Bryan v. Maloney

In Bryan v. Maloney,1 the High Court of Australia held, by a majority,2 that the builder of a house owes duties of care in tort to subsequent purchasers with respect to the construction of the house. The case is remarkable, not only in the sense of how this substantive result accords with earlier authority but, more importantly, in the approach that the majority took to reach their findings. While the result may, as a matter of policy, be a laudable outcome, the reasoning is significant in that to reach that position the court had to overcome weighty authority to the contrary, and in the process applied authority which had previously been considered redundant. The case stands to have a major impact on the wider business community, the insurance industry in particular, and, as Brennan, J., at least noted, on practitioners struggling for some certainty and guidance in this area of the law.

Bryan was a professional builder. Between August and December 1979 he built a house in Launceston for his sister-in-law. Notwithstanding this family relationship, the court accepted that the business relationship between the parties proceeded on a normal commercial footing. Mrs Maloney was the third owner of the property, having purchased the house from the second owners in May 1986. At the time of purchasing the house, Mrs Maloney took specific steps to examine the outside walls of the house for cracks. Her evidence was to the effect that, finding no cracks, she purchased the house believing it to have been soundly constructed. However, six months after purchasing the property, cracks began to appear on the outside walls which subsequently developed until there was substantial damage to the fabric of the house. It was commonly accepted by all the judges that the cracks and subsequent damage were the result of Mr Bryan’s constructing the house in the first instance with footings which were inadequate to withstand the seasonal changes in the clay soil.

The principal judgment was delivered jointly by Mason, C.J., Deane and Gaudron, JJ.