Negligence claims fail–Actions by houseowners against local authority, company specialising in the construction of concrete foundations, and a firm of consulting engineers, dismissed–Foundations for houses constructed on land from which trees had been removed–Problems of clay swelling after removal–After trees had been cut down the clay absorbed water drawn in from rain and other sources, became swollen and heaved upwards anything built on top of it–Houses built with provision against subsidence, but not against heave–Large cracks appeared in the houses and structural damage resulted–Evidence of the then contemporary state of professional knowledge of ‘long-term recovery heave’–Judge’s review of expert opinions including specialist textbooks–Judge also received a number of authorities and gave rulings on points of law, including the following–(1) A local authority in passing or rejecting plans and in carrying out inspections owed a duty of care to future owners and occupiers to avoid danger to health and safety–(2) A breach of building bye-laws did not in itself give rise to liability–(3) The burden of proving that a claim is statute-barred rests on the defendant once the plaintiff has established a prima facie case of damage occurring during the six years before issue of writ–(4) The cause of action accrues to the original owner; a successor in title cannot claim unless he is also an assignee of the right of action–(5) The failure of a purchaser to obtain a structural survey before purchase could, depending on the circumstances, constitute contributory negligence–In the end, largely because of the general lack of professional appreciation (excluding a few specialists) in 1965 of the dangers from long-term heave, the judge found none of the defendants liable for negligence–Actions dismissed
These were
actions by two separate plaintiffs, Mrs Perry, in respect of 161 Slade Road,
Holland-on-Sea, Essex, and Mr and Mrs Thurbon, in respect of 163 Slade Road.
The actions, originally for breach of statutory duty, negligence and nuisance
(but the nuisance claim was abandoned) were against (1) Tendring District
Council (as successor to Clacton UDC), (2) Rok-Crete Units Co Ltd, and (3) C W
Glover & Partners, consulting engineers.
Alan Fletcher
QC and Anthony Speaight (instructed by Roy Bowler, of Colchester) appeared on
behalf of the plaintiffs in both actions; Adrian Cooper (instructed by Barlow,
Lyde & Gilbert) appeared on behalf of Tendring District Council, the first
defendants; John Loyd QC and Christopher Gibson (instructed by Smith Morton
& Long, of Halstead) represented Rok-Crete Units Co Ltd, the second
defendants; Robert M Owen (instructed by Russell Jones & Walker)
represented C W Glover & Partners, the third defendants.
Giving
judgment, JUDGE NEWEY said: This case concerns two semi-detached houses, 161
and 163 Slade Road, Holland-on-Sea, Essex. Each has its entrance at its side,
opening on to a hall, in which there is a staircase leading to the first floor.
At the front of each house are a kitchen, in which there is a hard fuel stove,
and a garage. At the back is a living-room with a fireplace. On the first floor
are three bedrooms and a combined bathroom and lavatory. Above them is a loft,
beneath a pitched roof. There is a chimney at the side of the house, to serve
kitchen and living-room, and the garage projects in front of the front wall as
a single-storey extension. Each house has a small garden at front and back and
a path at the side. Drains lead via manholes in the paths to a sewer in the
road.
Nos 161 and
163 are on the north side of Slade Road. To the east of 163 is unbuilt-upon
land, equivalent to two house plots and largely overgrown by bushes, and beyond
that are two pairs of semi-detached houses, 169 to 173 at right angles to
Nansen Road. To the west of 161 is a pair of semi-detached houses, 157 and 159.
All the pairs of semi-detached houses are substantially the same as 161 and
163. Beyond 157 and 159 is a small gap in development, followed by houses and
bungalows.
Behind 161 and
163 is land owned by the Tendring District Council (whom I will refer to as
‘Tendring’) on which there is a large oak tree and the remains of a willow and
bushes, falling to a river known as Picker’s Ditch. The south side of Slade
Road is fully developed with dwellings and beyond it are others facing on to
estate roads for about half a mile to the sea.
Claims and
defences
Today 161 and
163 are in very bad conditions, and Mrs Perry, as trustee of 161 for herself
and her husband, and Mr and Mrs Thurbon, as joint owners of 163, have brought
actions, which I am trying at the same time. Mr and Mrs Thurbon’s writ was
issued on August 29 1979 and Mrs Perry’s on January 7 1981. The actions are
both against (1) Tendring as successors to Clacton Urban District Council
(‘Clacton’), the local authority empowered to make and to administer building
bye-laws under sections 61 to 71 of the Public Health Act 1936, for
Holland-on-Sea in 1965, when the houses were built; (2) against Rok-Crete Units
Co Ltd (‘Rok-Crete’), a local company incorporated in 1933, who from the 1950s
made reinforced concrete foundations and who had constructed the foundations of
the houses; and (3) against C W Glover & Partners, consulting engineers,
who had offices in London, Reading and Norwich and undertook a wide range of work,
including some very large projects, and who by their employed architect, Mr W A
Knight BSc (Eng) DIC AMI, structural engineer, designed the foundations. The
allegations against all defendants were of breaches of statutory duty,
negligence and nuisance.
The defendants
denied the allegations against them, Tendring and Glovers relied upon the
Limitation Act 1939 and all pleaded against Mr and Mrs Thurbon that they had no
cause of action, since none had been assigned to them, and contributory
negligence in purchasing 163 without having had a structural survey of it.
During the
course of the trial Mr Alan Fletcher for the plaintiffs abandoned the
allegation of nuisance against all defendants. Also during the trial the
parties agreed that if Mrs Perry and Mr and Mrs Thurbon were to be wholly
successful, they should recover respectively £20,300 for special and general
damages and interest. The agreement was based partly upon prices obtained on
sales of similar properties in similar conditions in the neighbourhood.
The case
lasted considerably longer than had been anticipated and was argued very
thoroughly. Mr Loyd for Rok-Crete, but speaking on behalf of all the
defendants, said that, while not a test case so far as Holland-on-Sea is
concerned, questions arise in it which are likely to occur in many cases at
present pending. I have in fact several in my own list.
I will first
summarise the evidence, then deal as best I can with the many questions of law
which have been raised and finally give my findings of fact and apply to them
the law as I have found it.
Evidence
of events
A copy of an
aerial photograph taken in June 1960 and produced by Dr A G Weeks, a consulting
civil, structural and geotechnical engineer called on behalf of the plaintiffs,
shows that there were then trees growing on parts of the sites of 157-163. The
trees varied in height between 25 and 36 ft. Leaf coverage extended over the
northern half of 157 and 159, the south-east tip of 159, the northern corner
and southern half of 161 and all except the north-west corner of 163. A plan
attached to a deed of release relating to land between what are now 157 and 173
and dated May 5 1965 showed a track sweeping across the sites of 157 and 159
and the rear of 161 and 163 to reach a caravan park north of 169 to 173. A plan
attached to a conveyance of the same land made on May 12 1965 showed Slade Road
ending about opposite to what is now the gap between 163 and 169.
