Claim by house-owners against local authority for damages for alleged negligence or breach of duty by authority on the ground of failure by their servants or agents properly to inspect or otherwise to ensure that the foundations of the plaintiffs’ house were properly constructed — Anns v Merton London Borough — House sustained minor damage from subsidence — Shallow foundations were based on a six-inch layer of silty clay, containing organic matter interspersed with tree roots — Held that authority’s inspector had been at fault but action against authority failed because, as stated by the House of Lords in Anns case, a cause of action of this kind arises against a local authority only where the state of the building is such that there is present or imminent danger to the health or safety of persons occupying it — This requirement was not satisfied in the present case — A question raised, but in the circumstances not decided, was whether the defendant local authority would have inherited liability (if a cause of action had arisen) from its predecessor, Axbridge Rural District Council, although no damage had manifested itself at the date of transfer — Judgment for defendants
The plaintiffs
in this action, Mr and Mrs Bluett, claimed damages against the defendants,
Woodspring District Council, on the ground that the plaintiffs had been put to
expense by the need to carry out works to strengthen the foundations of their
house, Green Finches, Church Lane, Weston-super-Mare, Avon. They alleged that the
defective foundations were due to negligence or breach of duty by the council
in failing to inspect the foundations or to make sure that they conformed with
proper standards.
Crawford C D
Lindsay (instructed by Laurence, Messer & Co) appeared on behalf of the
plaintiffs; Philip Naughton (instructed by Rowberry, Morris & Co)
represented the defendants.
Giving
judgment, JUDGE STABB said: In this action, the plaintiffs, as owners of a
house known as Green Finches, Church Lane, Hutton, Weston-super-Mare, Avon,
claim damages from the defendant district council as successors of the Axbridge
Rural District Council for the alleged failure of that council’s servants or
agents properly to inspect or otherwise to ensure that the foundations of the
house were constructed so as to comply with the provisions of the building
regulations and/or to conform with the plan which the council had approved
and/or were of sufficient depth having regard to the prevailing subsoil and
site conditions. By reason of such failure the plaintiffs claim damages of just
over £5,000, being the cost and expense of carrying out underpinning work to
the foundations.
The defendants
deny any negligence — alternatively, if negligence is proved, they deny that
any damage flowed from it in the sense that it was not proved that any
settlement of the structure had resulted; or they claim that, if settlement had
occurred, it was not sufficiently serious to justify work of underpinning. They
also raise a defence that, in the circumstances of this case, they inherited no
liability from the Axbridge Rural District Council.
The facts were
hardly in dispute. This two-storey detached house was built at the end of 1969
by contractors who are now in liquidation. The Axbridge Rural District Council
were the local authority concerned, who had the statutory powers under the
Public Health Act 1936 of approving plans and ensuring that the building
regulations were complied with — for which purpose they were empowered to make
inspections.
On June 26
1969 they approved a plan drawn up by Ernest Tew & Partners. If this plan
was to scale, it appeared to provide for foundations to a depth of 2 ft 6 in.
The defendants did not call any building inspector to give evidence as to any,
and if so what, inspections of the foundations were carried out — but there was
an agreed plan in evidence and on that plan appeared a note: ‘Plot 3. Footings
satisfactory’ and then the initials ‘SP.’
I am satisfied that someone on behalf of the Axbridge Rural District
Council inspected the foundations at some time in 1969.
In October
1972, the plaintiffs purchased the house. They moved in with their three
children in January 1973. The house had been empty and unoccupied for quite a
time and was, naturally, somewhat cold and damp. Accordingly, Mr Bluett, when
he moved in, turned on the central heating and this caused a noticeable degree
of condensation, but did not have any other noticeable effects, such as
cracking. This is important, because the defendants’ expert maintained that the
cracks which did subsequently occur were due to thermal movement of the
structure.
Mr Bluett told
how, in 1975, cracks began to appear round the south-facing window and the
west-facing French windows in the lounge. He said that they gradually grew and
spread. The first cracks got longer and wider, increasing in length from 2 ft
to 5 ft and from hairline to 1 ft 4 in. In October 1976 a Mr Ventham, a
structural engineer, was called in and he carried out an inspection. He knew,
of course, that 1975-76 had been a period of drought. He observed that there
were three large mature trees comparatively near to the house: a cedar, 11m
high, was 4 1/2m from the south-east corner of the house; a mulberry tree, 12m
high, was 9m from the south elevation and a wellingtonia, 15m high, was 7 1/2m
from the west side. Trial holes were dug, and it was discovered that the
foundations only went down about 18 in and were based on what appeared to be a
6 in layer of organic soil, including roots of various sizes and, below this,
was a firm red marl. There were tree roots in this layer of so-called organic
soil. The defendant council were informed. They carried out inspections in
October and November 1976 and in letters, which were passed to Mr Ventham, they
maintained that there was no evidence that the foundations had failed. It was
not until 1978 — two years later — that Mr Ventham recommended that the
foundations should be underpinned and this work was carried out between October
and December of 1978 at a cost of £4,673.
