Important decision on liability for damage claimed to be due to tree roots extracting moisture from the soil–Extensive damage to block of flats–"Building has broken its back"–Contention by defendants that foundation movements were due to unsatisfactory footings and defective storm water drains–Expert evidence on action of tree roots on "London clay"–Shrinkage, swelling or "heave"–Plaintiffs’ claims upheld–Discussion on assessment of damages and mitigation
This was a
consolidated action by the occupiers of a number of flats at Rosary Court,
Potters Bar, Herts, against Hertfordshire County Council and Alfred Harry,
solicitor, the owners of adjoining properties, claiming damages and an
injunction in respect of severe structural damage to their flats, alleged to be
due to nuisance arising from the action of the defendants’ trees in depleting
the moisture of the soil.
Quentin
Edwards QC and M Brooke (instructed by Male & Wagland, of Potters Bar)
appeared for the plaintiffs; M Turner QC and W Crowther (instructed by
Berrymans) represented the defendants.
Giving
judgment, JUDGE GIBBENS said: Towards the end of 1958 a small building project
was carried out by Heron Construction Ltd on the site of the former Rosary
Convent, Church Road, Potters Bar, Hertfordshire. Three small buildings were
erected in a group called Rosary Court and each building comprises three pairs
of flats one above the other, and each having its own separate entrance on the
ground level, which is why, I suppose, the developers called them maisonettes.
This action concerns only the building containing the flats numbered 9 to 14,
to which I shall hereafter refer as block C. It lies furthest from the main
road. The convent had been surrounded by fruit trees and by mature tall trees
on well-wooded, sloping ground, with the decline running down roughly from east
to west. Rosary Court had been built on that ground, which had been benched
back–to use the term that Mr Haswell taught me–probably before the convent was
built. It was still on a slight slope, however, down to the west.
At all
material times the Hertfordshire County Council were, and are still, the owners
and occupiers of land contiguous with the eastern boundary of Rosary Court
which accommodates their school premises known as Mount Grace School. Along
that boundary stood a row of tall trees which had been there long before block
C was built. Also at all times material to this case Mr Alfred Harry, the
second defendant to this action, had been (and remains) freeholder of Rosary
Court and in particular of a sliver of land on which stand two trees, an oak
and a rowan, to the west of block C. Those were the only trees on the land of
Rosary Court when the buildings were erected. The buildings were completed in
the first half of 1959, and the first of the plaintiffs to occupy their
respective flats were Mr and Mrs Peters and PC Collman and his wife. They all arrived
in the late summer of that year. Within 10 years block C had been ravaged by
serious cracking of the structure. None of the plaintiffs’ leases contained any
covenant on behalf of the lessor to maintain or repair, but the lessees were
bound by full repairing covenants.
The eight
plaintiffs in this consolidated action launched in March 1972 are the
leaseholders and occupiers of their respective flats in block C. They claim
damages and an injunction against each of the defendants in respect of damage which
is admitted to have occurred, and which is alleged to be continuing, in their
flats due, they say, to nuisance arising from the action of the roots of the
defendants’ trees in depleting the moisture of the soil, for which each of the
defendants is liable. The county council deny that such was the cause of damage
to block C, and contend that it was due to the inadequate depth of the
foundations of the building. The second defendant, Mr Harry, makes no
admissions at all and goes on to plead that the sliver of land on which his oak
and rowan stand has been occupied by the plaintiffs in such a way as to
incorporate it in their leases and that they thus had become occupiers in his
stead. That latter plea is no longer persisted in, and Mr Turner has very properly
invited me to make no distinction between the defendants, so that if the
plaintiffs are entitled to judgment, it should be entered against both
defendants.
The issues
which this court must decide are these: (1) Was the damage to block C and its
component flats caused by the action of the roots of the defendants’ trees,
thus causing an actionable nuisance? (2)
If yes, are the defendants liable in damages, and how are the damages to be
measured? (3) If the defendants are
liable, is this a proper case for the grant of an injunction as claimed?
