Action against surveyor for negligence and breach of duty arising out of a report of a survey commissioned by the plaintiff before he purchased a property — Defective boundary wall which later collapsed — Plaintiff alleged that defendant surveyor should have drawn attention to unstable condition of wall — Lengthy trial with much expert evidence — Judge held on the issue of liability that the defendant should have given a warning in his report as to the troubles likely to arise from the condition of the wall and that he failed in his duty by not doing so — Evidence as to nature, extent and cost of remedial works required — Cost put at £5,900 at date of purchase of property — Review of authorities as to correct measure of damages — Correct measure on basis of Perry v Sidney Phillips & Son and Philips v Ward was the difference between the price paid by the plaintiff and the price which he would have paid if the defendant had given a proper report — In arriving at the diminution of value, however, the cost of repairs to the wall was relevant — A purchaser of property, being made aware that a sum of money would have to be expended on repairs, would not necessarily expect a reduction in price equal to the whole of that cost — Held that in the present case it would be reasonable to assess the damages on the basis of the plaintiff’s accepting 25% of the risk of expenditure — Damages accordingly fixed at £4,425 plus a sum of £500 for ‘vexation’
In this action
the plaintiff, David Charles Bolton, sued the defendant, Harold Puley, a
surveyor practising in Bridport, for damages for alleged negligence and breach
of duty in a survey report on The Old Coach House, Abbey Street, Crewkerne,
Somerset, which the plaintiff purchased in 1977.
J D Griggs
(instructed by Park Nelson & Doyle Devonshire, agents for Clarke Willmott
& Clarke, of Yeovil) appeared on behalf of the plaintiff; R D H Bursell
(instructed by Cartwrights, of Bristol) represented the defendant.
Giving
judgment, TALBOT J said: The plaintiff’s claim for damages arises from the
purchase of The Old Coach House, Abbey Street, Crewkerne, in the county of
Somerset, on October 7 1977. Before entering into the contract of purchase he
instructed the defendant to carry out a survey and in due course received the
defendant’s report (P3/6) as a result of which he made an offer to the vendor
of £27,000 which was accepted. In his action for damages he claims that the
defendant was negligent and in breach of contract in that the boundary wall on
the east side of the property, being the boundary wall between the property and
Abbey Street, was defective and unstable, with the result that he will be put
to considerable expense to put it in proper and safe repair. By his defence the
defendant denies that he was negligent or in breach of any duty under his
contract with the plaintiff.
It is
necessary to begin my assessment of the facts to describe the wall in question.
It is some 55 m long, about 2.4 to 3 m in height and overall has the thickness
of about 500 mm. It is a very old wall, having been constructed about 200 years
ago, of random stonework and of monolithic construction; that is to say, the
body of the wall is of cob, the binder and filler being soil having slight
cementitious property. Furthermore, it subsequently came to the plaintiff’s
knowledge that it was a Grade II listed building. There are numerous
photographs showing various sections of the wall and also plans which indicate
its position in relation to the house and various trees. At the northern end of
the wall, there is an old well known as ‘Poples Well’. It is common ground that
the defendant, in his survey report, did not make any reference to this well.
At the southern end of the wall, where it is bonded into the gable end of the
Old Coach House, there is a patio which is above the level of the wall, about
4.5 m by 6 m in area, in which at the time of the purchase there was a large
beech tree said to be about 150 years old. At that point, therefore, the wall
was retaining the soil upon which the patio was placed and in which the tree
grew, and the wall continued to be a retaining wall for a distance of some 17
m, the ground dropping to road level at about that point. Thus, for the
distance of about 17 m, this wall was a retaining wall. Some time in 1979 the
plaintiff had the beech tree cut down, so that all that remains at present is
the stump. A view of the patio is shown in photograph D3/12. It also indicates
that the patio is on two levels, there being a lower level on the northern
side.
On January 21
1980 there was a collapse of the wall at the Poples Well end. Some of the stone
had fallen into the road and a telephone call was made to the plaintiff at his
place of business in Bridport as a result of which he returned to investigate
what had occurred: He found that at the recess part of the wall by the well,
which can be seen in the photographs, stones had fallen. He looked to see if
any of the other stones were unsafe and found that there were some that came
away easily. He then noticed that there was movement along the whole of that
section of the wall, and when he pushed the wall a section of it fell into
Poples Well on the roadside. The result was that the top part of that section
of the wall fell, leaving the bottom section which can be seen in D3/6 and
D3/8. Because the wall immediately abutted Abbey Street, there was, of course,
the question of danger to the public from further collapse. The plaintiff
therefore put the matter into the hands of his solicitors, who instructed
Cottington Phillips & Associates, consulting civil and structural
engineers. Following a survey carried out by Cottington Phillips &
Associates, the plaintiff was advised that immediate remedial work would be
required to the whole length of the wall and that a likely cost was in the
region of £30,000. The result of this was that, on February 2 1981, the
plaintiff’s solicitors wrote to the defendant claiming that it was by reason of
his failure to deal with the wall in his survey, which had caused the plaintiff
to be in what they described as ‘an expensive predicament’, and that they
therefore held him responsible.
It is
necessary next to describe the condition of this wall in which it was found to
be at the time of the plaintiff’s engineer’s survey. They began a survey on
September 29 1980 and made measurements to ascertain the movement of this wall
between that date and February 25 1982. The results can be seen on plan 1004/4
and depicted upon a graph drawn by the defendant’s expert, Mr Jones.
