimise the substantial interference, as the case may be.

Gordon and Edelman JJ at [57] and Beech-Jones at [260] agreed with that test, while Gageler CJ and Jagot J in separate judgments preferred essentially the minority’s characterisation in the UK Supreme Court decision in Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4. This case is central in arguments for a potentially more prominent role for this tort as a remedy for construction defects; see the update above to section [5.2]. Further discussion of the principles in Australian law comes from Hunter Water Corporation v The Owners of Strata Plan 16460 [2026] NSWCA 184 (McHugh JA, Ward P agreeing and Leeming JA agreeing with additional observations).

In Nanos v Rossengas [2026] VCC 127, a case was unsuccessfully argued in private nuisance involving alleged damage to a neighbour’s house in suburban Melbourne from a shifting wall. On the test in Hunt Leather, Burchell J observed at [513]:

[T]he inquiry in establishing a claim of nuisance is whether the interference was substantial and unreasonable, having regard to its character and the ordinary expectations of the locality. That question does not turn on any ‘unreasonableness’ in [the neighbours' use of their house] … but instead on whether the interference experienced at [the house where the wall moved], viewed objectively, exceeds what the law regards as the acceptable ‘give and take’ between neighbours.

In English law, the Court of Appeal in Thomas v Nicholas [2026] EWCA Civ 847 considered claims in nuisance (heavily reliant on Fearn in the UKSC) and negligence (a further claim of harassment was also in the frame) for injury to the claimants’ breeding of falcons. This had been caused by noise and visual disturbances from the defendants’ adjoining land, including construction work, scaffolding operations and the placement of a digger near the boundary during the birds’ breeding season. By a majority (Moylan and Nugee LJJ), liability in nuisance was not made out, as the claimants’ use of their land was ‘particular and uncommon’, rather than ‘ordinary’; but a different majority (Moylan and Whipple LJJ)) upheld the trial judge’s award of damages in negligence. This divergence between the tests for liability (hence outcomes) in nuisance and negligence may form the basis of a final appeal to the Supreme Court.

There is the linked but distinct basis of tort liability for escapes of dangerous substances from land causing damage to neighbouring land: the principle in Rylands v Fletcher from the Exchequer Chamber (1866) LR 1 Ex 265 (E&W) (Blackburn J). This has obvious potential relevance to materials stored or used in construction which could pose a risk if they escaped. The precise conditions for (strict) liability under this principle, and its relation to the broader law of private nuisance, have long been unclear or contested, but were recently reviewed and restated for English law (and the law of the Bahamas) in Rubis Bahamas Ltd v Russell [2026] UKPC 9, discussed by Marco Cappelletti in a forthcoming issue of the Modern Law Review. 

(especially for n 229) A distinctive feature of the latest apex court approach to duty of care questions in E&W is a starting point of equality between public and private defendants. Lord Reed in Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4 said at [32]ff: 

At common law, public authorities are generally subject to the same liabilities in tort as private individuals and bodies… Accordingly, if conduct would be tortious if committed by a private person or body, it is generally equally tortious if committed by a public authority... That general principle is subject to the possibility that the common law or statute may provide otherwise, for example by authorising the conduct in question… It follows that public authorities are generally under a duty of care to avoid causing actionable harm in situations where a duty of care would arise under ordinary principles of the law of negligence, unless the law provides otherwise.

The Irish Supreme Court relied on this approach in Barlow, at the same time accepting that public sector cases may raise distinct issues of their own: see the update below to section [5.14.2].

‘Would not have gone ahead with the transaction’: an example of what is increasingly labelled a ‘counterfactual’: what a claimant alleges they would have done (or not done), had they not been victim of the defendant’s alleged negligence. The claimant must persuade the court – on the usual balance of probabilities test – of this hypothetical version of events. The result will determine the court’s approach to what types of loss or other harm are recoverable – as in Large v Hart – then its quantification in damages. As here, such counterfactuals typically play a central role in claims for professional negligence: see also the update below to section [10.12].