The layman’s
history of the damage to block C was, of course, given by a number of the
plaintiffs themselves. Constable Collman had not been long in residence in flat
no 10, which is on the upper storey of the east end, when he noticed a
horizontal crack along the east wall. It seemed to him to be the origin of a
deep crack in the side wall of his living room. On October 13 1959 he wrote to
Heron Construction Ltd informing them of those faults, and they later informed
him that remedial work had been done under that wall, although, strangely, he
does not now remember seeing any workmen or noticing any signs of work. It is
accepted that the foundations at that point must at that time have been
underpinned with mass concrete, but if it was as awful as Mr Haswell described
it in evidence, it may not have been so strange that Mr Collman was unaware of
the workmen’s makeshift activities. In my judgment that underpinning was very
crudely done, but it had no effect in promoting the settlement of the building;
indeed, I think that
Blumenthal did not notice any cracks in his flat, no 9, until the next very dry
summer in 1964. He did not regard them as serious at first, and attempted to
fill them in; nevertheless they reappeared after six months had passed. In
1964, too, Mr Bunclark, who had bought flat no 11 two years earlier, noticed a
crack running down the outside wall from his bathroom window towards the window
of flat no 12 below. He engaged a builder early in 1965 to replace the affected
bricks, but by 1967 the cracks had appeared again in almost the same place
together with cracks along his bathroom ceiling and from his lounge to his
kitchen. There was also a gross crack in the stair well. These cracks can be
seen as they are today in the plaintiff’s photographs 15 and 31 to 36. He says,
and I accept, that after 1969 more cracks appeared and the earlier cracks grew
worse. In 1969 Mr Blumenthal had his flat redecorated so as to let it while he
went to Kenya for six months. When he left his home in the autumn he noticed no
cracks, but on his return in April 1970 he found that the former cracks had
reappeared in the wall. He tried filling them in again, but they kept
reopening, and he says he "had a running battle with the cracks"
until at last the ceiling of the kitchen fell down. Miss Poulton, flat no 14 at
the western end, arrived in late 1963 and within three months had some
decorations done. She then noticed a crack in the ceiling of the lounge, and in
1965, when her front bedroom was redecorated, she noticed considerably bigger
cracks in the plaster along the wall and beside the window. Cracks were seen
when the wallpaper was removed. All these were made good by the decorator. In
1968, however, more cracking was found in the back bedroom, kitchen, hall and
bathroom, and in 1970, when the lounge was again redecorated, she observed that
the cracks seen in 1963 had opened up again, though only slightly. In addition
she found a slight break in the plaster on the back wall of the bathroom, which
corresponded with the external cracks seen in a photograph exhibit. Eventually
in 1969 Constable Collman and his wife were desirous of selling flat no 10, but
the proposed sale fell through because the intending purchaser’s surveyor
reported unfavourably on the building; consequently the building society
concerned refused to advance the required money. So Mr and Mrs Collman had to
abandon the purchase of a new home to which they had intended moving. Mr
Collman, an alert man, then sought the advice of Mr G Mason, a surveyor and
senior assistant in the firm of Taylor & Melhuish, first on his own account
and later on behalf of all the leaseholders. Acting upon that advice he
consulted Pynford Design Ltd, who have been described by Mr Halstead in
evidence as the leading underpinning contractors in the country. Those experts
inspected the site and block C on March 18 1969, and their report dated April 9
1969 has been accepted in evidence. They reported that in their opinion damage
had been done mainly by the extraction of moisture from the ground by the trees
on the county council’s adjacent land. That was the first time that any of the
plaintiffs knew of the significance of the damage by cracking of the structure
and of its possible cause. The damage has continued to worsen, and its recent
state may be seen in the photographs produced by the parties and also in a very
helpful crack survey plan produced by Mr Haswell.
On December 7
last, at the invitation of the parties, I visited the site to inspect the
present condition of the premises and I was shocked to see it. The impression I
gained was worse than had been conveyed to me by the mere photographs.
The
plaintiffs’ case being that the damage was the result of the action of the
roots of the defendants’ trees extracting moisture from the soil supporting
block C, which they do more greedily when the ground is especially dry, it must
be noted that the particularly dry summers in the relevant period occurred in
1959, 1964, 1969 and 1973. In my judgment the principal milestones in the
development of the damage occurred during or soon after each of those summers;
there was no significant worsening in between. On the other hand it seems–and
the relevance of this point will be appreciated later–that between the dry
summers the cracks did not tend to close at all when moisture was returned to
the soil in rainy periods.