Dr Weeks
produced three sections prepared by him by extrapolation of information derived
from trial pits and boreholes made under his supervision. One section was of
the west side of 157, one of the east side of 159 and one of the east side of
163. Disregarding imported material, the sections all showed layers of
materials gradually sloping downwards towards the north. Except for the
southern three-fifths of the 157 section, all showed first alluvial silt, then
alluvial sand and gravel, afterwards ‘head’, that is to say disturbed clay
containing flints, and finally London clay. In the southern part of 157 the top
layer was first head and then, further to the north, alluvial sand and silt.
The thickness of the layers varied, but everywhere London clay was reached at
depths between about 3 ft and 6 ft.
According to
Mr Bareham, managing director of Rok-Crete, who has lived in the area all his
life, Holland-on-Sea from Picker’s Ditch to the south was formerly covered with
grass and bushes; it was developed in the 1950s and 1960s.
On June 14
1964 Clacton gave outline planning permission for development on land which
would become the sites of 157 to 173 to a Mr Foreman, of Kirby-le-Sokes
Developments Ltd, although the land was then owned by Brook Farm Caravan Park
Ltd. The permission may have included permission to extend Slade Road, but the
best copy of it available is so poor it is not possible to tell. Possibly
notwithstanding the conveyance plan, Slade Road had already been extended to
Nansen Road. When the public sewers were laid I do not know.
On July 1 1964
Clacton wrote to Mr Foreman complaining that bricks had been delivered to what
they described as his land, reminding him that the land was crossed by a public
footpath and informing him of the procedure to be followed to obtain the
stopping up or diversion of such a footpath.
Mr Cooper for
Tendring submitted that I should infer from the presence of the bricks that the
trees had been cleared, but I do not think that I can draw that inference. I do
not know what quantity of bricks were delivered or where they were put.
Presumably they were placed near to the footpath, but I am not clear where that
was. It may have been where possibly it is today, namely, across the
unbuilt-upon land between 163 and 169; a position which links reasonably well
with a path to the south of Slade Road shown on the conveyance plan and on an
Ordnance Survey map revised in 1967. There is no evidence that there were ever
trees between 163 and 169 and the absence of any might have been a reason for
depositing bricks there.
Slade Road was
undoubtedly extended so as to link with Nansen Road at some time and it must
also have been adopted by Clacton. Mr Fletcher suggested that the trees on 157
to 163 were probably cleared at the time when the road was made up. That may
have been so, but there was no evidence about it.
On January 30
1965 Coote & Coote Ltd (‘Coote’), a small building company, who have since
gone into liquidation, wrote to Clacton stating that they were in the process
of buying what they also called Mr Foreman’s land. On February 5 1965 Mr
Leonard Keeble, architect, submitted on behalf of Coote an application for
detailed planning permission for five pairs of semi-detached houses, supported
by plans showing elevational treatment and location. Slade Road was shown as
already extended. Detailed permission was granted on March 19 1965.
In February or
early March 1965 one of the directors of Coote telephoned Mr Bareham and
inquired whether his company would provide pile and beam foundations for houses
in Slade Road. Rok-Crete were then averaging about 20 piling contracts a year
and had undertaken work for Coote since the late 1950s. Mr Bareham said that
Rok-Crete would be interested and, in accordance with what had become their
custom, met the director on site, who showed him where Coote wished to build.
Mr Bareham
described the land as he remembered it, but stressed more than once that he was
having to rely upon recollections of 19 years ago. He said that there was
tufted grass with blackberry bushes and some, not very large, hawthorn. There
were no trees, nor signs that there had been any recently, such as large holes
in the ground. Mr Bareham was, as he said, ‘pretty sure’ that there was a large
hedge on the northern boundary and some trees beyond it.
Mr Bareham was
concerned that there should be grass, because that would enable a wheeled
machine to be used for piling rather than a tracked one. Each type of machine
had to be hired, with its operator, from a company in Surrey and a wheeled one
would be cheaper to transport than a tracked one. At the time, Mr Bareham did
not consider it important whether any trees had been removed; if he had done
so, he said that he could easily have found out. He expressed the opinion that
if there had been trees the state of the grass indicated that they must have
been removed two to three years before.
Mr Bareham
next telephoned Mr Knight at Glovers’ London office and asked him to prepare
information on the basis of which Rok-Crete could submit an estimate to Coote.
Mr Bareham explained that this was in accordance with Rok-Crete’s invariable
practice as they never designed foundations themselves. For that reason
Rok-Crete did not have any need for textbooks dealing with foundations.
About two to
three weeks later Mr Knight visited Holland-on-Sea, when Mr Bareham took him to
the site and then left him to investigate it, aided by a gang of men and
equipment which may have included a hand auger and compression testing machine.
Mr Bareham must also have provided Mr Knight with copies of Mr Keeble’s
drawings, given to him by Coote.
Mr Knight gave
evidence that he had previously investigated 20 to 30 sites for Rok-Crete. He
relied upon Mr Bareham, as a local man, to inform him of any peculiarities of
the site, such as filled pits, old ponds, stream courses, old buildings or what
he described as any ‘old major forest growths’. He said that there was an
‘understanding’ between them to that effect.
Mr Knight did
not remember the land clearly, but had a vague recollection that there were
trees bounding it. He thought that if there had been trees or tree stumps on
the land, he would probably have consulted Mr Cracknell, who was the structural
engineering partner of Glovers.
Mr Knight said
that for 10 houses he would probably have taken six to eight borings. He could
not remember whether he had found tree roots in the boreholes, but in fact he
must have done so, since Mr Weeks found roots in boreholes taken by him in 1977
and 1981. Mr Knight said that he would have inferred from the presence of roots
that there had been trees on the site, but he could not have learnt from them
when the trees were removed. He said that if he had found substantial roots or
a substantial number of roots, he would probably have asked Mr Bareham about
trees.
Mr Knight had
studied foundations at Imperial College, and in 1965 he was familiar with
London clay, having designed many foundations in it. He did not know whether he
had seen Building Research Station Digest No 3, ‘House Foundations in
Shrinkable Clay’, of 1949, but he had read British Standard Code of Practice
101, ‘Foundations and Structures for Non-Industrial Buildings of not more
than four storeys’, of 1963. He was sure that he had not heard of Dr M J
Tomlinson’s book, Foundation Design and Construction, first edition published
on January 14 1964, as he first heard of it during the trial.
After Mr
Knight had completed his investigation of the land, which he thought would have
taken the better part of a day, he returned to London and wrote notes, which he
sent to Glovers’ Reading office for them to prepare the information required by
Rok-Crete.
On March 16
1965 Coote wrote to Rok-Crete asking for their estimate as soon as possible. On
the following day Mr Keeble wrote to Clacton submitting a building application
in respect of the proposed houses, accompanied by a plan which, among other
things, showed foundations for each pair of houses. The foundations shown
consisted of reinforced concrete beams beneath external walls and 21
piles at equal distances one from another. The foundation plan bore a note
‘Foundations to be carried out to suit site conditions and to the approval of
the local authorities’.
