Building an Extension on the House of Negligence: The High Court on Builder's Liabililty in Bryan v Maloney

Abstract

A perennially litigious area of the law of negligence is that dealing with builders' liability. The recent High Court decision in Bryan v Maloney1 , in recognising builder's liability to future owners of dwellings, for economic loss caused by structural flaws, illustrates the extent to which this is potentially one of the most expansive areas of the law. This commentary focuses on the joint judgment of Mason CJ, Deane and Gaudron JJ: Toohey J delivered a separate, essentially concurring opinion, whilst Brennan J dissented strongly. After considering the judgments in some detail, we argue that this case can be seen as a continuation of a trend in appellate court treatment of negligence: the protection of the consumer interests of those private or civilian plaintiffs who could be said to be vulnerable by reason of a practical absence of adequate means of self-protection in their dealings with expert or specialist suppliers of goods or services.