The
determination of the issues of fact in this case turns very largely on the
evidence of the expert witnesses, surveyors, civil engineers and a lecturer and
writer on soil mechanics, Dr B K Menzies. Dr Menzies is a man of academic
eminence and his absolute integrity is not questioned. He gave evidence with
great thoughtfulness, and I was impressed by his anxiety, shown also by Mr
Haswell, to be scientifically accurate in every answer he gave. I regarded the
other experts, too, as putting forward their opinions in honesty and good
faith. The surprising and difficult feature of the evidence of those expert
witnesses has been the violent conflict of their conclusions. Those called by
the plaintiffs, claiming to rely on long practical experience, adamantly put
forward their contention that damage to block C was attributable to the action
of the roots and that the defendants’ experts, to quote Mr Russell Grahame,
"were trying to blind us with science," whereas Dr Menzies and Mr
Haswell maintained that the theory that the roots of the trees could have had
any effect on the building is really quite untenable. Mr Turner has submitted
that that is not a conflict of opinion between practitioners and academics, but
between competent professional men who have, and on the other side who have
not, applied their professional skill and learning when forming their
conclusions. In considering the weight to be placed on the evidence of those
experts I have been aware, as I have said, that Dr Menzies and Mr Haswell have
adopted a more exact scientific approach, whereas those called by the plaintiffs
were more inclined to give importance to visual diagnosis of the cause of the
damage complained of. Both Mr Grahame and Mr Halstead were unprepared for
cross-examination on the basis of mathematical calculations, and their evidence
suffered much buffeting in cross-examination. I am not altogether surprised by
the latter, because I think they may have been misled–at any rate until the
exchange of experts’ reports under the rules of the Supreme Court (Order 38)–by
a letter written by Robert Sharp & Sons, chartered architects engaged by
the county council in 1970 to investigate the plaintiffs’ complaints. The
bundle of correspondence exhibited reveals this history.
On September
17 1970 Mr Mason, on behalf of the plaintiffs, wrote to the county surveyor
stating the plaintiffs’ case in a nutshell, saying that the plaintiffs’ case
was that the damage suffered was due to the effect of the roots of their trees.
It took some time to get an answer which meant anything from the defendants,
and on May 10 1971 Mr Mason again wrote, this time to Robert Sharp & Sons,
who had been employed by the county council, and set out the quantification of
the plaintiffs’ claim to damages. He said:
We shall be
pleased to learn in the very near future the above claim will be met in full
and that it is in order for the necessary instructions to be placed with the
two contractors.
The reply on
May 19 1971 says this in answer to that letter:
We agree that
the major cause of the damage to the maisonettes is due to the presence of the
tree roots, but it is obvious that the trees were there many years before the
development of Rosary Court and in our opinion insufficient attention was given
to the presence of those trees and their effects by the developer, Heron
Construction Ltd. It is obvious that some roots would have penetrated as far as
the building site at the time of construction and it can only be assumed that
those roots were simply cut off where they interfered with the proposed
foundation of the building. It is therefore a legal matter as to whether (a)
the county
was negligent in building with the knowledge that the tree roots existed or (c)
should they have applied to the council to have the trees removed before
carring out building operations.
Robert Sharp
& Son go on to say that the underpinning required under the east wall was
due to the inadequate depth of the foundations there. They continue:
The end
property suffering settlement would have the effect of endeavouring to force
these properties out of the level plane and by doing so would be placing them
under stress. All this of course has been aggravated by the tree roots. It
would be interesting to establish whether at the time of the underpinning the
roots were affecting the properties and if they were, why did the developer not
take action with the council to have the trees removed? The mere fact that he did not complain to the
council leaves one with the impression that the settlement was due to the
foundations being laid at an inadequate depth. It is generally agreed that
foundations laid at a depth of 3 ft below damp-proof course level to the bottom
of the concrete would be very likely to produce a settlement owing to the
variation of moisture content in the clay. A minimum depth of foundation in
clay is accepted at 5 ft, which I think you will agree with.
