Downs J did not follow Rolls-Royce. He thought that the case was different. This was because it concerned a situation in which there was no contract between the parties to the litigation, whereas in this case there was. It was also because the judge thought that the Building Code made it more appropriate to find a tortious duty of care. Accordingly, Downs J found that Hawkins' duty of care was not excluded by contract. Betterment There were also arguments about "betterment" which will be of wider relevance to the construction industry. The point was that after the contract had been entered into, the Building Code changed to require higher standards of construction. Hawkins argued that, even if its original work had been sub-standard, it should not have to pay for achieving those post-contractual higher standards, which were not part of its contractual bargain. It would otherwise be paying for the plaintiff's upgrade. The judge did not agree. He held that as a matter of principle, remedial work to achieve Building Code compliance should not be considered betterment. It was not the plaintiff's choice to carry out the additional work. The need arose from Hawkins' breach so the costs of complying with the new requirements of the Building Code should be paid for by Hawkins.