On March 18
1965 Rok-Crete, who had received information from Reading, wrote to Coote
quoting for ‘carrying out site investigation, preparation of engineer’s design
and working drawings for short bore pile foundations’. On March 23 1965 Coote
accepted Rok-Crete’s quotation and on March 25 1965 Rok-Crete both instructed
Glovers to prepare the necessary drawings and informed Coote that they had done
so.
Mr Knight then
carried out further work, and on April 7 1965 Glovers’ Reading office sent to
Rok-Crete their drawing giving details of piles and beams for pairs of houses,
and also bar-bending schedules.
Glovers’ plan
provided for 23 piles beneath beams under weight-bearing walls. The piles were
without reinforcement and might be as short as 4 ft. A general note stated that
‘the pile penetrations given in the table indicate penetration depths into good
clay’, but ‘good clay’ was not defined. Mr Knight said that ‘good clay’ meant
clay of firm to stiff quality and that seems to have been understood by
Rok-Crete. Beams were to be reinforced, but there were to be no steel
connections between piles and beams.
On April 9
1965 Rok-Crete sent a copy of Glovers’ drawing to Coote, who did not pass it to
Clacton. Soon afterwards Rok-Crete started work forming foundations in
accordance with Glovers’ design without having received building bye-law
consent.
The work was
under the control of Mr Greenleaf, Rok-Crete’s contracts manager, who spent
part of each day supervising it. He said that by the time he arrived on the
land any bushes and brambles had been stripped and that there was not much
grass left, although he was still able to use a wheeled piling machine. He did
not remember seeing any tree roots.
Mr Greenleaf
departed from Glovers’ design to the extent that he caused the foundations to
be stepped to allow for the slope of the ground. He said that that was not
unusual. He did not remember any problems occurring or having to consult Mr
Knight.
Mr Greenleaf
did not remember piles being cast too low and having to be topped up with
further concrete. However, Dr Weeks, Mr Akroyd of Thomas Akroyd, consulting
engineers, called by Tendring, Dr Chandler, who teaches soil mechanics and
foundation engineering at Imperial College, called by Rok-Crete, and Mr Malcolm
of Hurst Pierce & Malcolm, chartered civil and structural engineers, called
by Glovers, on the basis of their respective investigations agreed that that is
what must have happened. Dr Weeks, Mr Akroyd and Mr Malcolm each said that if
clean concrete were applied directly to clean concrete adhesion should have
been achieved, even in the absence of reinforcement or scabbling, but there
could be no absolute certainty.
Mr Greenleaf
remembered an inspection of the work by Mr Clarke, a building inspector, whom
he had known on other sites. Mr Clarke did not have Mr Keeble’s or any plans of
foundations with him, but Rok-Crete’s employees produced Glovers’ plan to him.
In a report by
Mr Malcolm there are references to statements made by Mr Clarke and by a Mr
Huxtable, another building inspector employed by Clacton, but neither they nor
any other witnesses of fact were called by Tendring. There was no evidence, therefore,
of whether Clacton’s building control staff did or did not know that there had
been trees on the land, or that, if there had been some, that was of
significance when deciding whether houses should be built on it. There must
have been officers who knew the Slade Road area, and it is hardly conceivable
that Clacton did not have copies of building research digests and codes of
practice.
Plainly
Clacton did not object to Rok-Crete starting work without bye-law consent
having been granted. Mr Clarke’s records of visits to 157 and 159 and to 161
and 163 on April 21 1965 read simply–‘Foundations pile and beam by Rok-Crete’.
On April 26 1965 Clacton passed Mr Keeble’s plan for purposes of building
bye-laws and on April 30 1965 they gave notice that the plans had been passed.
Towards the
end of April 1965 Mr and Mrs Perry were considering buying a house. At an
estate agent’s suggestion Mr Perry visited Slade Road. The visit was to Mr
Perry an important one, and he believes that he has a clear recollection of it.
He saw that the walls of 157 and 159 were up to 6 to 8 feet, that the
foundations of 161 and 163 had been laid, that the land had been stripped of
vegetation and was without topsoil, that a JCB was levelling the ground at the
back of the houses and that on the north-east side of 163 were three large tree
stumps with roots hanging from them. He thought that two of the stumps could
have been picked up at the same time by the JCB but that the third would have
had to have been taken separately. Mr Perry took particular notice of the
largest stump, which was very dirty and which could, he thought, have been
lying about for some time.
Mr Perry again
visited in May 1965 by which time the houses had reached first-floor level. He
and Mrs Perry decided that they would buy 161. Top soil was laid in June 1965.
Coote had become owners of all the land by the conveyance of May 12 1965. Mr
and Mrs Perry and their children were allowed to go into occupation of 161 on
August 27 1965 and the house was conveyed to them soon afterwards. Nos 157, 159
and 163 were sold at about the same time.
No 161 had
been painted throughout and in the first six to eight months hair cracks
appeared which Coote filled. In about 1967 Mr Perry papered every room, using
heavy wallpapers. In 1972 he repainted woodwork. The Perrys were delighted with
their house. There were no signs of anything being wrong with it. Family
snapshots taken from time to time both inside and outside the house do not show
any signs of cracks.
The Perrys
were not on close terms with the families who lived in 157 and 159. Mr Perry
saw work being done to the front of 157 and was told by its owner, Mr Allan,
that its foundations had been affected by an underground stream. In fact in
1969 defects had appeared in 157 and complaint had been made to Rok-Crete. Mr
Knight, who had by then left Glovers and was in practice on his own account,
was asked to inspect. Mr Knight considered that the south-east corner of the
house was subject to subsidence, and in 1970 Rok-Crete underpinned it.
In October and
November 1965 the Building Research Establishment had issued its Digests 63
and 64, which dealt expressly with problems created by clay swelling after
removal of trees. That Mr Knight knew of these Digests and heeded them is shown
by a letter which he wrote on January 13 1967, advising that, because of the
presence of stumps of recently felled trees on the site of a proposed bungalow,
it should be built with special precautions against swelling. What proved to be
his mis-diagnosis in respect of 157 may have been due to the ground beneath its
south-east corner being different from that under the remainder of it and the
other houses.
In about
September 1972 the first owners of 163 wished to sell their house. Mr and Mrs
Parsons wished to buy it and applied to the Halifax Building Society for a
mortgage. The Halifax instructed Mr Heath to inspect the property; he had been
undertaking inspections for building societies for many years. Mr Heath carried
out a purely visual inspection, by no means as searching as would have been a
structural survey. He does not remember having seen any cracks, and he
recommended the Halifax to grant the mortgage. Mr and Mrs Parsons became the
owners and over the next three years carried out redecoration.
In what he
described as 1974-75, or about a year or more before February 1976, Mr Perry
removed some wallpaper above windows of the bathroom and bedroom at the front
of 161 in order to attach battens to the walls to support new curtain rails and
was surprised to find some large cracks, which he proceeded to fill with
Polyfilla. No other cracks came to his notice at that time.