At the patio
end of the wall there is a lean outwards of some 250 mm. The graph shows the
lean throughout the length, the next greatest point being by a cypress, where
the lean is some 225 mm, that point being at D-D on plan 1004/1. It is common
ground that at this point D-D, there is a bulge in the wall caused by the roots
of the cypress tree and that at the patio end, where the retention is greatest,
it is necessary that some work should be done to stabilise the wall. At a point
11 m from the house and against the wall there is an electricity pole and in a
photograph in P2 it can be seen that the lean of the wall has resulted in the
electricity pole stays, if not the electricity pole itself, touching the wall
as a result of its lean. A second graph drawn by Mr Jones indicates the rate of
movement between the two dates of the survey, and it can be seen that the
highest rate of movement over that period was at the patio end of the wall at
or about the point where the beech stump remains.
At this stage
it is necessary that I should speak of the principal expert witnesses that have
given evidence in this case. On behalf of the plaintiff the engineers were
represented by Dr Buttling, a chartered civil engineer, with qualifications
that included a doctorate at the University of Bristol in 1974. He and his
engineers were responsible for the surveys to which I have referred and for the
preparation of the plans. He prepared a report, which is part of P1, in which
are set out his findings as to this wall and his opinions as to what is
necessary in order to make it stable and safe.
The plaintiff
also called a Mr M A J Southwell, a chartered surveyor, who has practised in
the South Somerset area for about 13 years.
The defendant
relied upon the evidence of Mr Jones, a senior engineer in the employ of
Freeman Fox & Partners, a firm of experienced civil engineers. In addition,
he relied upon the evidence of Mr G M Davis, of the firm of Davis, Blackburn
& Partners, chartered building surveyors.
The principal
difference between the two sets of experts with regard to the present condition
of the wall lies in the amount of remedial work which it is said must be done
to it. The plaintiff’s
some 45 m of it from the south end by the house to Poples Well — will have to
be rebuilt in accordance with one of four schemes proposed. On the other hand,
the defendant’s experts do not regard it as necessary that such extensive
remedial work is required, it being their opinion that at certain points only
is it necessary to carry out remedial work.
I was given
evidence on behalf of the defendant, coupled with the evidence of photographs
concerning other walls of about equal age and height, not only in the immediate
vicinity of the plaintiff’s wall in Crewkerne but also in the vicinity of
Bristol. The purport of this evidence, and this can be seen from the
photographs, is to the effect that these old walls do lean and can be
satisfactorily dealt with by methods other than demolition and rebuilding, and
further, that they can be seen to be in conditions where they lean, in some
cases quite substantially, and yet be in a condition which is quite safe and
stable. It will be necessary at a later stage in this judgment for me to come
to a decision as to the extent of the remedial work that will be required and
the approximate cost of it.
At the outset
of this case, almost every issue was in dispute between the parties, this being
the principal reason why the trial of this matter took 12 days, but towards the
end of the trial the issues narrowed. Apart from the issue relating to the
condition of the wall as it is at present, and the work necessary to be carried
out upon it, the other principal issue was whether the condition of the wall
was such at the time of the defendant’s inspection and report in 1977 that he
should, in discharge of his duties as a surveyor, have become aware that it was
in a condition that required attention, and that would in the future require
attention and should therefore have reported on it to the plaintiff. Much
evidence was given as to the causes of the condition of the wall which it is
in, as seen from the surveys begun in June 1980, and as to whether or not that
condition could have occurred since 1977. For instance, there was the cutting
down of the beech tree in 1979. For the plaintiff it was contended that that
event could not have brought about the deterioration of the wall that was found
to exist at the time of the plaintiff’s experts’ surveys. On the other hand,
the defendant relied upon the expert evidence that the cutting down of the
tree, without going into the many technical details, resulted in the increase
of hydrostatic pressure, owing to the fact that the tree was not taking up the
water, and that the deterioration of the wall was principally due to that
event. Another cause of the deterioration at the southern end, the patio end,
was the effect produced by the weight of the patio on the soil above the level
of the crest of the wall which in its turn produced a force referred to as an
overturning force against the wall.
Although,
therefore, it seemed at the outset of this case, and for some time during its
progress, that it would be necessary for me to decide what the state of the
wall was in 1977 and whether the defendant should have noted an unstable state,
it transpired during the evidence of Mr Davis, given on the eighth day of the
trial, that it was his opinion that at two points the wall must have been in
such a state at the time of the defendant’s inspection that he should have
reported upon its condition to the plaintiff.
The first
point that Mr Davis referred to was the bulge in the wall at point D-D on plan
1004/1. He said that in all probability that bulge existed to a noticeable
extent at the time that the defendant carried out his survey. It is located
immediately behind the base of the cypress tree and the displacement of the
wall would be related to the root thrust from the tree. He felt that the
defendant should have made mention of that defect in his report; he should have
written into his report some detail how this bulge could be repaired and its
likely effect on the wall, and he should have made reference to the general
condition of the wall in question. If the defendant, he said, had felt that he
was not competent to advise within his ability, he should have suggested that a
separate report be obtained from a civil building surveyor. This evidence
confirms the plaintiff’s evidence that, at the time of purchase, this bulge was
noticed by him. The other point to which he referred in this respect was the
area of the wall by the stump of the beech tree. He gave a good deal of
evidence about the felling of the beech tree and the consequent effect upon the
wall and, in addition, envisaged the probability that in the cutting down of
the tree, baulks of timber could have been lowered upon the patio resulting in
a heavy surcharge on the ground immediately adjacent to the wall with resultant
increase in lateral pressure and outward movement of the head of the wall.
However, he went on to say later in his evidence that the defendant should have
asked himself about the patio: it is positioned approximately 3 m above the
road level and would have added additional weight to the ground, which could
have led to stresses on the wall. While the defendant did refer to the tree in
his report, he did not consider or mention the patio.
