The householder recovered damages in the county court in an action against a builder for breach of a building contract to complete the works in a good and workmanlike manner. He then brought a second action upon the same contract. In the second action, he again alleged a failure to complete the works in a good and workmanlike manner but in addition pleaded that there was a failure to carry out the building works with proper materials. At first instance, the judge in the second action held that householder could not pursue a claim for defects that were obvious at the time of the first action, but that res judicata was no bar to claims in respect of further defects that were not then apparent. A contract to build a house was an entire contract. The proprietor had but one cause of action for breach of a contract to build in a proper and workmanlike manner with proper materials.
Held: The builde’s appeal succeeded
Sankey LJ said: ‘The cause of action here is ; (1) the contract to complete in a good and workmanlike manner a bungalow and (2) the breach of it – I do not think that every breach of it – every particular brick or particular room that is faulty – gives rise to a separate cause of action.’
As to Brunsden, Sankey LJ said: ‘In the present case, adopting the same analogy, it seems to be quite impossible to say that in the first month of the year the plaintiff could have brought his action for failure to complete the dining room in a proper and workmanlike manner and next month for failure to complete the drawing room and so forth.’
Judges:
Sankey LJ
Citations:
[1928] 2 KB 336, [1928] All ER 120
Jurisdiction:
England and Wales
Citing:
Applied – Brunsden v Humphrey CA 1884
The defendant had negligently caused damage to a cab driver and his vehicle in the same accident. The cab driver obtained damages for the damage to his vehicle.
Held: He was not disentitled from bringing fresh proceedings for damages for . .
Cited by:
Limited – Purser and Co (Hillingdon) Limited v Jackson and another ChD 1971
Forbes J said: ‘Mr Macgregor maintains that arbitrations are concerned with disputes and not with causes of action and he says that within a cause of action there may be many disputes and the arbitrator is only concerned with disputes. He contends . .
Cited – Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd SC 3-Jul-2013
Virgin Atlantic Airways Ltd sought to recover damages exceeding 49,000,000 pounds for the infringement of a European Patent which did not exist in the form said to have been infringed. The Technical Board of Appeal of the European Patent Office had . .
Cited – Moorjani and Others v Durban Estates Ltd and Another TCC 15-May-2019
Allegations of breach of landlords’ repairing obligations – defendants’ strike out application.
Held: ‘ the critical question is whether this second action is based on the same cause, or causes, of action, and not whether it pleads the same . .
Cited – Moorjani and Others v Durban Estates Ltd and Another TCC 15-May-2019
Allegations of breach of landlords’ repairing obligations – defendants’ strike out application.
Held: ‘ the critical question is whether this second action is based on the same cause, or causes, of action, and not whether it pleads the same . .
Lists of cited by and citing cases may be incomplete.
Contract, Litigation Practice
Updated: 22 September 2022; Ref: scu.468968