In the autumn
of 1975 Mr and Mrs Parsons wished to sell 163 and Mr and Mrs Thurbon, who
wanted to move to the Clacton area, were taken by a local estate agent to see
it. They were told that a prospective purchaser had recently withdrawn. They
liked the house and applied to the Halifax for a mortgage. Once again the
Halifax instructed Mr Heath, who carried out an inspection. He did not observe
any cracks, noted that the decorations were in a good state and recommended the
grant of a mortgage. The purchase price of the house was £10,900 and the amount
lent was £6,500. The Thurbons did not see Mr Heath’s report, but they bore its
cost.
On November 10
1975 solicitors acting for the Thurbons in the house purchase wrote a very full
letter to them which included the following:
We should be
glad if you will please confirm that you have thoroughly inspected the property
and are satisfied with the condition thereof or do you wish to have a survey
please?
The Thurbons
decided not to have a structural survey carried out. Mr Thurbon explained that
they did so because they had on two previous occasions bought houses without
surveys, because the Halifax had had a ‘survey’ carried out and were still
willing to grant a mortgage and because their solicitors, their estate agents
and Mr Heath were all reputable and practised locally.
On or about
December 8 1975 Mr and Mrs Parsons conveyed 163 to Mr and Mrs Thurbon, without
any express assignment to them of any existing rights of action in relation to
it. The Thurbons moved into the house with their four children.
Early in 1976
Mr Thurbon heard a rumour that some houses in Holland-on-Sea were subject to
serious problems. He examined 163 and found nothing wrong apart from a crack in
its garage. He contacted both the Halifax and Tendring, each of whom sent a
representative, who inspected the house and was reassuring.
At about this
time Mr and Mrs Perry wished to sell 161. Mrs Perry had developed a serious
back condition, which made it desirable for them to move to a bungalow. Mr
Perry contacted the estate agent who had acted in the sale of 163. The estate
agent visited 161, said that he was not willing to act and advised the Perrys
to take further advice.
Mr Perry began
to take down wallpaper, when he found cracks in many places. He instructed Mr
Holloway, a chartered surveyor, who on April 5 1976 carried out a survey during
which he made two inspection holes to enable him to examine foundations. Mr
Holloway found cracks in the front elevation and in all rooms except for one
bedroom. He found gaps between piles and beams. He also found that drains,
which had no doubt been laid by Coote, were not properly jointed or surrounded
with concrete, so that waste water had been discharging from them. Mr Holloway
advised further investigations. Mr Perry informed Mr Thurbon of Mr Holloway’s
findings and advice.
Later in 1976
or 1977 Mr and Mrs Perry, who had installed a gas fire in their sitting-room,
but were still using the kitchen stove, noticed that smoke was entering their
airing cupboard on the first floor. A builder advised that their chimney was
cracked and they ceased to use the stove.
Mr and Mrs
Thurbon kept a car in their garage until some time after 1976, when they
stopped doing so, because petrol fumes were escaping from it into their front
bedroom. Mr Thurbon said that they had not noticed fumes previously.
Since then the
Perrys and the Thurbons have continued to live in their respective houses and
brought up their children in them. Neither family has been in a financial
position to move. Cracking became progressively worse until about 1980, but has
since become less. Cracking can be accompanied by a noise described by Mrs
Perry as ‘ghosts’. Happily, despite all disadvantages, Mrs Perry’s physical
condition has improved. I visited both houses in November 1982 and saw how bad
was their condition.
In the autumn
of 1977 Dr Weeks investigated 157 and 159 on behalf of their owners. Dr Weeks’
report of November 21 1977 stated, obviously on the basis of what he had been
told, that damage was believed to have become apparent in 157 during August
1970, while only slight cracks were visible at that time in 159. By 1977 157
was uninhabitable, while 159 was habitable only because of continuous
maintenance.
In the summer
of 1978 Dr Chandler investigated 157 and 159. In his report to Rok-Crete of
July 11 1978 he mentioned that during the underpinning of 157 in 1970
quantities of water were encountered because of cracked and badly constructed
pipes and stated that by 1972 cracks in 157 were quite substantial and affected
159. He, like Dr Weeks, was, of course, relying upon information provided.
Experts’
opinions
Between 1980
and 1982 each of the experts investigated 161 and 163 and prepared reports.
They agreed that there had been substantial trees on the sites of the houses;
that the trees had, by absorbing water through their roots, dried the
underlying clay; that after the trees had been cut down the clay had drawn in
water from rain and other sources; that as the clay absorbed water, it became
swollen and heaved upwards anything on top of it; that the houses were built
with foundations which would have been effective against subsidence, but made
no provision for heave; that the heave may have lifted some of the piles; that
it undoubtedly lifted the beams and caused them to separate from the piles; and
that differential movement of the beams caused structural damage to the
superstructure of the houses.
Experts
differed as to whether in 1965 reinforcement should have been provided between
piles and beams, but Dr Weeks said that, if provided, it would have restrained
the beams from lifting easily and that damage would have been worse. The experts
agreed that many factors could affect the pattern of movement and damage, such
as uneven rising of piles; presence, thickness and type of alluvial material on
top of the clay; rainwater reaching the edges of the houses, but not their
centres; wet and dry seasons; and water escaping from service pipes.
The experts
further agreed that it is now well known in the construction industry that what
they called ‘long-term recovery heave’ may continue for many years and that,
while large multi-storey buildings have sufficient weight to resist it, smaller
buildings do not, so that if light buildings are to be erected on clay which is
subject to heave, their foundations should include piles, preferably sleeved,
taken down to considerable depths and connected by reinforcement to beams,
which should have either voids or compressible material beneath them.
Dr Weeks and
Mr Akroyd agreed that, despite extensive housebuilding on the clay soils of
London and the South East between the wars, long-term recovery heave did not
become known, because development tended to take place slowly, difficult sites
were avoided and builders used lime mortar, which was better able to absorb
movement than cement mortars in general use since about 1945. It was, however,
generally considered imprudent to build on land from which trees had been
removed without leaving an interval of about a year.
Dr Weeks said
that drought in the summer of 1947 gave rise to many foundation problems. As
the result, in 1949 the Building Research Station issued Digest No 3.
Dealing with the treatment of houses affected by trees, the digest advised:
If the
offending trees have not reached maturity it is wise to cut them down and kill
the stump. When this has been done the ground under the fractured part of the house
will slowly swell up during wet weather and tend to lift that part of the house
and close the cracks partially. It is therefore desirable to delay filling the
cracks for at least one wet season to enable the movement to take place. If the
cracks are filled earlier, further cracks may develop in other places after the
trees have been removed . . . . It is not usually economical to carry out
underpinning of houses badly affected by trees since it is generally necessary
to underpin to a depth of about 10 ft and the cost of the work may be greater
than the value of the property.