While the work
of underpinning was proceeding samples of the organic soil and of the red marl
were taken and sent for analysis. The
fact, a dark brown silty clay, with some stones and some organic matter
including roots. The underpinning pads went down to a depth of approximately
one metre and at this level the red marl was described as hard and firm. Tests
on the samples of dark brown silty clay with organic matter revealed that it
was of low-to-intermediate plasticity and in the low-to-intermediate-shrinkage
range. It is to be observed that these tests were carried out when the
underpinning work was already being done and not before.
Mr Ventham did
not record the width and length of the cracks; nor did he monitor them in any
way to measure their progression between 1976 and 1978, although he did say
that they appeared to have deteriorated. Photographs were taken of the
principal cracks, which were at the junction of the lintel and wall over the
French windows in the lounge and a vertical crack under and above the
south-facing window in the lounge — but the crack did not appear to extend to
the bedroom above. I had before me a plan of the house, on which had been
indicated cracks at the junction of wall and ceiling and what were called
extensive vertical cracks, of which there was one on the first floor and only
the two to which I have already referred in the lounge of the ground floor.
There was
evidence of minor cracking in the external wall of the south elevation. A level
survey indicated that the south and south-east end of the house was
approximately one inch lower than at a point approximately equivalent to the
north wall of the lounge. The house was constructed with blockwork cavity
walls. Externally the rigidity of the construction is broken up by windows,
with lintels above, and areas of vertical hanging tiles. The surprising feature
of the evidence was the absence of cracks in the external wall which
corresponded with the vertical cracks on the internal wall in the lounge, which
went through the blockwork of the inner skin. Both internal and external walls
were based upon the same foundations and one would have thought that settlement
of the foundations such as to cause cracking of the blockwork in the internal
wall would have had the same effect on the external wall. Certainly, this house
did not display the classical signs of settlement cracks, but it may well be
that the absence of rigidity in the external wall construction, to which I have
already referred, was responsible for this. Mr Ventham admitted that the
excavations which were carried out did not reveal any fracture of the
foundations themselves.
Mr Austin,
also a structural engineer, employed by loss adjusters, inspected the house in
December 1981 by which time, of course, the underpinning work had long since
been done. But he had Mr Ventham’s report and the description of the cracks and
the results of the soil analysis. He was of the opinion that the damage to the
house was not caused by subsidence, that the ground could safely bear the house
loading and that the damage must have been due to shrinkage and thermal
movement. He considered that the cracks were not severe enough to constitute
settlement cracks and that they did not display the typical characteristic to
be found in settlement cracks, of being fine at the bottom and wider at the top
and he considered that, even if the damage was caused by subsidence, it was not
sufficiently serious to justify underpinning in that there was no risk of the
structure becoming unstable and that superstructural repairs were all that were
required.
I have
considered the evidence very carefully and I have come to the conclusion that
the damage was caused by subsidence. I do so largely because I cannot believe
that a house built in 1969 would first show evidence of thermal movement in
1975-76, more particularly because it showed no such evidence in 1973 when it
was subjected to central heating when damp and cold after it had stood empty
for some three months. It is too much of a coincidence that when cracks first
appeared after the drought period in 1975-76, investigations disclosed that the
foundations were found to be much shallower than normal and based upon a 6 in
layer of silty clay, containing organic matter, interspersed with tree roots,
albeit of only low or intermediate shrinkage potential.
I think that
the truth of the matter is that there was some shrinkage of that layer of silty
clay, which was only 18 in below ground level, through the extraction of
moisture by the tree roots and that this caused what I should describe as minor
subsidence at the southern end of the house, where the trees stood. The damage
was not typical because of the lack of rigidity in the type of construction
which had been used and my attention was drawn to the Building Research
Establishment Digest, concerning the assessment of damage caused by foundation
movement. There is there set out in tabular form the various categories of
damage. I bear in mind that the question of whether the damage will be
progressive is of great concern; but I do not consider that the damage in this
case was likely to be progressive. I am quite satisfied that the condition of
the house before the underpinning work was executed in 1978 did not give rise
to a present or imminent danger to safety or health of the occupier: and
although the foundations had been laid on ground that was not, in my view,
suitable, I do not believe that the stability of the house was ever in any
danger or that the damage in the house was ever more than relatively
superficial. I think that if I were required to do so, I should place it within
category 2 of the table in the digest to which I have referred.
In that digest
there is a paragraph which deals with the classification of damage and the
writer divides damage into three broad categories, namely, aesthetic, and what
he calls serviceability and, finally, stability and he says:
Of course,
the classification relates only to visible damage at a given time and not its
cause or possible progression which would be considered separately.
And he says:
Of course,
crack width alone can produce a misleading concept of the true scale of damage.
But he,
nevertheless, divides up the types of damage into five categories. He says:
For most
cases, categories 0, 1 and 2 can be taken as representing aesthetic damage;
categories 3 and 4, serviceability damage and category 5, stability.
He says:
It is the
cause, of course, of the damage and whether it will be progressive that is our
great concern. For domestic dwellings, which constitute the majority of cases,
damage at or below category 2 does not normally justify remedial work, other
than the restoration of the appearance of the building.
