2-05 2-04 The Dutton case has now itself been reviewed in the House of Lords8 in Anns v.

Merton L.B.C.9 The headnote to the case concerns itself, perhaps understandably in view of the disproportionate part of the speeches directed to it, almost exclusively with the relationship between the alleged duty of care owed to future occupiers and owners of houses at common law by the defendants (who were the by-law authority under the Public Health Act 1936) on the one hand, and the statutory power or duty under which they were acting under the Act on the other, which was said to preclude the common law liability. While this part of the decision was a necessary and important hurdle which had to be cleared by the plaintiffs if they were to succeed, a proper understanding of the substantive decision will nevertheless be of crucial importance in the development of the law of negligence in the United Kingdom, and also of considerable importance in the field of limitation of action (at least while the English Limitation Acts remain in their present not very satisfactory form in cases other than personal injuries claims). It must be said, too, that the Anns speeches verge on the perfunctory in their discussion of the wider substantive question involved, so that the great importance of the case arises as much from necessary implication as from explicit statements of principle in the speeches.

In the Anns case the building in question, which was constructed in 1962, had not in the event had its foundations constructed down to the depths shown on the deposited plans. Movement started to occur in 1970, resulting in some cracking of the main walls and the usual other symptoms, such as sticking of doors and sloping of floors. The plaintiffs were all occupiers of flats or maisonettes on long leases obtained directly from the developer/ builder in 1962 or subsequently by assignment in 1967 and 1968. Since it was the limitation question which was the preliminary point at issue before the House (though by agreement the House had consented to deal with the substantive issues of law as well) the House was dealing for the latter purpose with assumed facts, as pleaded or agreed in advance of the trial of the

7. [1936] 2 K. B. 46. 8. As forecast (1977) 93 L.Q.R. 16-21. 9. [1978] A. C. 728. Noted by Keith Stanton (1977) 93 L.Q. R. 488.

ANNS V. MERTON L.B.C. action, and in the absence of any then available evidence or agreement were asked by the parties to rule on two different tactual hypotheses either there had been no inspection at all by the Council, or that there had

been a negligent inspection, and that in either case a competent inspection would have avoided the damage by ensuring that the foundations were taken down to a sufficient depth.