After about
1951 there was a great increase in house building. In 1963 the British
Standards Institute issued Code of Practice 101. Its para 302 headed
‘Types of Ground Movement’ stated that ‘settlement of the ground’ might be
caused by ‘volume changes in the soil as the result of seasonal weather changes
or nearby trees’. Para 303, ‘Site exploration’, stated that before foundations
were designed it was necessary to ascertain ‘type and position of trees’. Para
503, ‘Clearance of Site’, stated:
In clay
soils, time should be allowed after the removing or killing of trees for the
soil to swell. This requires at least one winter and, in some cases, movements
continue for a longer time.
Dr Tomlinson’s
book of early 1964 dealt with all aspects of foundation design. Chapter 3 was
headed ‘Foundation Design in relation to Ground Movements’. It stated that
‘ground movements can occur due to swell and shrinkage of the soil under
varying moisture conditions’, that ‘some types of clay soil show marked
swelling’, that ‘the roots of trees and shrubs can extract considerable
quantities of water from the soil’, that ‘there is the problem of foundations
on soils which have recently been cleared of trees and hedges’ and that
‘precautions must be taken not only against settlement but also against forces
tending to tear the foundations apart’. Dr Tomlinson went on to state that:
On sites
occupied by trees or hedges it is advisable to delay construction until at
least one, and preferably two, winter seasons have elapsed from clearing the
growth. Sites where deep-rooted trees have been growing may require two or
three winter seasons for the moisture content of the soil to reach equilibrium
with the surrounding ground.
If delay in
construction could not be allowed, Dr Tomlinson recommended that foundations be
taken ‘down to a depth where the soil is unaffected by moisture content
variations’ and in a diagram he showed a ‘gap or suitable material to absorb
soil swelling’.
Dr Weeks said
that he first encountered heave when advising builders in 1961. He thought that
Building Research Station digests tended to be ahead of the engineering
profession, but that codes of practice set out what was already widely known;
he would have expected anyone concerned with foundation design to have read Tomlinson
and he believed that by 1965 it was general knowledge that recovery after
removal of trees could continue for at least two to three years.
Dr Weeks said
that in the early part of 1965 he would not have expected a bye-law authority
to have known about long-term heave, but to have obtained advice from
appropriate engineers; he thought
that it was certain that engineers who designed foundations should have known
of it.
Mr Akroyd
disagreed with Dr Weeks as to the state of knowledge in 1965. He would have
expected engineers to have known that clay soils can swell and that houses
should not be built upon them until a year after the removal of trees. He would
not have expected engineers to have known of long-term heave, which could cause
a house to rise. Certainly a bye-law authority would not have been aware of the
problem.
Dr Chandler
and Mr Malcolm were in general agreement with Mr Akroyd. Dr Chandler said that
he had first heard of long-term heave through casual remarks of lecturers at
Birmingham University in the early part of 1965. He thought that large
contractors who undertook piling, such as Wates, who had employed Dr Tomlinson,
might from experience have learnt of long-term heave, but that concerns as
small as Rok-Crete would not have known of it. He produced figures showing that
within a year of publication of Tomlinson and at a time when the
Institution of Civil Engineers had 20,511 members, 1,238 copies had been sold.
In his 1978 report Dr Chandler had written that in 1965 engineers would have
known of heave. Mr Malcolm said that it was only after the publication of Building
Research Digests 63 and 64 in October and November 1965 that he and members
of his firm, engineers in general practice, learnt of long-term heave and that
their initial reaction was of unbelief.
All the
experts agreed that after Digest 64, which warned that ‘When trees are
felled . . . considerable time should be allowed for the clay to regain water.
Otherwise there is a serious risk that as clay swells it will lift the
building’ and Digest 63, which recommended that if time could not be
allowed for swelling to occur ‘specially designed foundations are to be
provided’, all engineers could have been expected to have known of recovery
heave. A revised version of CP 101 produced in 1972, the publication by the
Building Research Station in 1977 of a study of the effect of heave on four
cottages at Windsor, later editions of Tomlinson and other technical
publications have further increased knowledge.
Questions
of law
Position
of bye-law authority
In the light
of the House of Lords’ decisions in Anns v Merton London Borough
[1978] AC 728 and Peabody Donation Fund v Sir Lindsay Parkinson &
Co Ltd [1984] 3 WLR 953, I understand the position of a district council,
such as Clacton, exercising powers conferred by the Public Health Act 1936, to
have been as follows:
(1) In passing or rejecting
plans of buildings under section 64 and by its building inspectors’ inspections
of buildings during the course of their erection to secure compliance with
bye-laws made under section 61, the authority owed a duty of care to future
owners and occupiers of the buildings;
(2) The duty existed
irrespective of whether there was a relationship of proximity between the authority
and the owners and occupiers, which would ordinarily have given rise to a duty
of care in negligence;
(3) The duty did not require
the exercise of care to avoid causing any damage, but only danger to health or
safety;
(4) If the authority failed
to exercise reasonable care, an owner’s or occupier’s cause of action against
them accrued when danger was either present or imminent, the latter meaning, as
Lawton LJ said in Ketteman v Hansel Properties Ltd [1984] 1 WLR
1274 at p 1290,† ‘likely to arise soon’,
so that action was required to obviate it or prevent it from getting worse, eg
underpin or grout with concrete. It was not necessary to wait until disaster
had occurred, eg a gas pipe broken or a wall fallen down;
(5) Prima facie the
damages recoverable were the cost of the works necessary to overcome the
danger;
(6) A duty of care arising
from the authority’s exercise of its statutory powers did not prevent the
existence of a duty arising from proximity. Mere failure to insist upon
compliance with plans submitted under building bye-laws, as in Peabody,
did not give rise to such a breach of duty in negligence.
† Editor’s
note: Also reported at (1984) 271 EG 1099, [1984] 2 EGLR 157.
Whether
breach of building bye-laws gave rise to liability in damages.
Clacton made
bye-laws in accordance with a model form issued by the Minister of Health, who
was ‘the Minister’ referred to in the Act of 1936. Bye-law 17 required that
foundations should be designed so as to sustain loads and transmit them to the
ground without causing settlement or impairment of stability and that they
should be taken to such depth, designed and constructed ‘as to safeguard the
building against damage by swelling or shrinking of the subsoil’.
Section 65
provided that if work were carried out in contravention of bye-laws the
authority might by notice require its removal or remove it themselves or might
apply for an injunction requiring its removal or alteration. Under bye-law 108
a person who offended against the bye-laws was liable on summary conviction to
a fine not exceeding £5 and in the case of a continuing offence 40s a day. The
Act did not mention any liability in damages.
The question
of whether a statute, which is silent as to civil liability, none the less
creates it has been considered by the courts on many occasions, most notably by
the House of Lords in Cutler v Wandsworth Stadium Ltd [1949] AC
398, by the Court of Appeal in Monk v Worbey [1935] 1 KB 75, Square
v Model Farm Dairies (Bournemouth) Ltd [1939] 2 KB 365 and McCall
v Abelesz [1976] 1 QB 585 and by Lord Goddard CJ sitting at first
instance in Solomons v R Gertzenstein Ltd [1954] 1 QB 565 at p
576. Mr Gibson provided me with a long schedule of appellate and first instance
cases in some of which the decision went one way and in some the other.
