Robinson v PE Jones (Contractors) Ltd [2011] EWCA Civ 9 concerned a house built in 1991 and sold to Mr Robinson under a contract that included a clause limiting the builder's liability for defects. In 2004 defective flues were discovered. The contractual claim was long out of time. Mr Robinson argued that the builder owed him a concurrent duty of care in tort under Henderson v Merrett Syndicates Ltd [1995] 2 AC 145, so that his claim accrued on damage rather than on breach and remained alive.
The appeal failed. Jackson LJ held that a builder does not, merely by contracting to build a house, assume responsibility in the Hedley Byrne sense to the purchaser. The relationship is one of vendor and purchaser of a building, not of professional adviser and client. Absent an assumption of responsibility for advice or design, the builder's duty in tort is confined to a duty not to cause personal injury or damage to other property. The cost of putting right the building itself remains pure economic loss, recoverable only in contract, consistently with Murphy v Brentwood District Council [1991] 1 AC 398.
The court also held that, even if a concurrent duty had existed, the contractual exclusion clause would have shaped and limited it. The parties had defined the scope of the builder's responsibility in writing and the tort duty could not be used to escape that bargain.
Robinson is best read alongside Henderson rather than against it. The two decisions together produce a workable test: does the defendant's role involve the provision of skill and advice on which the claimant relies, or the supply of a physical thing to a specification? Consultants sit on the first side of the line. Pure construction sits on the second.
The difficulty arises with the hybrid roles that dominate modern procurement. A contractor that takes on design under a design-and-build appointment, a specialist subcontractor that produces its own working drawings, and a supplier that gives performance advice about its own system are all, on Robinson's analysis, capable of assuming responsibility for the advisory element even though the wider relationship is contractual supply. This is why design-and-build contractors commonly carry professional indemnity cover alongside their contract works policy, and why the interface between the two policies is where coverage disputes tend to sit.
For architects, engineers and other consultants, Robinson is a reminder that the tort duty is real but is shaped by the appointment. Three drafting points follow.
Because the tortious claim accrues later, the run-off period a practice buys should be measured against the tort clock rather than the contract clock. Section 14B of the Limitation Act 1980 sets a fifteen-year longstop for negligence claims involving latent damage, and section 135 of the Building Safety Act 2022 extended the Defective Premises Act 1972 period to 30 years for claims that had already accrued when it came into force on 28 June 2022. A six-year run-off period, once common, no longer matches the exposure profile for firms with residential work in their history.
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