BUILDER’S LIABILITY FOR DEFECT ARISES UNDER NHBC AGREEMENT AND NOT IN TORT

In Robinson v P E Jones (Contractors) Ltd [2011] EWCA Civ 9, [2011] All ER (D) 111 (Jan) the Court of Appeal held that the claimant house purchaser was not entitled to bring a claim in tort against the builder of the house in respect of the cost of repairing a defect in the house. The terms of the contract between the parties was held to define the obligations which the parties had assumed to one another and there was no room for the recognition of a duty of care in tort, the effect of which would have been to impose upon the defendant a liability which was inconsistent with the contract between the parties. Further, it was held that the clauses in the contract which limited the liability of the builder to that set out in the NHBC agreement were not invalidated by the Unfair Contract Terms Act 1977.