They summarise
their view as follows, at the end of the letter:
The tree
roots are undoubtedly causing damage to the properties and the felling of these
trees must be considered, but we agree with you that care should be taken in
the execution of this exercise. (2) The depth of the foundation is inadequate
and this in itself could produce a settlement.
I need not
read Mr Mason’s reply to that letter, save to say that his argument that the
negligence of the builder, if such it was, could not affect the plaintiffs’
claim if the damage was indeed caused by the action of the roots of the trees seems
to me, as I shall say later, correct.
No indication
was ever given by Messrs Sharp or anyone on behalf of the county council that
the opinion expressed in that letter of May 19 1971 was altered. Indeed Mr Alan
Sharp, the senior partner of the firm, gave evidence which convinced me that
the competent employees of the county council, as well as his own very
experienced building surveyor, who wrote the letter, were at that time
unanimously of the opinion that the major cause of damage to block C was the action
of tree roots. I am not persuaded by Mr Sharp as to why or when that opinion
was first doubted, but it was not until December 8 1972 that he and Mr Haswell
visited the site together. The county council’s defence served on October 2
1972 virtually repeated the contents of the letter of May 19, although it did,
of course, traverse the allegation of the roots causing damage; consequently
nothing emerged to spur Mr Mason or Mr Halstead and Mr Grahame to more
meticulous examination of the mathematical data until they received copies of
Mr Haswell’s report. By then, perhaps, it was too late, and they were
unshakable in their belief in the correctness of their diagnosis. To some it
might seem odd if defendants who for so long had admitted the vital facts and
who would have had no defence if the case had been speedily heard should escape
liability by contrary opinions advanced by new witnesses who had been brought
upon the scene at a very late hour and when, quite naturally, none of the
original investigators had been called. However, the letter of May 19 1971 is
no more than a piece of evidence, but according to Mr Turner it was a mistake
made when the full facts had not been discovered by Mr Haswell. My task is to
determine the true cause of the damage without allowing myself to be swayed by
mere sympathy or negligent mistakes. In this task I have referred to two
learned papers by W H Ward entitled "The Effects of Fast-growing Trees and
Shrubs on Shallow Foundations 1947" and "The Effect of Vegetation on
the Settlement of Structures 1948."
They have not, of course, been tested in cross-examination and were read
to special audiences, but Dr Menzies referred to them as references of
authority. So when in doubt about sworn evidence or when looking for the more
felicitous way of expressing my views, I have sought assistance from those
papers.
The setting
for the problem is this: the row of trees along the boundary between the county
council’s land and Rosary Court included oak, elm, horse chestnut and a tall
wellingtonia (a conifer, which is really irrelevant to this problem). They were
at right angles to the east end of block C. The block itself is 90 ft long but
presents a dimension of only 25 ft to the row of trees. As can be seen from a
drawing by Mr Mason, an elm stood only 16 ft 3 in from the south-east corner of
the block, an oak in the middle of the row only 14 ft 9 in or, as Mr Haswell
measured it, from its centre 16 ft from the east wall, and a horse chestnut 22
ft from the north-east corner, while another oak was 60 ft from the same
corner. At the other end Mr Harry’s oak was a mere 18 ft 5 in from the
north-west corner. Those are all mature trees, and when Dr Menzies inquired of
a local tree expert, he was informed that they were about 75 years old, or, in
other words, they had reached about three quarters of their ultimate height
with about 25 years of growth left. The elm and the oaks were not less than 70
ft high, except Mr Harry’s oak, which was only 35 ft in height and therefore
must have been younger and faster growing. It is generally agreed that trees
should be no nearer than one and a half times, or preferably twice, their full
mature height from buildings so that the buildings should be outside the
expected range of their roots. It must also be accepted that the roots of trees
in a row often extend further at right angles to the row. It is quite plain
that all the defendants’ trees I have mentioned above are far within that zone.
The situation
of the trees is of special importance as Rosary Court is built on London clay,
which has over many years caused problems for builders and property owners in
south-east England, the more so in the presence of trees or smaller vegetation.