With regard to
the position of the wall in relation to the electricity post and the stays
supporting the post, Mr Davis pointed out that the wall had moved out
approximately 155 mm, with the result that the stays were tight against the
wall which was biting into the stays. He thought that the amount of movement
(that is to say the lean) would have been reasonably apparent at the time of
the defendant’s survey and it was his opinion that this should have been put
into the defendant’s report. He also considered that the defendant should have
more particularly mentioned this point because the wall was a listed wall. He
thought that approximately half the lean, which is shown to exist in photograph
P2, would have shown at that time.
It seems to me
on this evidence, and I think Mr Bursell had to acknowledge the effect of it,
that there can be no doubt that, at the two particular points at least,
referred to by Mr Davis, the wall was in such a condition that it should have
been referred to by the defendant in his report so as to warn the plaintiff of
the existing condition, that is, either an unstable condition or a condition
which would lead to instability, and that therefore the defendant was in error
and failed in his duties in this respect. To this extent, therefore, I have
come to the conclusion that there can be no doubt but that the defendant was in
breach of his duties, at least in respect of these two parts of the wall. I
also think that, had the defendant carried out his survey so that he was
alerted to the condition of the wall at these two points, it would have led him
to make a detailed examination of this wall and he might well then have come to
the conclusion that the plaintiff should be warned that, not only at these two
points but possibly at others, the wall might result in expense to the
plaintiff. I am strengthened in the view that I have formed by the defendant’s
own evidence. During his cross-examination it was put to him that he did not
consider the effect of the patio on the wall and he agreed that he did not. He
also agreed that, as a careful surveyor, he should have done so and that he
should have considered whether the wall was moving.
One of the
matters that I have to decide is whether the initial collapse at the Poples
Well end of the wall was due to its unstable condition or whether to some other
cause. I have to consider in this respect the plaintiff’s evidence. I have
already recited the discovery by him of the collapse in 1980 and have given the
facts of which he spoke. I must decide upon his evidence, as he was criticised
by Mr Bursell as a witness upon whom I ought not to place reliance.
One of the
important matters about which the plaintiff gave evidence, and which may well
affect the damages that the defendant must meet as a result of his breach of
duties, concerns the plaintiff’s evidence about a garage which at one time he
considered constructing, with an entrance through the wall at the southern end
near the house. It is largely upon what the plaintiff said about this that Mr
Bursell bases his criticisms. From the evidence of Mr Olney, who was employed
as an engineering assistant in the surveyor’s department for the Somerset
County Council, there arose towards the end of 1981 the question of a garage
for the Old Coach House. He went to inspect the site in order that he might
make a report. The suggestion was that there should be an opening formed in the
retaining wall immediately adjacent to the Old Coach House for the purpose of
the garage which was to be constructed on the land. He produced D9, a sketch
which was submitted in order to indicate where it was proposed the garage
should be and which included a letter from the plaintiff to the planning
department. It can be seen from the plan that the garage was to be at the patio
end of the wall. The result was that such a proposal was not acceptable to the
highway authority and in the event it was not proceeded with. Mr Olney,
incidentally, explained that the position proposed was quite unacceptable by
reason of its position in relation to traffic using Abbey Street, but that any
proposal for a garage in a position further towards the north end of the wall
might be feasible, provided the entrance was set back in order to comply with
highway requirements.
The
plaintiff’s evidence about this was that, while there was at that time
consideration being given to the construction of a garage and entrance to Abbey
Street, he had now abandoned all intention in that respect and that whatever
was required to be done to put the wall in a safe and stable condition should
be carried out without any regard to the future intention to construct an
entrance through the wall for a
garage and a portion of the wall removed for that purpose, then it would be
quite wrong that the plaintiff should be compensated for that part of the wall.
In the course
of the trial of this action, the plaintiff produced a letter dated June 23
1982, written to Mr Shoemark, a builder who gave evidence about the cost of
repairs to the wall, and in that letter the plaintiff stated that, depending
upon the outcome of the case, he intended that all the matters referred to by
Dr Buttling should be carried out by Mr Shoemark. Mr Bursell’s comment was that
this was very suspect and was merely a device in order to conceal the true
intention of the plaintiff with regard to the garage, in order that he might
receive damages for the remedial work for the whole of the wall. Furthermore,
there was a good deal of cross-examination, when the plaintiff was recalled on
the sixth day of the trial, about his business and various assets, including a
publication in the form of a holiday guide, in which he was interested. Mr
Bursell did not dwell upon this in the course of his final address, but I have
reread my notes and have considered all the matters raised by him in his
cross-examination. I have come to the conclusion that it would not be just, in
my judgment of the plaintiff, to treat him as a witness whose evidence I ought
not to rely upon. The primary matter, therefore, is that I accept that his
intention and his wish is that the wall shall be rebuilt or strengthened, and
in any event put into a condition where it would be stable.
This view that
I have formed of the plaintiff as a witness is also of importance when I have
to consider the item of damages that he claims in respect of the vexation,
worry and distress that he suffered as a result of the position he found
himself in when it was discovered that the wall was unstable. This coupled with
the enormous sums of money which he was told he would have to find in order to
put the wall in order undoubtedly did cause him considerable worry. As he said,
the cost of £30,000 frightened the life out of him; he had not realised the
wall could be so expensive and he was not in a position to be able to afford to
have such work done.
