Rainwater flooding plaintiff’s premises from adjoining premises — Defects repaired — Defendant acquiring property — Plaintiff claiming damages from defendant for continuing nuisance — Defendant appealing against award of damages — Appeal allowed by majority
Since 1981, the plaintiff had been the owner of Oaklands Cottage, Penarth, South Glamorgan. It was built onto a former coach house. When the original writ was issued the defendants — other than the appellant, P, the sixth defendant in the present proceedings — were owners of the coach house. The coach house had been divided into four garages and the cottage had been built at a right angle on the coach house’s rear wall. The dividing wall became damp over a period of many years due to the defective state of the coach house roof and of a chimney which served the loft above one of the garages. There was an actual incursion of water into the cottage in 1987 after heavy rainfall. Repair works were carried out in May 1989 to make the roof watertight and were effective so far as dampness was concerned. The plaintiff had brought the action claiming damages in nuisance.
P had no interest in the coach house and no responsibility for its bad condition at that time, but he bought it in its entirety from all the former owners in 1990 with a view to converting it into a dwelling-house. He purchased it with full notice of the proceedings and agreed to indemnify his vendors against 90% of any damages which they might be ordered to pay to the plaintiff in action. The plaintiff alleged the P was liable in nuisance for the state of affairs which existed in 1990 when he bought the property and had continued since then. P was ordered to pay damages of £12,500 plus interest as the estimate of the cost of, inter alia, “reasonable repairs necessary to … make good the damage cause by percolation of water from the … premises”. P appealed.
Held The appeal was allowed.
1. There was evidence that the condition of the walls, ie rotting woodwork and perished mortar, had been the same condition for many years. There did not seem to be any evidence of bulging or lack of alignment and the evidence did not show that the wall was in imminent danger of collapse. All that could be said was that the wall was not in such a good state of repair as it ought to have been, but that did not show that it was a continuing nuisance.
2. The necessity for imminent danger was illustrated in Leakey v National Trust [1980] QB 485.
3. Even if there were in fact a continuing nuisance for which P was liable, there were very considerable difficulties in the award of damages for such nuisance. There was no obligation on the plaintiff to do the work and there was nothing to prevent him from pocketing the damages, selling the house and leaving P exposed to a claim for damages at the suit of the purchaser.
4. The authorities showed that if damages were to be awarded then they were in lieu of an injunction or alternatively in support of the plaintiff’s right — in cases of sufficient urgency — to enter upon the defendant’s land and to abate the nuisance there.
5. Per Dillon LJ: The judge was entitled to regard the present state of the wall as a potential danger or nuisance to be cured or abated. The court would have the power to put the plaintiff on terms to carry out the works specified if the damages were paid.
Mr Peterson appeared in person; Crispin Masterman (instructed by Alan G Fraser, of Penarth) appeared for the plaintiff/respondent.