(especially for n 267) On SAAMCO, see the update below to section [11.8.4]; the critical comments of the Singapore Court of Appeal in Deloitte & Touche LLP v Hin Leong Trading Pte [2026] SGCA 33 at [63]; and Routhan v PGG Wrightson Real Estate Ltd [2025] NZSC 68. For this second appeal in Routhan, the negligence of the estate agents in misrepresenting the farm’s milk yield, inducing the plaintiffs to buy the farm, was already established; the remaining issue was the right measure and quantification of damages in tort for ‘pure economic loss’. The already successful claim for misleading and deceptive conduct under the Fair Trading Act 1986 (NZ) s 9 was not part of the appeal, the parties accepting that the measure of damages would be the same as in tort. 

In Routhan, a majority (Glazebrook, Kós and Miller JJ) found the negligent estate agents liable for only some of the heads of damages claimed: the amount the buyers of the farm overpaid at the start because the agents exaggerated the farm’s productivity, plus the extra post-purchase costs incurred in trying to achieve milk production equivalent to that promised. The dissenting minority (Winkelmann CJ and Ellen France J) would have disallowed all the post-purchase losses claimed, as not attributable to the agents’ negligence. This divergence leaves the status in NZ law of above to section [5.9.5] and the English case law following it open to further debate.

The first instance judge and Court of Appeal agreed that the plaintiff buyers in Routhan were entitled to rely on the milk production figures produced by the defendant estate agents; the Supreme Court judges all agreed that there was no scope for reducing, for the plaintiffs’ alleged contributory negligence, any of the heads of damage in the end awarded. Routhan in the CA and NZSC became relevant again in relation to damages under the FTA 1986 (NZ): see Rahal v Bhargav [2026] NZCA 176, discussed in the update below to section [6.4].

On the liability of valuers in tort and contract in English law, see Bratt v Jones [2025] EWCA Civ 562, where the judgment of the court (Sir Geoffrey Vos MR, Jonathan Baker and Snowden LJJ) included at [5]: 

[W]hilst a valuation outside the acceptable bracket is an indication that something may have gone wrong, a claim in negligence or breach of contract against a valuer cannot succeed unless the court is satisfied that the valuer has failed to exercise due and proper professional skill, care and diligence in undertaking the valuation.

In reaching this conclusion, upholding the judgment below, the court relied on a summary of the relevant principles by Eder J in Capita Alternative Fund Services (Guernsey) v Drivers Jonas [2011] EWHC 2336 (Comm) at [145], as well as SAAMCO in the House of Lords: see the updates above to section [5.9.5] and below to section [11.8.4]. 

Bratt confirmed that the Bolam test for liability of a professional person continues in force in English law (see section [2.2.3] and its n 35 in the book): has the defendant acted in accordance with practices regarded as acceptable by a respectable body of opinion in that profession? Showing that the valuer’s figures are outside a permissible margin of error for a non-negligent valuer will answer this key question in the negative.

On one of the key terms in the DPA 1972 s 1, see Sheriar Khan and Nicholas Zeolla, ‘What Qualifies as a ‘Dwelling’ under the Defective Premises Act 1972?’ SCL (UK) Paper 274 (May 2026).

The TCC (Joanna Smith J) has confirmed that an adjudicator under Part II of the HGCRA 1996 (UK) has power to determine a claim under the DPA 1972 s 1 (presumably under the new s 2A as well), in parallel with one under a qualifying construction contract: BDW Trading Ltd v Ardmore Construction Ltd [2024] EWHC 3235 (TCC). This involves applying to statutory adjudication Lord Hoffmann’s views in Fiona Trust (Premium Nafta Products Ltd v Fili Shipping Company Ltd [2007] UKHL 40) at [5]-[13], outlining English law’s approach (widely followed) to arbitration clauses. 

In URS v BDW at [2025] UKSC 21 the Supreme Court confirmed at [126]ff the Court of Appeal view (as summarised in the book): a consultants’ firm under contract to a developer (performing construction services on the construction of dwellings ‘to the order’ of such a developer) could owe its client the same statutory duties under the Defective Premises Act 1972 (E&W) s 1 as the developer owed to dwelling owners (including long leaseholders or short-term tenants). So the DPA s 1 protects not only individual dwelling owners (or equivalent); such a developer could look to its consultants, under the statute or at common law, for a contribution towards its own liability to dwelling owners under the same DPA 1972 s 1.