It has the following characteristics: it is subject to dimensional or volumetric
change according to its moisture content, normally less in summer and more in
winter. Secondly, it also suffers dimensional change when loaded with the
weight of a building, although this often takes many years. Thirdly, it
undergoes a non-dimensional change, that is to say immediate settlement, upon
the load of a building being applied. That is due to constant compressibility
and not the expulsion of water from the soil. Fourthly, it weakens in
proportion to the decrease of moisture content. Finally, it is impermeable; its
liability of shrink due to the extraction or expulsion of moisture is referred
to as its compressibility, and that is the less the deeper one goes into the
ground. Conversely, if a building is founded upon soil near ground level, the
compressibility of the clay there is at its maximum. At that level, too, a
building with shallow foundations is vulnerable to the effects of softening of
the clay occasioned by water leaking from fractured drains, rain water pipes,
etc. Bare London clay may shrink in the hot weather without interference by
tree roots, but then it does so far less than when it bears vegetation. The
roots of trees extract moisture because they seek water to supply their trees,
and if the soil in their immediate reach is exhausted, they will extend
themselves to find moisture where they can. The fastest growth occurs in the
first half of the life of a tree; thereafter the rate of growth lessens. In
spite of that, the larger a tree the more water it requires. A large, single tree,
for instance, expires through its foliage about 200 gallons per week. In the
course of time the ground within the radius of the roots reaches a steady level
of shrinkage, which Dr Menzies said would be about 4 in at the surface,
allowing thereafter a seasonal fluctuation of about 2 in. The defendants’
witnesses call that "long-term consolidation"; the soil has
established a state of equilibrum. But some, including Mr Grahame,
doubted that there ever was such a condition of the soil. W H Ward, in his 1947
paper, p 9, observes that equilibrium never occurs in nature. Whether that is a
semantic problem or not I do not know, but it is clear to me that there is long
term shrinkage in the presence of a well-established root system. In his 1948
paper W H Ward states that near to last-growing trees, like elm and oak, the
surface movement may exceed 4 in. It must not be forgotten that in an
abnormally dry period the root system will extend further and deeper.
Another
consideration relevant to this case is the effect of shelter. Buildings,
concrete paths or drives and the like will shelter the ground beneath, thus
keeping the clay relatively dry, at the same time consolidating and making firm
the clay, so that it is contended on behalf of the defendants that clay subsoil,
especially if it has achieved long-term consolidation, will not recover any
moisture there and will therefore be far less liable to any substantial change.
Clay will tend in summer to shrink downwards and outwards from the building. W
H Ward, again in his 1948 paper, points out that roots, especially tree and
creeper roots, frequently extend under huts or dwellinghouses and obtain
moisture from the covered ground, and particularly large shrinkage movements
are caused when the ground water level does not rise in winter. It is true that
if a root encounters a particularly dry zone, as under a building, it will not
cross it in order to reach moisture on the other side. In a narrow dwelling
like block C the evidence is that moisture from the sides will reach below the
foundations in a sort of diagonal line. The roots which had been on the site in
1958 had been cut back, but apparently not poisoned, so they would return.
Indeed the Terresearch report shows that roots had been found under the
foundations of block C as well as in the contiguous soil and could have caused
large shrinkage movements. On my inspection of the site I observed in the
garden behind flats 9 and 10 suckers which I was told were elm. I saw an elm
root almost as thick as a broom handle, in my recollection, arching above the
ground near the manhole behind flats 13 and 14. The places where roots were
found are shown in the plan exhibited. The obverse of the same coin is swelling
or heave, which occurs when moisture is returned to the clay. That happens when
seasonal rains occur, or when water extractors, like trees, are removed (see
Building Research Station Digest No 3). Heave can take a long time to occur,
but it may on the other hand be quite quick. In this instance it is agreed
between the parties that some elm trees both in the row immediately to the east
of block C and along the boundary south of the garages were cut down in 1976.
They had been dead or dying from Dutch elm disease, and trees in that state,
even before being felled, cease to extract moisture. Some other trees not
immediately against the boundary between Rosary Court and Mount Grace School
blew down, or were damaged and immediately cut down, in an autumn gale in about
1974. Consequently there was reason for a swelling of the clay under and around
block C, but the defendants’ contention in this case relies on the allegation
that there has been no symptom of heave in that structure at any time. It may
well be slow to evidence itself after such recent fellings, and I agree that I
cannot find evidence that those trees after they were felled have had any
separately discernible effect on the damage.