To return to
the Poples Well end of the wall and the cause of the collapse, I have already
dealt with the position the plaintiff found it to be in when there had been the
partial collapse into the road. At the time it was thought that the damage
might have been caused in a traffic accident as a result of a motor vehicle
colliding with the wall. For instance, Dr Buttling, in his initial report, in
paragraph 3.2 refers to vehicular damage to the lower 11 m of the wall. In a
letter dated August 21 1980, Cottington Phillips & Associates wrote to the
loss adjusters on the subject of this wall and inter alia dealt with the
possibility that there had been vehicular damage to this wall at the Poples
Well end. While there was no evidence of any vehicle impact apart from the
damage to the wall, having examined the various factors which they considered
of importance, they came to the opinion that the localised damage in that area
was consistent with the consequences of impact. It is not surprising,
therefore, that Mr Bursell argues that one ought to disregard this area of the
wall when considering the defendant’s possible liabilities. However, on the
other hand, there was no direct evidence, nor did the police find any, that a
vehicle had collided with this wall. It seems, too, that the loss adjusters
denied any liability, and, turning to the plaintiff’s account of what he found,
to which I have already referred, it does seem, as Mr Griggs has submitted,
that it amounted to the description of an unsound wall that had collapsed,
rather than a description of a wall which had been struck by some vehicle. It
is a factor to take into account that there was already some lean to this particular
part of the wall. Taking all these matters into account, I have come to the
conclusion, in the absence of any evidence pointing to a vehicle impact as the
cause of the damage, and having regard to the general state of the wall which
existed at the time, that the damage was due to the failure and instability of
this wall, rather than to vehicle impact.
The next
matter of inquiry is the extent of the wall, or the parts thereof, that will
require to be repaired in order to be put back into stability. The plaintiff’s
case initially, through Dr Buttling, was that the whole of the wall, that is to
say, from the southern patio end down to and including Poples Well, would have
to be taken down and rebuilt in accordance with one or other of Dr Buttling’s
schemes. However, this extent of repair is no longer pursued as, during the
course of Mr Griggs’ argument, he conceded that he was no longer arguing that
the whole of the wall would have to be renewed.
In my judgment
there are three areas in respect of which work will have to be carried out. The
first is the Poples Well end, with which I have just been dealing; the second
is the bulge at D-D; and the third is a top area of the wall at the patio end.
The extent of this particular area presents certain difficulties. Mr Jones’
scheme related only to work to be carried out in respect of a length of 8.5 m
that would not encompass the 11 m point where the electricity pole is and where
it can be seen that there is a considerable lean of this wall. I think Mr
Jones, when questioned about this, had to concede that the work he envisaged
for the 8.5 m would have to be in some way extended to cover the point by the
electricity pole. The way he put it was that there would have to be some local
masonry work to combine the two. As I have said, the evidence was that for a
distance of 17 m from the house the wall was a retaining one. Mr Jones put it
that throughout this length the soil was at a height greater than 1.8 m. The
significance of this, as pointed out by Mr Jones in his report D1, para 4.4, is
that he would not expect such a wall could retain a normal non-cohesive soil to
a greater height than 1.8 m, but it was his opinion that the fact that it had
retained soil to a height in excess of this for a considerable period suggested
that much of the soil was largely self-supporting. The view that I have formed
on the evidence is that such work as is necessary to restore this wall to
stability at the patio end must extend for the 17 m length where the wall is
retaining the soil.
Before going
on to examine what, in my judgment, has to be done to put this wall in a
reasonably stable condition, and working out from the evidence what the
appropriate cost will be at the present time and then applying the appropriate
factor to reduce the cost to what it would have been in 1977, it is necessary
for me further to examine the causes of the present instability in order to
determine what the position would have been at the time of the plaintiff’s
purchase. That the wall at the time of the plaintiff’s purchase was in a
visible condition that required the defendant to make reference to it in order
to draw the plaintiff’s attention to possible liabilities, I have already dealt
with when I referred inter alia to the evidence of Mr Davis. One of the
arguments advanced by Mr Bursell in his final address was that the effect of
the cutting down of the beech tree was relevant to the causation of the wall’s
instability at the patio end and, as that was carried out by the plaintiff in
1979, it formed a novus actus. The submission, therefore, as I
understand it, is that whatever now has to be done to the patio end of the wall
must, in some part, be due to the subsequent events for which the defendant is
not responsible. The evidence was to some extent conflicting on this point. Mr
Jones’ view was that the cutting down of the beech tree, he would expect, would
cause a disturbance which might have a violent but short-lived effect upon the
wall, and it might have triggered certain further activities. He added in cross-examination
that a beech is a shallow-rooted tree and that the roots might have spread a
distance along the surface of the ground and probably to the face of the wall.
Dr Buttling expected that a surveyor would assume that there would be pressure
on the back of the wall as a result of root growth. He added that the defendant
had noted the presence of the tree, as I have mentioned with regard to the
house foundation, but Dr Buttling said that he should have noted it in regard
to the boundary wall. In my view, if it was important to draw the attention of
a prospective purchaser to the beech tree, its position in relation to the wall
and the possible effects of the continued growth upon the wall, the plaintiff
being thus forewarned would have been aware of the possible consequences to the
wall by reason of the presence of the beech tree and would have had the
opportunity to take advice in relation to that tree. It does not seem to me,
therefore, that the plaintiff should bear any responsibility for his loss in
respect of this end of the wall because of the cutting down of the beech tree
when the defendant had failed to give him any warning at all about the
stability of the wall at the relevant time and the possible effect upon it of
the growth of the beech tree. In my judgment, the measure of the plaintiff’s
loss is what would a reasonable owner have done at the relevant time in order
to put the wall in a safe and stable condition?
So far as the
other two points, namely the bulge and the Poples Well end, are concerned, I
find that there must have been evidence at the time of the plaintiff’s purchase
to show that the wall then required work to be done to it in order to put it
into a stable condition and that by reason of the defendant’s failure, the
plaintif was not aware of possible expense in this respect which might have to
be incurred in the near future.
