Why the cost of the defect itself is not recoverable
The tort of negligence protects people and their property against careless harm. It does not guarantee that a building or product is as good as the buyer expected. A defect that simply makes the thing worth less, or that has to be repaired before the thing can safely be used, represents a bad bargain. The law leaves the quality of a bargain to contract, where the parties choose each other and agree the terms. If negligence covered the cost of defects, every later owner could sue the original builder or manufacturer for quality without any of the limits a contract would impose.
Murphy overruled Anns v Merton London Borough Council (1978), which had allowed such claims. The House of Lords also rejected the argument that the cost of removing a danger in the defective thing is recoverable because the thing has become dangerous. While the defect has caused no damage to anything else, the cost of dealing with it remains economic loss.
What remains recoverable
If the defect causes physical damage to other property belonging to the claimant, or causes personal injury, the claimant can recover in negligence in the ordinary way, subject to the usual requirements of duty, breach, causation and remoteness. The question to ask is therefore whether the loss consists of the defect in the thing itself or of damage to something else.
A worked example
A manufacturer carelessly makes an electric garage door, which a homeowner later buys from a private seller. The motor is defective, and the homeowner pays to replace it before anything else is damaged. That cost is a loss in the door itself, and it is not recoverable from the manufacturer in negligence.
Change the facts so that the defective door closes unexpectedly and crushes the bonnet of the homeowner's car. The car is other property physically damaged by the defect, so the cost of repairing it is recoverable in negligence, as damages for any injury would be.
The traps SQE1 questions set
- The cost of repairing or replacing the defective building or product itself is pure economic loss, even where the defect is dangerous.
- Damage the defect causes to other property, or to a person, is recoverable in negligence.
- Anns v Merton is no longer good law on this point, so an answer that relies on a general duty to build without defects is wrong.
- Other routes may exist outside negligence, and each has its own requirements. For dwellings, the Defective Premises Act 1972, s.1, gives a claim against the builder to the person who ordered the work and to every later owner. The claim is for work not done in a workmanlike manner so that the dwelling is fit for habitation, and it can cover the cost of repairs. For products, the Consumer Protection Act 1987 excludes damage to the product itself (s.5(2)), so it covers only damage to other property and personal injury. These routes do not change the rule in negligence.
A builder carelessly constructs the roof of a house, which a later owner buys. The roof begins to sag, and the owner pays to rebuild it before anything else is damaged. Can the owner recover the cost of rebuilding the roof from the builder in negligence?
Show the answer
No. The cost of rebuilding the defective roof is a loss in the building itself, which Murphy v Brentwood treats as pure economic loss that is not generally recoverable in negligence. If the roof had collapsed and damaged the owner's furniture, the cost of repairing the furniture would be recoverable. A claim under the Defective Premises Act 1972 may be available if the house is a dwelling and the claim is within time.
Sources
- Murphy v Brentwood District Council [1991] 1 AC 398
- Anns v Merton London Borough Council [1978] AC 728 (overruled)
- D & F Estates Ltd v Church Commissioners for England [1989] AC 177
- Defective Premises Act 1972, s.1
Law as at 4 October 2026.