I think that
the effect of the cases is clear. The question of whether an Act creates
liability in damages must be decided principally by reference to its wording,
but regard may be had to considerations such as the pre-existing law. If an Act
makes no provision for penalties or other means of enforcement, the assumption
is that an action may be brought for breach of it. If the Act provides
sanctions for breach of it, the assumption is that no action will lie. Where,
however, the Act is plainly intended to protect an ascertainable class of
persons and there are no common law rights upon which they may rely, it may be
construed as creating a cause of action for breach of statutory duty.
In Anns
case the parties were the lessees of a block of flats and a local authority; no
builders were involved. Lord Wilberforce said at p 758:
The position
of the builder. I agree with the majority in the Court of Appeal in thinking
that it would be unreasonable to impose liability in respect of defective
foundations upon the council, if the builder, whose primary fault it was,
should be immune from liability. So it is necessary to consider this point,
although it does not directly arise in the present appeal.
Lord
Wilberforce next considered whether the builder could be liable for negligence
in respect of defective foundations and, after deciding that he could be,
continued:
In the
alternative, since it is the duty of the builder (owner or not) to comply with
the bye-laws, I would be of opinion that an action could be brought against
him, in effect, for breach of statutory duty by any person for whose benefit or
protection the bye-law was made.
Lord
Wilberforce’s words were, as he himself indicated, obiter and they included ‘in
effect’, but coming from such a source they obviously carry considerable
weight.
In Eames
London Estates Ltd v North Hertfordshire District Council [1980] 18
BLR 50* Judge Fay QC Official Referee, after quoting Lord Wilberforce, held builders
to be liable for breach of bye-laws irrespective of negligence. He went on to
say that he also held them liable in negligence. In Worlock v SAWS
[1981] 20 BLR 94** Woolf J said obiter that he was satisfied that it
would be wrong to regard the building regulations (which in 1966 took the place
of building bye-laws) as giving rise to a statutory duty creating an absolute
liability. He said at p 109:
In my view,
when the speeches in the case of Anns are considered, which deal in part with
the position of the builder, they are inconsistent with any such conclusion . .
. . It seems to me very difficult to accept that a person in the position of
the plaintiff could establish an absolute duty against a builder by virtue of
statute when the contract under which the building work was performed was one
which created no such obligation.
Editor’s
notes:
*Also
reported at (1981) 259 EG 491, [1981] 2 EGLR 110.
**Also
reported at (1981) 260 EG 920, [1981] 2 EGLR 10.
In Taylor
Woodrow Construction (Midlands) Ltd v Charcon Structures Ltd (1982)
266 EG 40, [1983] 1 EGLR 144 Waller LJ in the Court of Appeal said at p 44:
Whether or not
a breach of regulation B1 would by itself give rise to an action for damages
without proof of negligence is to say the least doubtful . . . . I say that the
question of proof of negligence is doubtful because the only expression of view
which gives any support to any other view was contained in the speech of Lord
Wilberforce in Anns . . . Woolf J in Worlock . . . came to
the conclusion that it was not an absolute statutory duty but a duty which was
a duty of care, and without expressing a concluded opinion about it, it seems
to me . . . that a regulation of this kind is very difficult to construe as a
regulation imposing an absolute duty in an action for damages.
In view of
Waller LJ’s and Woolf J’s views, I feel able not to follow Lord Wilberforce’s
dictum and Judge Fay’s judgment which was based upon it.
In my view the
Public Health Act 1936 does not contain any indication that it is intended that
bye-laws made under powers delegated by it should give rise to claims for
damages. The Act provided effective means of enforcement, including injunction.
The Act was
plainly intended to protect owners and occupiers of buildings, but they were
not without remedies at common law, as in respect of almost all matters covered
by the bye-laws they could bring actions for negligence. Possibly the only
exceptions are bye-laws dealing with size of windows and space about buildings.
The local
authority’s liability in Anns was not for breach of statutory duty but for
negligence in the exercise of statutory powers. The builder in that case would
probably have been liable in negligence.
In my opinion
a breach of building bye-laws did not give rise to liability in damages, but I
trust that before long there will be a specific decision of the Court of Appeal
on the subject.
Assuming
that (contrary to my view) building bye-laws could result in civil liability,
who might be liable for breach of them?
The Act of
1936 did not state in terms who should comply with bye-laws, but section 65
provided for notices requiring the pulling down or removal of work to be served
on ‘owners’ and section 67 provided for determination of disputes between a
local authority and ‘a person who has executed or proposes to execute’ work.
Bye-law 2(1) required that ‘a person who erects a building shall comply with
the requirements of (bye-laws)’. From bye-law 6 onwards ‘the person’ is called
‘the builder’.
I think that
it is generally believed in the construction industry that it was the person
who personally, or by his own employees, carried out major works in connection
with the erection of a building who had to comply with bye-laws. That person
might be the main contractor under a building contract or a builder building on
his own land. Enforcement notices had to be served on the ‘owner’, since only
he could alter or destroy his property and he would have been the immediate
loser as the result.
In the Eames
case, however, Judge Fay held that a firm who had erected only part, but a
large part, of a building under a contract with developers was liable for
breach of bye-laws. Whether subcontractors, or persons such as Rok-Crete
undertaking only a small part of the construction of a building for builder
owners, may be liable has never apparently been decided.
Mr Fletcher
conceded that Rok-Crete were not ‘builders’ within the bye-laws and said that
Coote were. He argued that anyone, including the subcontractor or engineer, who
assisted a person subject to the bye-laws to act contrary to them would be
equally liable for breach of statutory duty. He did not cite any authority in
support of his submission, but sought to rely upon what he claimed was an
analogy with the position of an aider or abetter of a statutory offence in
criminal law.
I think that
the general belief as to who had to comply with bye-laws is right. Because of
Mr Fletcher’s concession, I will not express any view as to whether a subcontractor
or the like had to comply with bye-laws. I do not think that Mr Fletcher’s
analogy is correct; aiders and abetters may be convicted as principal offenders
in the criminal law because of special statutory provisions, namely the
Accessories and Abetters Act 1861, as amended by the Criminal Law Act 1977.
In any event,
I know of no principle which would justify extending the scope of strict
liability.
In
deciding whether a local authority, piling specialists and engineers have
failed to take reasonable care, what standards are to be expected of them?
The standards
are respectively those of the ordinary competent local authority, piling
specialists and engineers: Bolam v Friern Hospital Management
Committee [1957] 1 WLR 582 (McNair J); Robinson v Post Office
[1974] 1 WLR 1176 CA; and Greaves & Co (Contractors) Ltd v Baynham
Meikle & Partners [1975] 1 WLR 1095 CA.
In Robinson’s
case a doctor in general practice gave a patient an injection of anti-tetanus
serum (ATS) without first administering a test dose and at a time when medical
opinion was moving against the use of ATS altogether. The Court of Appeal
upheld Ashworth J’s decisions that since the doctor’s failure to give a test
dose was contrary to accepted procedure he had been negligent, but that no damage
had been caused, as the result of the test would have been negative, and that,
since at the time there was still a responsible body of medical opinion who
favoured ATS, he had not been negligent in using it.