I turn now to
the work which will have to be carried out to put the
should mention that the evidence was that, as a listed building, it would be
unlikely that permission would be given to remove the wall and build some other
structure. The most likely course which would be permitted to be taken would be
to carry out such repairs as would put the wall in a condition near to that
which it was before. Mr Seward, principal planning officer for historic
buildings, archaeology, and the conservation section of the local authority,
told me that the presumption must always be in favour of repair of a listed
building. Applications in respect of a listed building have to be made to the
district council, that council then would refer it to him (Mr Seward) for an
opinion and, if it were a question of demolition, the matter would have to be
referred to the Secretary of State. It seems to me, therefore, that whatever
scheme I think a reasonable owner would be most likely to adopt, in any event
the matter has to be referred to the district council and precisely what they
might do, having taken the appropriate advice, it is not possible to say with
any certainty. I do, however, consider that I can proceed upon the basis that
in all probability a repair which left the wall stable and in a similar state
to that which it was originally, would be most likely to prove acceptable. I
proceed, therefore, to the question of the necessary repair and the cost,
though I preface my consideration of this problem with the observation that I
have to decide in this case, and do decide, that the cost of repair in 1977 is the
proper measure of loss.
I would begin
by saying that it appears from the evidence that at one time the experts acting
for the defendant were putting an overall cost of the necessary repairs at
£7,150. Dr Buttling had advised that there should be demolition and rebuilding
of the whole wall and presented four schemes. The cheapest scheme is described
as the ‘mass concrete wall’ scheme, the fourth one of the four. This involved a
mass concrete block wall with a stone face in the original stone and the total cost
was £17,500 at 1977 prices. Reducing that in order to reach the cost of a 17 m
length, according to Mr Griggs’ mathematics and taking into account 8% VAT, the
total cost for the 17 m would be of the order of £9,000. Mr Jones advised that
there were three ways in which remedial work could be carried out. These are
set out in his report D1, paragraph 6. Effectively, what he was proposing was,
first, the use of anchor ties and waling; second, rebuilding the patio at a
lower level; and, third, a rebuilding in accordance with certain sketches which
are contained in D1/BD3. The solution by using anchor ties I have considered,
but, taking all the evidence that he gave about it, plus the evidence given by
Dr Buttling about possible failures if this method were used, I have come to
the conclusion that it would not be the solution that a reasonable owner would
wish to see adopted. Principally I have reached this view because it was Mr
Jones’ evidence that to use this method would involve a certain amount of trial
and error. That seems to me to be most unsatisfactory.
The second
method of rebuilding the patio seems to involve a considerable alteration as it
would involve excavation in order to reduce the level and I do not think that
that is a viable proposition either.
I turn,
therefore, to his third method contained in D1/BD3 and compare it with the
proposals of Dr Buttling. In my judgment, what Mr Jones suggests is, on the
face of it, a sound proposition. It has the backing of considerable experience
and, in this respect, I have also referred to the evidence of Mr James, of
Forsey & Son Ltd, building contractors, Mr James being an experienced
builder and particularly experienced in the rebuilding work of natural stone
walls.
I do not
consider, therefore, upon due consideration, that a reasonable owner would
approach this problem by requiring the whole of the wall to be demolished and
rebuilt in such a way as proposed by Dr Buttling. In my view he would most
likely adopt the proposals put forward by Mr Jones, and I therefore base my
calculations as to the cost by reference to Mr Jones’ scheme outlined in D1.
In approaching
the problem of working out the cost in 1977 from 1982 prices, it was, I
understand, accepted that there would be a reduction of some 50%. This was the
evidence of Mr James, and I accept it. In addition, there always has to be made
an allowance for contingencies and also for supervision. The proper figure,
having considered all that has been said about this, would appear to me to be
10% in each case. To the total reached, there would have to be added VAT, which
in that year it is agreed was 8%. Mr Jones’ scheme for 8.5 m was costed by Mr
Davis in the sum of £3,787 which, in 1977, would have been £2,524. To this
amount must be added 10% for supervision and the evidence was there would have
been some five site visits. That gives a figure of £2,776, plus something for
the five site visits, plus 8%. An overall figure of £3,000 approximately was
reached. However, in my judgment, as I have already said, it would be necessary
to go beyond the 8.5 m and to rebuild this wall and stabilise it for at least
11 m. That is an extra 2.5 m. Taking therefore a proportion, there would be an
additional sum of £882, making a total of £3,882.
Mr James, in
his estimate D10 and in his evidence for a less ambitious scheme, it would
seem, put a figure on it of £4,175 for 11 m, which, in 1977, would have been
£2,783 and, together with 8% VAT, the total would have been some £3,000.
Though, as I have said, it appears to be a slightly less ambitious scheme, I am
not absolutely clear whether that is so. In the event, I have decided that I
would prefer to look to Mr Jones’ costing of what would be necessary to restore
this wall to stability according to his schemes at 1977 prices.
But I also
have to consider Dr Buttling’s costing of Mr Jones’ scheme. He put a much
higher price on it, namely (at 1982 prices) the sum of £7,192 which, inclusive
of fees at 1977 prices, would be £4,794, to which there will be added 8% VAT,
making a total of £5,177.
The choice,
therefore, is between £3,882 and £5,177. Again I have decided that it would be
more satisfactory to accept the costing of the man who proposed the particular
scheme, which I think a reasonable owner would have adopted and therefore I put
the cost of this remedial work at that proposed by Mr Jones and Mr Davis.
The next area
of wall which I must consider is that at D-D. The first question for decision
here is, what is the area which has to be repaired in order to remedy the
damage caused by the tree roots? Dr
Buttling’s view is that it will be necessary to repair an area of 10 m2.