That is the
setting. What is the evidence that roots of the defendants’ trees are
responsible for that damage to block C?
Mr Turner rightly contends that one cannot answer that question by
saying that damage occurred and trees are nearby, therefore the trees are
culpable. Dr Menzies remarked that hitherto the action of tree roots has been
too readily accepted as the cause of structural damage and that this action is
the first of a number which are awaiting trial in this division in which that
assumption is being challenged.
As will be
seen in Mr Haswell’s crack survey, the most serious and plentiful cracking has
been in the middle of the building and at the eastern end, that is the half
nearest the county council’s trees. At the further end, flats 13 and 14, near
Mr Harry’s oak and rowan, there were four second-degree cracks in the north
exterior wall, one of the same dimension at the foot of the west wall and
another plus two first-degree cracks on the south. The cracking is worse inside
the building. In short the witnesses agreed that the building has broken its
back, as can be vividly seen in Mr Haswell’s survey plan. That is to say it is
sinking at each end, leaving the centre at its former level. Dr Menzies calls
that hogging, and some of the symptoms are that the cracks are wider at the top
than at the bottom. Most are in the centre of the building and, as in this
case, the walls tend to lean outwards. But in my judgment that hogging and
those symptoms need not be caused only by insufficient foundations at each end.
It may well be that a narrow building in the presence of active trees close to
each end may subside at each end by reason of the extraction of moisture. The
centre would then fracture, leaving the structure free to articulate in
separate parts and so exacerbate the damage. It is significant that the first
crack appeared in 1959 on the east end wall–I have not forgotten that Mr
Haswell said that the shallowest foundations were under that wall–and the
cracks in the middle flats were first noticed in 1964, whereas the action of Mr
Harry’s oak was first detected by Miss Poulton in 1963, again in 1965 and 1968.
In 1969 Messrs Pynford reported that the upper part of the west end of block C
was beginning to slide over the brickwork below damp-proof-course level. They
concluded, having seen the nature of that movement, that it was due to the
action of the roots of all the trees I have mentioned. In the witness box,
however, Mr Cooper agreed that he could not say how much effect Mr Harry’s oak
might have had in 1969, though he would have expected a slight effect at the
nearest corner. Mr Mason found it significant that the floor of flat no 14
nearest to that oak had settled. In my judgment the hogging by this building is
quite consistent with the plaintiffs’ case. I draw much encouragement for that
decision not only from p 10 of W H Ward’s 1947 paper, but from Mr Haswell’s
summary of reports, in which he very fairly puts the matter as follows; under
the heading "Tree Roots" he says:
Thus it is
understandable that in each case such as the one under consideration where the
ground is known to be of clay of this type the foundations seem likely to be of
a shallow strip type and there are trees in the vicinity that tree root action
may be postponed as a possible hypothesis. However consideration of the
relative positions of the trees and the parts of the houses which have suffered
differential settlement together with the order of the latter at the various
points makes it very difficult to support the tree root hypothesis. If for
example the differential settlement effects had decreased as the distance from
the trees had increased, it would have been possible to consider that there was
at least general conformity with such a hypothesis. At first sight there
appears to be some support for that hypothesis, since we have that (1) the
differential settlement effects are at a maximum in the gable end wall nearest
to the trees (2) there is a steady reduction in these effects as far as the
transverse centre line on the middle party or cross wall (3) unfortunately a
difficulty is introduced here by the fact that the settlement is not uniform
across the building at this point and is greater at the rear although less than
at the end, ie the decreasing trend still holds to a lesser degree (4) from the
centre outward the trend is reversed so that at the end furthest from the trees
the maximum settlement value is again attained. Unlike that at the centre it
might seem possible to overcome this difficulty by postulating that the effect
is a consequence of the effects of the roots of the oak tree opposite the
north-west corner of the building. Further support might be afforded by the
fact that oak tree roots were observed in TP 5. The anomaly contained in the
nonconformity of the settlement-distance results might be explained by possible
scatter due to the road effect. The effect of tree roots may be shown by variations
in the moisture content of the clay at differing depths. These
control bore hole, was placed away from the trees so that the values would not
be affected by them. It will be seen that the values in the clay result in a
vertical straight line, that is there was no change in the moisture content.