Upon whom
rests the burden of proof that an action is statute-barred?
Mr Owen
submitted that once there has been a joinder of issue by a plaintiff upon a
defendant’s plea of limitation the burden of proving that the plaintiff’s
action is not statute-barred is upon him. In support of his submission Mr Owen
relied upon Hurst v Parker (1817) 1 B & Ald 92, Beale
v NIND (1821) 4 B & Ald 568 and Wilby v Henman (1834)
2 Cr & M 658, words of Lord Blackburn in Darley Main Colliery Co v Mitchell
(1886) 11 App Cas 127 at p 135, and a passage from Lord Pearce’s speech in Cartledge
v E Jopling & Sons Ltd [1963] AC 758 at p 784.
The reports of
Mr Owen’s first three cases are so short and extracts from judgments so cryptic
that I do not feel able to derive much assistance from them.
Lord
Blackburn’s words were:
There was an
alternative defence that the causes of action did not, nor did any of them,
first accrue to the plaintiff at any time within six years before the
commencement of the action; and, therefore, it lay on the plaintiff to give
evidence of some cause of action subsequent to December 27 1876.
In saying that,
I think that Lord Blackburn was summarising a part of the defendant’s case
rather than expressing his own view. He certainly did not develop the matter.
The passage
from Lord Pearce reads:
I agree that
when a defendant raises the Statute of Limitations the initial onus is on the
plaintiff to prove that his cause of action accrued within the statutory
period. When, however, a plaintiff has proved an accrual of damage within the
six years . . . the burden passes to the defendants to show that the apparent
accrual of a cause of action is misleading and that in reality the causes of
action accrued at an earlier date.
I read Lord
Pearce as saying simply that when a limitation defence has been pleaded, the plaintiff
must prove that he has suffered damage during the six years before issue of his
writ and that it is then open to the defendant to prove if he can that the
damage began more than six years before. In other words the burden of proving
that a case is statute-barred is upon the defendant.
I certainly
hope that that is correct for, as I was somewhat unkindly reminded, I have
proceeded on that assumption in two cases in the last year, London
Congregational Union v Harriss and EDAC v Morgan and
Others.
Whether an
owner or occupier may sue in respect of a cause of action relating to his
property which accrued before his ownership or occupation without assignment to
him of the right of action?
It is well
established that everyone concerned with the design and erection of a building
owes a duty of care, not merely to first owners and occupiers but to their
successors: Dutton v Bognor Regis UDC [1972] 1 QB 373 CA and Anns
case in the House of Lords. The cause of action does not arise at the date of
the design or construction, but when an owner or occupier has suffered damage.
The Court of
Appeal in Sparham-Souter v Town & Country Developments (Essex)
Ltd [1976] QB 858 decided that damage was suffered when it was detected or
could have been with reasonable skill and diligence. Lord Denning MR at p 868
made plain who was entitled to sue:
The only
owner who has a cause of action is the owner in whose time the damage appears.
He alone can sue for it unless, of course, he sells the house with its defects
and assigns the cause of action to his purchaser.
Counsel
submitted that an existing cause of action might ‘come with the property’ on
its conveyance from one owner to another, but Roskill LJ thought that that was
an ‘impossible argument’. He said at p 873:
There is no
relevant estate contract here. There is no assignment of any pre-existing cause
of action in tort in the plaintiffs’ favour from their predecessors in title.
Nor do I understand how, as the argument presupposed, there can be some
inchoate or floating cause of action in tort existing in vacuo which can
suddenly enure to the plaintiff’s benefit upon their acquisition of a legal or
equitable title to the property in question . . . . Furthermore, the present
plaintiffs have clearly not acquired such a benefit by contract or by statute,
and I fail to see upon what principle they can be said to have acquired it by
operation of law.
Roskill LJ at p
875 and Geoffrey Lane LJ at p 880 each held that the earliest moment at which
time could begin to run against each successive owner of defective property was
when he bought or agreed to buy it.
In Pirelli
General Cable Works Ltd v Oscar Faber & Partners [1983] 2 AC 1
the House of Lords disapproved the decisions of the Court of Appeal in Sparham-Souter
so far as they concerned the date of accrual of a cause of action and date
from which time could run against a new owner. The House held that the date of
accrual was that on which the damage came into existence, regardless of whether
it was then known or could have been discovered. Lord Fraser of Tullybelton
said at p 18:
I think the
true view is that the duty of the builder and of the local authority is owed to
the owners of the property as a class, and that if time runs against one owner,
it also runs against his successors in title. No owner in the chain can have a
better claim than his predecessor in title.
I think that
it follows from the words of Lord Denning and Roskill LJ in Sparham-Souter,
which I have quoted, and which were not disapproved in Pirelli, and from
Lord Fraser’s words in Pirelli that when damage to a building occurs its
owner acquires a cause of action immediately, even though he is not aware of
it, and that unless he assigns that right of action, when agreeing to convey or
conveying the building to a successor, or possibly transferring occupation of
it to him, the successor has no right to sue.
I do not know
how an assignment could be effected. For assignment under section 136 of the
Law of Property Act 1925, notice to the ‘debtor’ is required, but an assignor
could not give notice to a tortfeasor if unaware of the existence of his cause
of action. Perhaps there could be an equitable assignment, the assignee then
suing in the name of the assignor. I am also uncertain as to what damages the
assignee could recover, since the assignor would not have expended money on the
remedying of undiscovered defects and would presumably have obtained market
price for his property.
Whether a
purchaser who has bought a building without knowledge of defects in it can,
when he brings an action in negligence against those responsible, be held to
have been contributorily negligent if he had failed to obtain a structural
survey before purchasing?
The effect of
a purchaser’s failure to obtain a structural survey was considered by Cobb J in
Sutherland v C R Maton & Son (1976) 240 EG 135, [1976] 2 EGLR
81 and by Park J in Yianni v Edwin Evans & Sons [1982] 1 QB
438. Cobb J held that the failure did not break the chain of causation from the
defendant’s negligence nor constitute fault on the part of the purchaser. Park
J plainly had no doubt that failure could constitute contributory negligence,
but on the facts of the case decided that it did not. Everything, therefore,
depends on the facts.
Conclusions
I think that
all witnesses in the case were witnesses of truth. I do not think that there
was any conflict between Mr Bareham’s, Mr Greenleaf’s and Mr Perry’s
descriptions of the sites of 157 to 163, as their evidence related to different
dates. I think that the tree stumps were present throughout, but that Mr
Bareham and Mr Greenleaf did not attach importance to them at the time and
cannot now remember them.
There was no
direct evidence as to when the trees, which had undoubtedly been present in
1960, were felled and, except for three stumps, removed. The trees’ roots must
have left holes in the ground, but the holes were filled, for there was none to
be seen in 1965. Mr Bareham’s description of the land as being covered with
grass and bushes and Mr Perry’s of the largest stump looking as if it had been
lying about for some time indicated that the trees had been removed well before
1965. I think that the probabilities are that the trees were removed in 1963 or
even earlier.