The view of Mr Jones is that all that is required is to carry out remedial work
over an area of 4 m2. When speaking about this area, Mr James said
that there would have to be a certain amount of trial and error and that there
would be a risk element. He believed that 4 m2 would be adequate to
cover that work.
Mr Davis, who
was plainly very familiar with problems of this kind, told me that in the last
three months he had instances where he had cut out pockets in walls similar to
this and had refaced them. The area which would be required to be dealt with,
in his opinion, would be in the region of 2 m, but it would be possible that it
might become necessary to take down more than 2 m. As to the proposed 10 m
demolition of which Dr Buttling spoke, Mr Davis’ view was that that, in effect,
would be a demolition of a large section of the wall and, as I understood him,
much larger than was necessary for the particular area of bulge.
In my view, Mr
James and Mr Davis spoke as practical men who had often dealt with problems of
this kind — it being a far from uncommon problem — and that, though I respect
the engineering view of Dr Buttling, in the end I prefer the views of the
practical men. Thus it is necessary to find the cost of attending to 4 m2
on the wall in the area of this bulge.
Mr James
costed this work at a sum of approximately £500 which, when reduced to 1977
prices plus professional fees of 10% and 8% VAT, reached a figure of £395. The
figure which Mr Davis put on this work at 1977 prices, taking into account 10%
contingency costs, 10% professional fees and 8% VAT, amounted to £324. Taking
into account that Mr James was a builder and would, in my judgment, more probably
be able to cost this work more accurately, I would prefer his figure of £395.
I come now to
the cost of remedial work at the Poples Well end of the wall. Mr James put a
price on this of £1,864, to which would have to be added a contingency cost of
10%, supervision at 10%, and then reducing that total figure to the 1977 prices
by the appropriate factor and adding 8% VAT, one reaches a total of £1,623. The
area in question, which Mr James in his estimate (D10) claims it is necessary
to remedy, is 5.55 m of wall, 2.3 m high. Another estimate which I have been
given in respect of this part of the wall is that given by Mr Shoemark. He
quotes for the demolition of the wall to the area of the sunken spring
catchment area giving the measurements 3 m by 2.3 m. For this work he quotes
£773.40. Mr Davis, in D2, gives the area that requires to be attended to as 5.5
m by 2.3 m high. In these circumstances the preponderance of the evidence is
that the area of
for. In D2 Mr Davis sets out a number of items and costs them, which appear to
relate to the remedial work necessary at Poples Well. The total of these items
are in the region of £1,300. His overall figure, therefore, is less than that put
forward by Mr James. However, I was not referred to those figures and it would
seem that in any event the proper figure to look at is that put forward by Mr
James, the builder who was quoting for the actual work that he considered
necessary to be done.
The total,
therefore, for the remedial work to the three sections of the wall is £5,900.
I now turn to
the authorities on the proper measure of damages in an action such as this;
that is to say, where a client of a surveyor has suffered loss as a result of
negligence and breach of duty on the part of the surveyor in making a survey of
property on behalf of his client.
The principal
authority to which I have been referred is Perry v Sidney Phillips
& Son, a decision of the Court of Appeal given on July 14 1982, the
report of which before me is in the form of a transcript of the
judgments.* I might mention at this
point that one of the reasons for the adjournment of this trial on June 25 last
was that it would be necessary to await the hearing of the appeal in Perry
v Sidney Phillips & Son in order to have an authoritative statement
upon the law applicable to such facts as these. In Perry v Sidney
Phillips & Son the defendants surveyed property on behalf of the
plaintiff, the buyer of a house, and made a report to him. They omitted to
discover that there were serious defects in the roof and in the septic tank.
The trial judge found that the appropriate measure of damages was the cost of
repairs of the defects which a proper inspection by a reasonably competent
surveyor would have brought to light, rather than the difference between the
purchase price and the value of the property, as it ought to have been
described. The Court of Appeal reversed the trial judge on this point. At p 4
of the transcript, Lord Denning MR said:
Where there
is a contract by a prospective buyer with a surveyor under which the surveyor
agrees to survey a house and make a report on it — and he makes it negligently
— and the client buys the house on the faith of the report, then the damages
are to be assessed at the time of the breach, according to the difference in
price which the buyer would have given if the report had been carefully made
from that which he in fact gave owing to the negligence of the surveyor. A
surveyor gives no warranty that there are no defects other than those in his
report. There is no question of specific prformance. The contract has already
been performed, albeit negligently. The buyer is not entitled to remedy the
defects and charge the costs to the surveyor. He is only entitled to damages
for the breach of contract for negligence.
*Editor’s
note: reported at [1982] 1 WLR 1297; (1982) 263 EG 888, [1982] 2 EGLR 135.
Lord Denning,
later in his judgment, said:
So you have
to take the difference in valuation. You have to take the difference between
what a man would pay for the house in the condition in which it was reported to
be and what he would pay if the report had been properly made showing the
defects as they were. In other words, how much more did he pay for the house by
reason of the negligent report than he would have paid had it been a good
report? That being the position, the
difference in valuation should be taken at the date of the breach.
