Section 38 Civil liability.I1
England and Wales
Subject to this section—
breach of a duty imposed by building regulations, so far as it causes damage, is actionable, except in so far as the regulations provide otherwise, and
as regards such a duty, building regulations may provide for a prescribed defence to be available in an action for breach of that duty brought by virtue of this subsection.
Subsection (1) above, and any defence provided for in regulations made by virtue of it, do not apply in the case of a breach of such a duty in connection with a building erected before the date on which that subsection comes into force unless the regulations imposing the duty apply to or in connection with the building by virtue of section 2(2) F1or 2A above or paragraph 8 of Schedule 1 to this Act.
This section does not affect the extent (if any) to which breach of—
a duty imposed by or arising in connection with this Part of this Act or any other enactment relating to building regulations, or
a duty imposed by building regulations in a case to which subsection (1) above does not apply,
is actionable, or prejudice a right of action that exists apart from the enactments relating to building regulations.
In this section, “damage” includes the death of, or injury to, any person (including any disease and any impairment of a person’s physical or mental condition).
Annotations
Textual amendments
- F1
Words in s. 38(2) inserted (16.11.2004) by Sustainable and Secure Buildings Act 2004 (c. 22), ss. 4(3), 11(4)
Commencement
- I1
S. 38 in force at 1.12.1984 for specified purposes, see s. 134(1)(a)
Notes on Part I
Modifications
- C1
Pt. 1 (ss. 1-46) restricted by Channel Tunnel Act 1987 (c. 53, SIF 102), ss. 31(1), 45, Sch. 7 Pt. VI para. 2
- C2
Pt. 1 (ss. 1-46) modified (1.4.1991) by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 60(2), Sch. 8 para. 18(1)
- C3
Pt. 1 (ss. 1-46) modified (17.7.1992) by S.I. 1992/1732, art. 4(1)
- C4
Pt. 1 (ss. 1-46) excluded (18. 12. 1996) by 1996 c. 61, s. 38, Sch. 10 para.7P
Pt. I (ss. 1-46) excluded (26.3.2001) by S.I. 2001/1149, art. 4(5) (subject to art. 1(3))
- C5
Pt. 1 (ss. 1-46) excluded (22.7.2008) by Crossrail Act 2008 (c. 18), Sch. 14 para. 8
- C6
Pt. 1 (ss. 1-46) excluded (24.9.2014) by The Thames Water Utilities Limited (Thames Tideway Tunnel) Order 2014 (S.I. 2014/2384), art. 1, Sch. 19 Pt. 1 para. 3
- C7
Pt. 1 (ss. 1-46) excluded (23.2.2017) by High Speed Rail (London - West Midlands) Act 2017 (c. 7), s. 70(1), Sch. 22 para. 1
- C8
Pt. 1 excluded (11.2.2021) by High Speed Rail (West Midlands - Crewe) Act 2021 (c. 2), s. 64(1), Sch. 22 para. 1(1)(a) (with Sch. 22 para. 1(2)(3))
- C9
Pt. 1 excluded (4.10.2024) by The National Grid (Bramford to Twinstead Reinforcement) Order 2024 (S.I. 2024/958), art. 1, Sch. 15 para. 4 (with art. 40, Sch. 14)
Notes on Notices in respect of contraventions
Textual amendments
- F1
Ss. 35B-35D and cross-heading inserted (6.4.2023 for specified purposes except in relation to W., 5.9.2023 for W. for specified purposes, 1.10.2023 in so far as not already in force except in relation to W., 1.7.2026 for W. in so far as not already in force) by Building Safety Act 2022 (c. 30), ss. 38(1), 170(4)(b)(c); S.I. 2023/362, reg. 3(1)(q); S.I. 2023/914, reg. 2(b)(v); S.I. 2023/993, reg. 2(h); S.I. 2025/1368, reg. 2(d)