Generally, the basis for damages recovery in tort is compensatory. The claimant must show that it has suffered loss, and that it was caused by the defendant’s default.  However, if the claimant could have avoided that loss but chose not to do so, should the loss be recoverable?

This was one of the issues considered recently by the Supreme Court in URS v BDW [2025] UKSC 21. https://supremecourt.uk/cases/uksc-2023-0110 .  BDW  had employed URS as their consultant engineers in two major high-rise housing developments. Following the Grenfell tragedy in 2017, serious defects were discovered in both developments which BDW attributed to URS.  By that time all claims by the flat owners against BDW were time-barred, and also BDW had no proprietary interest in the developments. (Note the claim arose before the Building Safety Act retrospectively extended DPA time periods).

Nevertheless BDW carried out extensive and costly repairs, and then sued URS, their engineers, in tort.  URS argued in defence that as BDW had no liability to the flat owners because of limitation, the costs it had incurred were voluntary, and as such were either not in the scope of their design responsibility, or were too remote.

These preliminary issues of law went up to the Supreme Court, which distinguished previous case law, and determined that there is no such principle of “voluntariness” in English law. The situation was essentially an issue of causation, i.e. did URS’s admitted breaches cause BDW to incur these costs, despite no 3^rd party compulsion?

As the claimant was a construction company, the design defects in the developments were potentially damaging to its commercial reputation.  It was reasonable of it to carry out repairs, and foreseeable that it would have to do so.   Thus the repairs were necessitated by the defendants’ breaches, and causation was arguably established.

The Supreme Court also held that if BDW had done nothing, there was a risk that eventually one of the flat occupiers could suffer death or personal injury which would be recoverable under the Defective Premises Act. Accordingly the “voluntariness” defence would have failed, and BDW’s claim for its expenditure to protect the flat owners was legitimate even though the flat owners could not have compelled the work at the time