(especially for the main text to n 306) Recent case law seems to confirm that there is no liability under either s 1 or the new s 2A unless unfitness for habitation can be shown, though the Law Commission may have intended a ‘threefold duty’, each independently leading to liability (see n 319 in the book). As Jefford J said in 381 Southwark Park Road RTM Co Ltd v Click St Andrews Ltd [2024] EWHC 3179 (TCC) at [27]:

It is well-established that the duty owed under section 1, which is in the same terms [as s 2A], is a single duty to see that the outcome is that the dwelling is fit for habitation. Lack of fitness for habitation is correspondingly a necessary element of breach of that duty.

Liability under either s 1 or 2A seems not to require separate proof of fault, if failure to reach the defined objective standard(s) of build quality can be shown. 

(especially for nn 301 and 308) Ardmore Construction Ltd, with post-Grenfell claims against it from several developers including Barratts (as BDW), took on no new business after 2021 and entered administration the day before an adjudicator made an damages award of £14.9m against it – for both breach of contract and under the DPA 1972 s 1 – relating to a Portsmouth housing development where it had been design-and-build main contractor for developer Crest Nicholson. In June 2026, all the construction-related Ardmore companies entered administration, allegedly triggered by anticipatory pre-trial Building Liability Orders made by the TCC under the BSA 2022 ss 130-131 in Crest Nicolson Regeneration Ltd v Ardmore Construction Ltd [2026] EWHC 789 (TCC). A further judgment refused both a stay of execution and permission to appeal: Crest Nicholson Regeneration Ltd v Ardmore Construction Ltd [2026] EWHC 1089 (TCC). Constable J held that it was just and equitable to impose liability on a joint and several basis on companies associated with Ardmore Construction: for the adjudication award; and for Ardmore Construction’s potential future liabilities under the DPA 1972 s 1 or arising from the BSA’s definition of a ‘building safety risk’. The Ardmore defendants are likely to attempt an appeal. When a construction company with multiple projects becomes insolvent, it often costs 90% or more of its assets to identify and recover these, eventually leaving only 10% available to creditors.

(also for n 308) On the different stages in the 381 Southwark Park Road case (St Andrew’s House), including a Building Liability Order made by Jefford J in the TCC against a group holding company of the actual developer, see also David Sawtell, ‘Building Liability Orders under the Building Safety Act 2022: St Andrews House’. A BLO can also be requested by a party liable for building defects attempting to pass part or all of this liability to a third party, via a claim for contribution – discussed in more detail in section [9.7.3] and its updates below. 

An eloquent illustration of the new BSA rights of action is Mullaley & Co Ltd v STO Ltd [2026] EWHC 1552 (TCC). The claimant Mulalley, design and build contractor of a new block of homes in the early 2000s for a housing association, accepted liability to its employer for non-compliant cladding supplied by a British subsidiary of a German company (the product was ‘inherently defective’ under the BSA 2022 s 149, said Pepperall J). The subsidiary was now in liquidation; its German parent failed to defend Mulalley’s claim against it for a BLO under the BSA 2022 s 130, so judgment was entered against it by default. The TCC then had only to decide the quantum of the damages payable by the German company, starting with the cost Mulalley incurred to remediate the defects attributable to the defendant's cladding – more than £2m, not challenged as unreasonable. Applying the ‘just and equitable’ test of the Civil Liability (Contribution) Act 1978, the judge awarded Mulalley 87.5% of this remediation cost.

No court or tribunal decisions appear yet to concern the BSA 2022 s148; on sources of information about BSA-related case law in general, see the update below to section [11.5]. On possible Law Commission review of these liability rules, see the update below to section [5.10.5].

Potentially also relevant here is the BSA 2022 s 84 (England only): in relation to occupied buildings at least 18m or seven storeys high it places a duty on ‘accountable persons’ (defined in s 72) to prevent building safety risks materialising in relation to the part of the building for which they are responsible – defined to include anyone with a legal estate (freehold or leasehold) in any part of the ‘common parts’. ‘The regulator’ – initially the BSR, but see the update above to section [3.4.9] – has a duty to enforce the part of the BSA including s 84, but it is not clear to whom (else) this duty is owed.

(especially for the main text to n 338) For an extended definition of ‘producer’ under the 1985 Directive, see Ford Italia v ZP (case C-157/23) (CJEU). 