The Master of
the Rolls referred to two previous authorities, Philips v Ward
[1956] 1 WLR 471 and Simple Simon Catering Ltd v Binstock Miller
& Co (1973) 228 EG 527. Mr Griggs, at the outset of his argument,
accepted that I am bound by the decision in Perry v Sidney Phillips
& Son and in Philips v Ward. It is, I think, necessary
also to refer in a little detail to Philips v Ward. In that case
the defendant, a surveyor, had been engaged to survey and advise the plaintiff
on the structural and general condition of a house which he proposed to buy,
and the surveyor negligently overlooked the fact that much of the timber of the
house was badly affected by death watch beetle and worm. The plaintiff paid the
sum of £25,000 for the property and at the time of his purchase the cost of
repairing the house would have been £7,000. The other figure found was that the
value of the property at the time of purchase with the defects was £21,000. The
Court of Appeal held that the measure of damages was the difference between the
fair value of the property if it had been in the condition described in the
defendant’s report (that is to say, £25,000), and its value in its actual
condition (that is to say, £21,000), and accordingly the amount recoverable was
£4,000. At p 474 Lord Denning MR said:
So also in
this action, if [the plaintiff] were to recover from the surveyor £7,000 it
would mean that [the plaintiff] would get for £18,000 (£25,000 paid less £7,000
received) a house and land which were worth £21,000. That cannot be right. The
proper amount for him to recover is £4,000.
At p 476
Morris LJ said:
If the
plaintiff had discovered the omissions or errors in the defendant’s report
before he had contracted to buy, then it may be that he would not have
proceeded with his projected purchase. If he had wished to proceed and had
received an estimate of £7,000 as being the cost of doing work restoration, it
may be that he would have offered £18,000 and would have urged that that was an
appropriate figure to pay having regard to the fact that he would have to spend
£7,000. But the finding in this case shows the property was, at the time of the
sale, actually worth £21,000. Accordingly the owner would have not been likely
to sell for £18,000 property which was worth £21,000. It might at first seem surprising
that the reduction in value below £25,000 should be less than the cost of
executing the necessary work. But, apart from the fact that this was the
finding of fact based on the general evidence given at the hearing in regard to
valuations, it is to be remembered that property in which there is extensive,
new work by way of repair or restoration may have an increased life and may
acquire an enhanced value. In the present case, if the repair work costing
£7,000 had been done in 1952, it seems very likely that the roof would then
have been put into a condition so that it would last longer than it would have
lasted had it been an old roof, though an old roof not impaired by the ravages
of the death watch beetle. Similar considerations might apply in regard to the
replacement of the main timbers of the house. Furthermore, the effecting of the
repair work costing £7,000 would most probably have had the result that the
annual cost of upkeep of the property would be diminished. But the plaintiff
must not be placed in a better position by the award of damages than he would
have been in had the defendant given a proper report.
Romer LJ, at p
477, put it in this way:
As an
alternative to deciding not to buy the house with knowledge of its defects, he
[the plaintiff] might have made up his mind to purchase it at the reduced value
of £21,000 and carry out the work which had to be done at the cost of £7,000.
In that event he would have had to spend £28,000 instead of the £32,000 total
expenditure which resulted from his buying the property on the faith of the
defendant’s report. On this hypothesis also, then, his position was worsened to
the extent of £4,000, namely, the difference between £28,000 and £32,000.
It is clear,
therefore, that the correct measure of the plaintiff’s loss on these
authorities is the difference between the price he paid and the price he would
have paid if the defendant had given a proper report. I shall shortly be
turning to the evidence on this point.
But before I
come to the evidence on that point, it is necessary that I should consider the
submission made by Mr Griggs that I should not disregard the cost of repairs to
the wall. The question was, how does one arrive at the diminution in
value? He submitted that the way to do
that was through a consideration of the cost of repairs. He drew my attention
to a number of authorities. The first was Wigsell v The Corporation
of the School for the Indigent Blind (1882) 8 QBD 357. In that case the
grantees of land had covenanted to build a wall. They did not do so and an
action for damages was brought against them for breach of covenant. It was held
by the Divisional Court that the true measure of damages was the pecuniary
amount of the difference between the position of the plaintiff upon the breach of
covenant and what it would have been if the contract had been performed. The
court held also that the cost of building the wall was not the correct measure
of damages. However, on similar facts, Oliver J, in Radford v De
Froberville [1977] 1 WLR 1262, held that the correct measure of damages was
the cost to the plaintiff of erecting a wall on his own land and not the amount
by which the plaintiff’s land as an investment property was diminished by the
absence of the wall: he applied Tito v Waddell [1977] Ch 106. In Grove
v Jackman & Masters (1950) 155 EG 182, in which the plaintiff
claimed damages against the defendant surveyors for negligence in a survey of
property which the plaintiff subsequently bought, Lord Goddard CJ held that the
measure of damages was, inter alia, the cost of repairs. Mr Griggs cited
another case on similar facts, Leigh v William Hill & Son
(1956) 168 EG 396, but I do not derive much assistance from that case. The
Court of Appeal refused to interfere with a finding that the measure of damages
for a surveyor’s negligence was the cost of repairs, it would seem on the
ground that no evidence had been given to the presiding judge at the Liverpool
Court of Passage as to the difference in the value of the house with, or
without, the defect complained of. It was in those circumstances that the Court
of Appeal refused to allow the question of damages to be reviewed because of
the decision of the Court of Appeal in Philips v Ward.
The case which
most supported Mr Griggs’ contentions that the cost of repairs must be
considered is Freeman v Marshall & Co
had been negligent in advising the plaintiff on the purchase of property. The
report on the question of damages reads:
So far as
damages were concerned in the present class of case, all he (the judge) had to
do was to read the headnote of a case in the Court of Appeal, Philips v Ward
(1956). That case said that the measure of damages was the difference between
the fair value of the property if it had been described in the defendant’s
report and its value in its actual condition. On that basis it followed that
the real value of the property was £13,500 less the cost of the repairs. The
cost of the repairs was £550 and that was the sum he would award plus £147 for
loss of rent.
The facts, as
reported, do not indicate that there was any particular reason that caused
Lawton J to reach the real value of the property by deducting the cost of
repairs.
