Engineers unfortunate enough to have much contact with lawyers over the last few months
may have heard those lawyers uttering a strange incantation: ‘D &F Estates’. To have
a case ‘D & F-ed’ is not an ancient lawyers’ curse; it means that a claim which, 3 or 4
years ago, might have had a respectable chance of success has now been blown out of the water by the House of Lords’ decision in a case called D & F Estates v. the Church
Commissioners and Others. The title of the case (like much of the decision itself) is rather confusing because the ‘real’ defendant was Wates, the building company. D & F Estates owned a flat in a 1960s block developed by the Church Commissioners, and built by Wates. Wates had employed a domestic subcontractor to plaster the flat. The plastering had not been done correctly, and about 15 years after the flat was completed, the old plaster had to be hacked off and replaced. D & F Estates had bought the flat from the Church Commissioners, but did not pursue any claim against the Church
Commissioners, probably because it would have been statute barred. They therefore sued Wates in negligence (having no contract with them), claiming that Wates was responsible for the acts and defaults of its own domestic subcontractor. The claim failed, on the basis that the domestic subcontractor was an independent contractor, and in an action in negligence Wates could not be held responsible for the acts and defaults of an independent contractor. At the time of the decision, it was greeted with some surprise, particularly by architects, who could not understand how a main contractor could be released from responsibility for the acts and defaults of a domestic subcontractor. From a lawyer’s point of view, however, the remarkable thing about the decision was that the House of Lords went out of its way to restate and emphasise the differences between actions based on contracts and actions based on negligence, the lines between those two types of actions having become considerably
blurred over the last 15 years.