Regulations under the Product Regulation and Metrology Act 2025 (UK) could lead to reforms in UK law matching the changes in the 2024 EU Product Liability Directive: on differences between the current UK and EU regimes, see this article by Scots lawyers Paola Sproul and Mark Gibson (Digby Brown). On product regulation, see also the update above to section [3.4.13].

In November 2025, the Law Commission (E&W) announced a review of the law on product liability, in collaboration with the Department for Business and Trade (now DBSIT). Centrally, this will examine Part 1 of the Consumer Protection Act 1987, in the light of changed EU law, but also (perhaps) the specific construction products rules imposing liability in the BSA 2022, summarised in section [5.10.4]. The review’s detailed terms of reference can be found here.

In November 2025, the NSW Public Works and Accountability Committee published its Review into the Design and Building Practitioners Act 2020 and the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 and related draft government bills. This provides very useful background information about the NSW reforms in the wake of the Building Confidence report. Overall, as made clear in its introduction and its recommendations, the Review was hampered by not having access to the NSW Government’s draft Bills intended to replace the state’s current building legislation, including the DBPA and Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (NSW).

Notably, the Committee made no substantive recommendations in relation to the duty of care in s 37 of the DBPA, though it noted various concerns raised by stakeholders as to aspects of its operation requiring clarification ([2.52]-[2.62]). For the outcome of this consultation, via the duty being folded into the Building (Approvals and Practitioners) Act 2026 (NSW), see the update to section [3.6.1] above. 

In the long running ‘leaky building’ litigation against Grimshaw & Co deriving from original construction defects in ‘Spencer on Byron’ (n 441 in the book), the NZ Supreme Court refused to consider overturning the Court of Appeal’s order staying execution of the damages award against the law firm: Body Corporate 207624 v Grimshaw & Co [2024] NZSC 87. The outcome of the substantive appeal against the first instance finding of liability and award of damages is not yet known.

(especially for n 428) In August 2024, the NZSC gave leave for a second appeal in Tasman DC v Buchanan, on the duty of care issue: [2024] NZSC 103.

(especially for n 442) For the latest stage in the ‘Gore Street’ NZ litigation (Body Corporate 366567 v Auckland Council), see the update below to section [11.10].

In August 2025, the Minister for Building and Construction, Hon Chris Penk MP (shortly before losing his Ministerial post), announced a plan to reform the common law ‘joint and several’ liability principles in NZ law in relation to construction:

We are replacing joint and several liability with proportionate liability. Councils and ratepayers will no longer be left carrying the entire cost of defective work when others are responsible. Each party will only be accountable for the share of work they did. We’re also looking at safeguards such as professional indemnity insurance and home warranties to ensure building owners are protected.

The detailed legislative implementation of these apparently simple ideas – now included in the 90+ clauses of the Building Amendment Bill 2026 – will determine the impact, and potential success, of the reform. Proportionate liability is to be inserted into Part 5 of the Building Act 2004 (NZ) via new sub-Parts 2A-2C. Many questions remain unanswered, as noted by Rosemary Killip from Building Networks (NZ) on LinkedIn (August 2026): 

Will councils reduce inspections and oversight? Will insurance and professional indemnity costs increase, and if so, who will ultimately bear those costs? Will developers favour businesses with robust quality assurance systems and strong third-party verification, making it harder for those without them to compete? Will risk simply be pushed further down the contracting chain to subcontractors? Perhaps the biggest question of all is: Will anyone actually be better off, or will the risks simply be redistributed rather than reduced? 

Courts, arbitrators and adjudicators will newly have to define an individual party’s ‘just and equitable’ share of liability for construction defects for which there are concurrent wrongdoers: will this add a new layer of litigation risk? 

The NZ Law Commission’s 2014 report on Liability of Multiple Defendants has had little relevance to the proposals now brought forward, though it discussed all the issues in the context of ‘the leaky building crisis’, making proposals for limited reform, including capping the liability of territorial authorities: the book summarises these in sections [5.13.3] and [9.7.3]. Australia’s individual states already offer a range of statutory models to choose between (or avoid), as well as variously named mandatory home warranty regimes, subject to reform in at least Victoria and NSW: see further the update below to section [7.5.1].