Values for bore hole 2, nearest to the trees, clearly show the influence of the
tree roots with a characteristic curve. The curve for bore hole 3 illustrates
the lessening effect of distance. The values for bore hole 4 give a vertical
straight line and show that there was no significant tree root effect on the
west gable end wall foundations. Hence we are left with the fact that only the results
for the east end and the centre at the front could be held to conform with any
possible tree root effects. It will be seen that even those become implausible
with further consideration.
I shall look
into the matter of implausibility in due course, but I think that although that
summary sets out fairly what Mr Haswell has since adhered to, it shows, to my
mind, that the theory that tree roots have an effect in this instance cannot be
dismissed as wholly untenable. By the time he wrote that summary of reports Mr
Haswell had had over two years in which to study his drawing.
Mr Donald
Halstead, a Fellow of the Institute of Structural Engineers and a member of the
Association of Civil Engineers, practising in North London as a consulting
civil engineer, has, in his professional experience since qualifying in 1956,
been accustomed to the construction, design and measuring of loadings on
foundations of all sorts of buildings, including houses and blocks of flats. He
investigated the damage in block C on January 18 1973 and did a detailed survey
of the defects two months later. He had with him the correspondence, so he may
perhaps be said to have been prejudiced in his approach, but I am reluctant to
believe that. He examined the two aspects of subsidence and heave acting at the
centre of block C, and did a line-and-level survey to define the degree of
subsidence and horizontal movement. He was very critical of the shallow
foundations in the presence of tall, mature trees at each end of the block, but
came to the same conclusion as those who had preceded him on behalf of the
plaintiffs, namely that there could be little doubt that the primary cause of
the structural damage was that moisture had been extracted from the subsoil by
the roots of those trees. The oak at the western end would have caused some
damage, he said, even if the trees in the east had not existed. He believed
that in the circumstances the foundations would have been adequate if trees had
not been there to affect the site. Having seen the pattern of cracking over the
whole building, he was satisfied that it was attributable to the action of tree
roots.
Mr Russell
Grahame’s opinion was then obtained. Mr Grahame is a Fellow of the Institute of
Structural Engineers and a member of the Institute of Civil Engineers as well
as a Fellow of the Institute of Arbitrators, and first became interested in the
sinister effect of tree roots when his own house in Barnet, an area of London
clay, where he had lived for the last 16 years, suffered from subsidence. He
has published technical articles in the professional press and also journals.
He made his preliminary visit briefly to Rosary Court on December 18 1975, when
he formed the impression that tree roots were the culprits. He declared that
that was perfectly obvious, and several further visits to the site did not
alter his view. Indeed he illustrated his evidence by three drawings showing
the spread of the roots, the soil moisture content and the levels of the
building taken by him. He attracted Mr Turner’s scorn, when hard pressed in
cross-examination, for saying that he had not produced any scientific
calculations because he regarded the topic of subsidence damage as an art
rather than a science, a surprising statement from such a well-qualified
engineer, but not entirely without reason. He thought that the roots from the
relative trees were certain to have grown under block C; if they had been cut
back when the site was cleared in 1958 they would have grown again, which he
had known roots to do in a matter of a few months. Mr Grahame said he had
considered, but rejected, the possibility of the damage being attributed to the
failure of the foundations or the softening of the subsoil. He had approached
his task having read the correspondence and the reports of the other witnesses,
and said that in the absence of trees he would have looked for another cause,
but in the presence of trees, as in this instance, he would look only for any
contributing cause of subsidence. He, as well as Mr Mason and Mr Halstead, to some
extent took the line that the proximity of the trees to the damaged structure
was enough to establish the traumatic relationship between the two.