And of these
categories, where the lowest of all under the heading of ‘degree of damage’ he
classes as ‘negligible’, which is simply hairline cracks of less than 0.1mm —
that obviously is negligible damage.
Category 1,
where he describes the damage as ‘very slight’, is where there are to be found
. . .
Fine cracks
which can easily be treated during normal decoration, perhaps isolated slight
fracturing in the building, with cracks rarely visible in external brickwork,
with the width of the cracks up to 1mm.
And category
2, into which I place the damage in this case is described as ‘slight’ and he
describes the cracks as being
Easily filled
— redecoration probably required. Recurrent cracks can be masked by suitable
linings; cracks not necessarily visible externally; some external repointing
may be required to ensure weather-tightness; doors and windows may stick
slightly.
— and he
describes the cracks as being up to 5mm, which more or less fits the widest of
the cracks in this instance. And as an example of category 5, where he regards
the stability of the house as being affected, he describes the damage as
Very severe,
with cracks usually greater than 25mm but it depends on the number of cracks
and this, of course, requires a major repair job, involving partial or complete
rebuilding.
I am satisfied
that a representative of the Axbridge Rural District Council did inspect the
foundations and that he was at fault in permitting the foundations to be taken
down to a depth of only 18 in, where the ground was still a silty clay
containing organic matter and roots from nearby trees, more particularly when
the plan, if scaled off, appeared to show foundations to a depth of 2 ft 6 in,
which would have been into firm, red marl and which would have provided sound
and solid support for the house. But, although I think that the local council’s
inspector was at fault, I am obliged to absolve the defendants from liability —
if they inherited any liability — by virtue of the fact that it has been
clearly laid down by the House of Lords in Anns v Merton London
Borough [1978] AC 728 that a cause of action against a local authority
arises only when the state of the building is such that there is present or
imminent danger to the health or safety of persons occupying it.
This is the
first time that such a set of circumstances has come before me for decision,
and I confess to a certain hesitancy in reaching what would appear to be the
somewhat illogical conclusion that the council’s negligence does not amount to
a breach of duty giving rise to a cause of action, because the effect of it was
not such as to imperil the safety or health of the occupier of the house. It is
true that I have held that the extent of the work which was undertaken to
remedy the damage caused by the negligence of the council’s servant was not
justified. Nevertheless, to find, as I must, that the plaintiffs have no cause
of action does not seem to me to accord with what Lord Salmon stated in Anns
at p 767, where he said this:
I do not
think that there is any danger that the responsibility which, in my view, lies
upon the council is likely to lead to any flood of litigation. It is not a
common occurrence for foundations to give way, or for their inspection to be
negligently carried out. If the foundations do give way, there is no warranty
by the council which has inspected them that they are sound. The council is
responsible only if it has exercised its powers to inspect; and the defects in
the foundations would have been detected by an inspection carried out with
reasonable care and skill. It seems to me to be manifestly fair that any damage
caused by negligence should be borne by those responsible for the negligence,
rather than by the innocents who suffer from it.
The
explanation, of course, may be that the learned law lord, when he referred to
‘any damage’ in that passage, must be taken to have been referring to ‘any
damage which constitutes a danger to the health or safety of the occupier’,
because the council’s duty of care, where an inspection is carried out, appears
to be restricted to securing that the builder provides foundations which,
though they may not be adequate in the sense that they may not comply with the
byelaws or building regulations, yet will not give rise to danger to the health
or safety of the occupier.
Mr Crawford
Lindsay, on behalf of the plaintiffs, urged that the steps which the plaintiffs
took were reasonable in that they followed the professional advice of Mr
Ventham which, in itself, could not be branded as negligent, since there was
room for a difference of opinion as to the remedial work that should be done —
and, as the plaintiffs acted reasonably, the defendants cannot be heard to
complain if, in fact, the plaintiffs overreacted in the situation in which they
found themselves when, as I have found, the situation was brought about by the
fault of the council. I have a great deal of sympathy for that view, but it
seems to me that once I have found that the defect in the foundations did not
imperil the plaintiffs’ health or safety, no cause of action has arisen, and
the plaintiffs’ claim must inevitably fail.
Having reached
that conclusion, plainly it is unnecessary for me to decide the point, raised
in the very interesting argument, as to whether the defendant council ever
inherited this liability from their predecessors, having regard to the fact
that at the time of the transfer no damage had been manifested and,
accordingly, no cause of action had arisen at that time. Mr Naughton, on behalf
of the defendants, in his very able argument, contended that as no liability
had as yet arisen, no liability had as yet been incurred and, therefore, there
was no liability then to be transferred — only an unenforceable obligation. If
it had been necessary to decide, I should have concluded that the transfer of
all liabilities referred to in art 9(4) of the Local Authorities (England)
(Property etc) Order 1973 (SI 1973 no 1861) was intended to transfer all
liabilities for which the previous council would have been responsible — but
this is a matter which may have to be decided on another occasion. So far as
this claim is concerned — having regard to my findings — as I have already
indicated, the claim must inevitably fail.
Judgment was
given for the defendants, with costs.