I think that
in 1965 officers of Clacton probably knew of their own knowledge when there had
last been trees on the land. They either knew or should have known of Digest
No 3 and of CP 101 and, therefore, that after removal of trees from
clay soil, houses should not be built for at least one winter and possibly
longer. I do not think that they could have been expected to have read Tomlinson,
been aware of long-term heave, or of the need for foundations being designed so
as to cope with heave as well as with subsidence.
If, as I have
concluded, the trees were felled in 1963 or earlier and Clacton did not know
that swelling could continue for a long period, they cannot in my view be
blamed for not having suggested or insisted that the land be left unbuilt upon
for a longer period or the houses provided with foundations designed to deal
with heave. There was also no reason why they should have thought it necessary
to obtain outside advice.
Clacton were,
I think, casual in allowing work to start on site when plans had not been
formally approved, but both Mr Keeble’s submitted plan and Glovers’ plan made
provision for the only danger then known to Clacton, namely, settlement. Mr
Clarke noted that Rok-Crete were constructing the foundations; no doubt he knew
that they specialised in foundations and found that reassuring.
I hold that
Clacton when administering the building bye-laws did not fail to exercise
reasonable care to protect owners and occupiers of 161 and 163 for danger to
health and safety.
Mr Bareham
seems to have known little about the effects of tree removal from clay soil. He
had no knowledge of there having been trees on the land, and its state when he
saw it did not cause him to think that there had been any, at least in recent
years. The only forest trees nearby were on the opposite side of a hedge. In
the circumstances Mr Bareham was not in my view at fault in failing to make
inquiries and to communicate their result to Mr Knight.
If Rok-Crete
had designed foundations themselves, I think that Mr Bareham might have been
expected to have been more knowledgeable than he was. Since, however, on every
project they instructed Glovers to carry out a site inspection and to advise at
tender and design stages, they cannot be blamed for failing to keep up-to-date.
I think that Rok-Crete acted with proper care in instructing and relying upon
consulting engineers. They were not negligent.
Much more
knowledge and skill was to be expected of Glovers than of either Clacton or
Rok-Crete. Mr Knight knew of the risks of building on land from which trees had
been removed without waiting for at least a year for the ground to recover.
Possibly what he described as his understanding with Mr Bareham that Mr Bareham
would tell him of relevant hazards justified him in not asking questions
initially. Once, however, he had found tree roots in boreholes, as I feel sure
that he must, he should, I think, have caused proper inquiries to be made.
Unfortunately,
the result of the inquiries would have been merely reassuring, for they would I
think have shown that felling had occurred prior to 1964. Mr Knight, knowing
nothing of long-term heave, would no doubt have decided that it was safe to
proceed with building. He said that if he had come to know of trees, he would
have consulted Mr Cracknell, but it seems unlikely that Mr Cracknell, being in
the same firm as Mr Knight, would have known of long-term swelling at that
time.
Whether Mr
Knight should have known of long-term heave in March or April 1965 depends on
what was to be expected of the competent engineer at that time. Dr Weeks
personally knew of it, but he was only able to refer to one book intended for
engineers which dealt with it. Dr Chandler had not read Tomlinson and
thought that engineers generally would not have known of heave, although he had
expressed the contrary view six years ago. Neither Mr Akroyd nor Mr Malcolm had
known of Tomlinson, and both said quite categorically that they
themselves had never heard of heave. Mr Malcolm’s evidence of his and his
colleagues’ initial disbelief on reading Digests 63 and 64 was striking.
On the totality of the expert evidence I must, however reluctantly, conclude
that at the material time the competent engineer would not have known of
long-term heave.
I think that
there is a resemblance between this case and Robinson.‡ In Robinson the doctor should have
carried out a test; in this case Mr Knight should have made inquiries. In both
the results would not have provided any warning. In Robinson the doctor
did what many doctors would have done at the time, although the better opinion
was that it was dangerous. Mr Knight did what many, probably the overwhelming
majority of, engineers would have done, although there were some, including Dr
Weeks and Mr Tomlinson, who knew that it was wrong to do so.
‡Robinson v
Post Office [1974] 1 WLR 1176 CA.
In my opinion,
Mr Knight and, therefore, Glovers were not negligent and it follows that Mrs
Perry and Mr and Mrs Thurbon, for whom no one could feel anything but sympathy
in their misfortunes, have not succeeded against any of the defendants.
In case I am
wrong in my above conclusions, I will; as indeed I have been asked to do, deal
with the other defences which have been raised.
I think that
within a comparatively short time of the houses being completed, heave lifted
their beams above all or most of their piles. The defendants have not, however,
satisfied me that any physical damage then occurred, as I think it quite likely
that in the absence of reinforcement and since the addition of the concrete was
a topping-up operation no lasting adhesion was achieved between the different
faces.
The experts
agreed that many factors could affect the times and places at which cracks
caused by differential movement would occur. That being so, I do not think that
it follows that because damage arose in 157 and 159 prior to 1974, it occurred
in 161 and 163 at the same time.
Cracks must
have developed in 161 before Mr Perry found those in the bathroom and a bedroom
in 1974-75, but how long before I do not know. To succeed in a limitation
defence against Mrs Perry, Glovers have to show that damage occurred before
January 7 1975. That, in my opinion, they have succeeded in doing. Tendring’s
position is different: the bathroom and bedroom cracks did not make the house
unsafe; not until cracks developed in the chimney, which brought about the
escape of smoke into the airing cupboard, did imminent danger to health or
safety arise and that was not until the end of 1976 or 1977.
Mr Thurbon
found numerous cracks in 163 in January 1976, and some of them at least must
have existed previously, but I could not possibly infer that they started as
early as August 29 1973, which was six years before the Thurbons issued their
writ. Danger to health and safety arose in relation to 163 when fumes began to
pass from the garage into the front bedroom.
Although there
can be no precise date as to when cracks began in 163 and it is extremely
unlikely that they began as early as 1973, some, if not all, must have occurred
before December 1975, when the Thurbons became the owners and occupiers of the
house. The causes of action against Rok-Crete and Glover (but not against
Tendring), therefore, accrued before the Thurbons’ ownership and occupation and
have not been assigned to them.
If the
defendants had been liable, I think that the Thurbons might well have been
guilty of contributory negligence in not obtaining a structural survey. They
were entitled to attach some importance to Mr Heath’s inspection, but they must
have realised that it was not the equivalent of a survey. They were not
obtaining a 100% mortgage but only about a 60% one. No doubt the estate agents
were reputable and could, as they demonstrated in relation to 161, be relied
upon not to sell a property which they knew to be defective without giving
warning, but there was no reason why they should have known of defects which
would only be revealed on a survey. Mr and Mrs Thurbon’s solicitors expressly
drew their attention to the question of a survey. I think that the Thurbons
took a chance and that in all the circumstances that constituted contributory
negligence, but I would not have expected its proportion to have been other
than small.
