ABSTRACT
The Judicial Council [sic] of the Privy Council reviewed all the aforementioned authorities and upheld the decision of the courts of New Zealand and held inter alia: ‘(I) that since the common law adapted itself to the differing circumstances of the countries in which it had taken root, the Court of Appeal of New Zealand ought not to be deflected from developing the common law of New Zealand by the consideration that the House of Lords had not regarded an identical development as appropriate in the English setting; that the decision whether to hold a local authority liable for the negligence of a building inspector had been the subject of a marked divergence of view among other common law jurisdictions, being based in part on policy considerations, and as such was especially unsuited for the imposition of a single monolithic solution; and that, accordingly, the decision of the New Zealand courts to develop the common law on the basis that community standards and expectations demanded the imposition of a duty on local authorities to take reasonable care during their inspection of new dwellings, which could not be said to have been reached by faulty reasoning or to have been based on a misconception, would be upheld.’ At p 376E Lord Lloyd of Barwich stated: ‘In the present case the judges in the New Zealand Court of Appeal were consciously departing from English case law on the ground that conditions in New Zealand are different’, and at p 378C the following: ‘Their Lordships cite these judgments in other common law jurisdictions not to cast any doubt on Murphy’s case (1991) 1 A.C. 398, but rather to illustrate the point that in this branch of the law more than one view is possible; there is no single correct answer.’ It appears therefore the Privy Council followed the older decision of Anns case rather than the recent House, of Lords in Murphy’s case. What is of significance however is the fact that the Privy Council encouraged and endorsed the development of the common law in the commonwealth jurisdictions as the respective countries have expanded it appropriately to suit local standard, expectations and demands. I also dismiss the appeal.