I come now to
the evidence as to the differentiation in values. Mr Southwell, a chartered
surveyor practising in the South Somerset area, was of the opinion that in
order to reach the correct value of the property as at 1977 the only way was to
deduct the cost of repairs from the price paid by the plaintiff. Having been
given the cost of repairs in the region of £17,000 he would deduct that from
the £27,000 paid by the plaintiff.
There was
called on behalf of the defendant a Mr A Barrett, who was a partner in the firm
of estate agents who, together with another firm of estate agents, had been
jointly instructed by the vendors to sell this property in July 1977. Mr
Barrett was, therefore, familiar with this house and land, though he made no
particular note as to the state of the wall. His evidence was of particular
importance with regard to the diminution in value by reason of the state of the
wall, and he acted on the assumption that a sum of the order of £7,000 would
have to be spent upon it. He was of the view that, in order to reach 1977
prices, one would have to make an allowance for an increase of some 60%, though
in view of the other evidence I have, as I have referred to before, accepted
one should take into account an increase in prices of some 50%. Mr Barrett
expressed a view that, taking 1977 prices, the diminution in value by reason of
the state of the wall would have been a sum of £2,500 to £3,000. He dealt with
these matters in a report marked D7 and also very fully in his evidence and he
made the point, which seems to me to be eminently reasonable, that where a
prospective purchaser finds that a sum of money has to be expended upon the
property which he wishes to buy, he would expect there to be a reduction in the
asking price, but that he would be most likely, being desirous of acquiring the
property, to accept some of the risk himself. Mr Barrett’s view was that, in
circumstances such as these, a purchaser might well have accepted up to 25% of
the risk of expenditure upon the property.
As I have
said, Mr Barrett’s evidence was fully and carefully tested, and I have formed
the conclusion that a reasonable approach to a problem such as this is to
accept the point of view that a purchaser, though he would seek a reduction in
the price asked, would nevertheless be prepared not to insist upon a full
reduction on the basis of the proposed cost of repairs, but would be prepared
to negotiate about the matter. I do not think, therefore, that the proper
approach is to reach the diminished value by merely deducting the cost of
repairs as they would have been at the time of the purchase. I have, therefore,
to try to relate that view to the facts of this case, having regard to the
plaintiff and all that I know about him, particularly at the time of the
purchase, and on the assumption (though this must be a matter of assumption
because I have not heard the evidence of the vendors, a Mr and Mrs Pickles)
that they, the vendors, would have been prepared to reduce the asking price in
order to take some account of the expenditure that would be necessary on the
boundary wall. Bearing in mind the price paid by the plaintiff and the cost of
repairs which I have assessed and relating the one to the other, I would have
thought that this is a case where the plaintiff might have consented to take
the risk of 25% of the cost of repairs and have then asked for, and obtained, a
reduction of the purchase price by the remainder. His honest answer was that,
if he had been advised that a technical report on the wall was required, with
hindsight he probably would not have bought the property.
Returning to
the diminution in value of £2,500 to £3,000 given by Mr Barrett, Mr Southwell
would not agree that, given repairs costing £7,150, the diminution value would
only be £2,500 to £3,000. This was, of course, because he would deduct the cost
of repairs. Both these experts valued the property today (without necessary
repairs to the wall) at about £57,500. With repairs at £7,150 Mr Barrett would
put the value in excess of £50,000, whereas Mr Southwell would put it at about £50,000.
I have
assessed the cost of repairs at 1977 prices at a total of £5,900. I have
pondered on the problem whether that could be a fair assessment of what would
have been spent in 1977. The state of disrepair in 1977 would not necessarily
be the same as that seen in 1980 to 1981. In fact, it must have been less to
some degree. However, the areas in need of repair, though maybe not in such a
state of disrepair, would still, in all probability, have required the same
amount of work: in other words, I do not consider that the further
deterioration would have resulted in extra work. In any event, I have no
evidence that it would have done so.
Therefore,
taking the cost of £5,900, making an allowance for the 25% which I believe the
plaintiff, in all probability, would have accepted, the reduced figure is
£4,425. I follow the principle (1) that in cases like this the measure of
damages is the difference between the fair value of the property in the
condition accepted by the plaintiff in reliance on the defendant’s report and
its value in its actual condition: I follow the principle (2) that you do not,
in a straightforward case, take as the measure the cost of repairs found
necessary to put the property in the represented condition. But, in order to
arrive at the actual value in this case, ie with the wall in need of repair, I
feel that I am bound to have regard to the cost of repair and then make an
allowance of 25%. It seems to me that to do so reflects the views expressed by
Morris LJ and Romer LJ in Philips v Ward. It makes an allowance
for the fact that, on the assumption the plaintiff has the wall put in a sound
condition, he is getting, as the result of repair, something better than he
would have had if the wall had been an old wall in a stable condition. His
liabilities for future repair would be less as the wall would have an
‘increased life’. Put another way, if the plaintiff got as damages the full
value of the repair work, he would be receiving from the defendant a betterment
value for which the defendant should not be liable.
I therefore
judge the defendant’s liability to be in the sum of £4,425.
Finally, there
is the plaintiff’s claim for damages for distress, vexation and worry resulting
from the alarming cost he was advised was necessary to put the wall into a
stable and safe condition. There had been the worry, for instance, of possible
consequences to the public from a possible collapse of the wall. As pointed out
in Perry v Sidney Phillips & Son, the damages under this
heading may not be very substantial and in this case I do not think that they
should be. It has not been argued that the plaintiff did not take reasonable
steps to mitigate his loss, and, in view of Perry v Sidney Phillips
& Son, I do not consider it could be argued here. I would award damages
under this heading in the sum of £500.