The NZ reform, designed primarily to reduce the impact on territorial authorities as ‘last persons standing’ for building defects, is linked to making PI cover mandatory for many categories of parties contributing to construction, better ensuring their ability to be serious defendants in claims by building owners; and making insurance-based warranties available to most new home buyers.

The book’s section [7.5.1] records doubts whether the NZ insurance industry would have been capable of offering new home warranties universally, had the Law Commission’s modest proposals requiring such products to be offered to residential construction consumers been enacted. However, the NZ proposals now before Parliament in the Building Amendment Bill revive and expand the idea: an approved form of home warranty insurance will become mandatory on defined categories of new residential builds and alterations costing NZ$100,000 or more, with a 1-year defect period and a 10-year structural warranty period. 

The capacity of existing providers, and the NZ insurance industry in general, to take on this new business is unclear, as well as its impact on SME builders. Carl Taylor on LinkedIn (August 2026): 

If solid, capable builders can’t qualify for warranty products – not because of poor workmanship, but due to tight financial models or limited insurer appetite — the industry risks losing hundreds of small and medium operators from residential work altogether. Fewer builders. Less competition. Higher costs for Kiwi homeowners. 

The disappearance of private sector insurers for home warranties in most Australian states suggests that the NZ Government may in the end become ‘insurer of last resort’ for any new forms of construction insurance. The present coalition would hardly welcome this outcome; the Bill therefore empowers the Governor-General (on the recommendation of the Minister for Building and Construction) to temporarily disapply some or all home warranty and professional indemnity insurance requirements where there is, or is likely to be, a material impact on the availability or affordability of these products (for example, due to major market disruption or insurer withdrawal), and a resulting risk to building sector continuity or housing delivery. On the current products, see the update below to section [7.5.1].

Changes to the building control (‘consenting’) system are also included in the Building Amendment Bill – all with the aim of encouraging more construction to take place at greater speed. Further changes flagged in June 2026 could include creating a separate Building Consent Authority concerned with large commercial buildings, Territorial Authorities retaining their existing role for all other projects; and requiring councils to accept producer statements - professional documents from qualified experts supporting a consent application – as meaning that the work complies with the Building Code. The Bill also proposes changes to the Licensed Building Practitioners (LBP) scheme, including increasing maximum disciplinary fines from NZ$10,000 to NZ$20,000 and extending maximum suspension periods from 12 to 24 months.

Under what conditions may public authorities in Ireland exercising statutory functions owe a duty of care in negligence to those foreseeably suffering harm (often including or comprising economic loss) as a result? The Supreme Court reviewed the existing law in depth in Barlow v Minister for Communications [2025] IESC 14, Murray J giving judgment on behalf of the five-judge court. 

At [137] the judgment identified eight factors that may differentiate a claim against a public authority from one against a private undertaking, going on at [138]ff to trace the intertwined evolution of case law in England and Ireland – notably Caparo, as applied in Glencar (n 480 in the book) and later Irish cases – trying to define the test for a ‘duty of care’, integrating this with the separate strand of liability for pure economic loss following Hedley Byrne (and the role, as in that landmark case, of a possible disclaimer). 

Barlow concluded at [154]: 

Proximity, foreseeability, and the just and reasonable inquiry remain a correct and helpful recitation of the elements of a duty of care. In new and difficult cases, each of these usefully describe the features of the inquiry, but where the court looks is in the decided cases and what it is looking for are guiding principles and analogous facts by reference to which the court can decide whether there is sufficient proximity and sufficient foreseeability of loss to impose liability in negligence. 

The judgment added at [155] that the first two limbs of the inquiry were of ‘limited practical use as a “test”’: the first reference point should be whether existing binding precedent mandates the conclusion that a duty of care is owed in the circumstances. But ‘just and reasonable’ remains relevant in the inquiry, in contrast to its modest status in the now outmoded Anns two-stage test.

The appeal concerned the State’s possible liability in negligence for causing the collapse of the bottom-dredging mussel industry, principally by (unlawfully) permitting Northern Irish operators to compete in Irish waters. All the plaintiffs’ other legal grounds were definitively struck out by the Court of Appeal at [2022] IECA 179. The surviving ground was summarised by Murray J at [158]:

[T]he defendants implicitly promised the plaintiffs that if they embarked upon the investments they did, the defendants would inter alia take reasonable care in the management of the mussel seed resource and process of allocation so that the plaintiffs would not be financially worse off than they would have been if they had never made those investments in the first place. 

The Supreme Court held that the plaintiffs should be permitted to make their case on this amended basis in the High Court, but only for investment losses (yet to be proved, together with causation, which individual plaintiffs would have to show). To claim loss of profits as well would rest on the defendants’ failure to confer a benefit – beyond the scope of any duty they could be said to have undertaken. But what was the impact of the statutory context, as in Siney and Ward (n 480), in Irish law? At [198], the judgment quotes and follows Lord Reed in Poole (n 89) at [64], including: 

[P]ublic authorities can come under a common law duty to protect from harm in circumstances where the principles applicable to private individuals or bodies would impose such a duty, as for example where the authority has … assumed a responsibility to protect the claimant from harm, unless the imposition of such a duty would be inconsistent with the relevant legislation. 

The statutory context may also define the range of choices reasonably open to the public body, hence assist in determining whether this body has acted negligently (‘standard of care’): [218]. If these tests are satisfied, ‘public law illegality’ is not also necessary for liability in tort: [206]ff.

For a further extract from the judgment, see the update below to section [5.17.2]; for a similarly unsuccessful attempt in Scotland by the public sector defendants to strike out a claim for damages for commercial losses based in part on ‘assumption of responsibility’ and the defendant Ministers’ negligence, see the update below to section [5.15.2]. 

(The first line of p 350) Correction: a typographical error has turned Junior Books into Junior Booksi.

On the potential liability in quasi-delict of Scottish public authorities for economic loss, see Biffa Waste Services Ltd v The Scottish Ministers [2025] SCOH 9, the whole claim was rejected by Lord Sandison at [2026] SCOH 3. 

On the criteria for a duty of care owed by an ambulance service (yet another public sector defendant) in relation to its direct liability for a system permitting inappropriate physical touching of a patient (as well as vicarious liability for the employee who did so), see NM v Henderson [2025] CSIH 22 (Lady Wise), following Supreme Court authorities like Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB (n 18) and Robinson v Chief Constable of West Yorkshire Police (n 229, but also section [5.8.4] and its update above), as well (of course) as the ‘neighbour principle’ from the House of Lords (Scotland) in Donoghue v Stevenson: section [5.7.1].

The idea that the tort liability of public authorities may be shaped by different criteria than apply to private sector defendants gains eloquent support from Barlow v Minister for Communications [2025] IESC 14 – see the update above to section [5.14.2]. Murray J outlines the special features which may make a public context different at [2]:

[A]ny impression that [the] ... elements of carelessness, proximity, foreseeability of loss and actuality of damage will, when combined, in and of themselves generate liability in private law for losses caused by the negligence of State defendants has to be set against broader issues of principle and policy which are in play when it is sought to make the State accountable in damages for injury sustained as a result of alleged negligence arising from acts or omissions undertaken on foot of statutory functions. Sometimes, decisions said to have been made without due regard to their impact upon a particular claimant are reached with a view to balancing the demands of competing policies or, for that matter, conflicting interests, and it thus cannot be said that the State body has breached an identifiable ‘standard of care’ as this is understood in the law of negligence. Often it can be said that a particular power or function is peculiarly governmental and without an analogue in private relations, so that it is in principle wrong to superimpose the general law of negligence on the exercise of that power. In many cases, a claim in negligence in these circumstances involves a complaint not about the infliction of a loss, but instead arises from the failure to confer a benefit – a distinction which invariably complicates the analysis of any asserted liability in the law of negligence. It will happen in some cases that the very nature of the governmental activity in play will be such that the losses are purely economic, with the attendant restrictions on liability arising from the general law of negligence. Moreover, when a defendant has been acting under the umbrella of a statutory provision, it may be right to consider whether the legislator intended that persons injured by the manner in which that provision was operated or applied could sue to recover damages. And, of course, statutory powers are regularly conferred to advance a general public interest, not to protect a discrete category of persons, so that it might be said that the law should in some situations enable broader issues of policy to trump the right of a particular plaintiff to recoup what would otherwise be categorised as a negligently inflicted loss.