Mr Turner
argues that there is no evidence of shrinkage of soil caused by roots of trees
other than long-term consolidation before Rosary Court was built, nor of
seasonal variations such as the contraction of the cracks in winter, except,
perhaps, in Mr Bunclark’s evidence. Mr Bunclark complained about a set of
cracks which appeared in 1964 and persistently returned after he had filled
them in with a proprietary filling substance. Only once was the substance
squeezed out of the crack by closing pressure in the winter. That was when he
put a patch across a crack and it came up, to use his words, "in a V-shape." He thinks he may not have filled the crack
properly on that occasion. I believe that that exceptional incident may given
an answer to the puzzle here. If debris in cracks due to internal fracturing
can keep them open in winter, I think the filling substance packed in had the
same effect when it dried. Mr Mason visited the flats on many occasions since
1969, partly for the purpose of examining the defects, and he observed signs
that the cracks were growing wider, but saw no evidence of their closing, although
he did not measure them. Other residents were not asked about that point.
Whatever the explanation, I agree with Mr Turner that the plaintiffs have
offered no other evidence that in fact the cracks tried to close in winter due
to seasonal changes in the soil. The absence of evidence of heave in the winter
when the moisture content of the clay was substantially replenished by rain
would be a factor against the theory that in a dry summer roots of neighbouring
trees had extracted moisture beyond the level of permanent soil equilibrium,
and its existence would be important evidence in the plaintiffs’ favour.
In his drawing
of curves of percentages of moisture control, superimposed on figure 3 of the
Terresearch Company’s report, Mr Haswell had hoped to prove that long-term
extraction of moisture from the subsoil under and around block C had happened,
and that there was no evidence of any influence from trees. He candidly
admitted that his drawing did not result in a satisfactory proof of anything,
except that the average content of moisture at bore hole 4 was 28 per cent,
which was about the level one would expect in soil which had reached the
equilibrium. I regret that I have been unable to make any more of it than Mr
Haswell did. When referred in cross-examination by Mr Quentin Edwards to
paragraph 4.3 of the Terresearch report, Mr Haswell could not explain why in
July 1974, which was a wet month, trial pits 1 and 2, nearest to the row of
trees belonging to the county council contained the stiffest clay and were dry.
Indeed he went as far as to say that he did not believe it was true. Trial pit
2 was also very close to a leaking drain water pipe. Terresearch Ltd’s
laboratory analysis showed that although those trial pits had been dug no lower
than 3 ft from the level of made ground, moisture content in each was
substantially lower than the average of 28 per cent shown by bore hole 4. It is
significant, in my judgment, that those trial pits were alongside the east wall
where severe cracking has occurred and each contained roots. However, the
moisture content of trial pits 3, 4, 5 and 7 was rather higher.
On behalf of
the defendants their expert witnesses say that the structural damage to block C
is the result of foundation
of the gable end wall footing, the shallowness of the east wall footing and the
softening effect of broken and leaking storm water drains. Neither Dr Menzies
nor Mr Haswell absolutely excludes the possibility of the tree-root action
playing some part, but I could see in Dr Menzies’ answer to that effect under
cross-examination the clear signs of his scientific discipline. His true answer
came earlier, when he said:
My considered
opinion is that roots had no effect whatever on this building.
Mr Haswell put
it as being a very minor part that they had played, wondering how it could be
evaluated. Such opinions of such experts are entitled to be listened to with
the greatest care, and I would be very slow to disagree with either of them,
even to the extent I have already done. There can be little doubt, in my
judgment, that the foundations of Rosary Court were too shallow by modern
standards and the footings are not uniform, but in 1958 standards were
different. The building by-laws then provided no specified depth for
foundations, but merely provided that they should be taken down to such a
depth, or be so designed and constructed as to safeguard the building against
damage by swelling or shrinking of the soil. In the light of modern practice
the builders of Rosary Court would probably have been in breach of that by-law.
Dr Menzies’ view is that foundations should go down to at least 3 ft into the
clay, or preferably 5 ft into undisturbed clay, and that in the instance of
Rosary Court the foundations should have been on board piles 16 ft 6 in deep.
In 1958, however, planning permission was given on specifications of
foundations of a depth of 4 ft. Mr Bedford, the urban district council building
inspector, quite happily allowed, or thought he was allowing, depths of 3 ft
only. I was not impressed by him as a witness of accuracy and believe that he
was careless in his work. The foundations of the east wall were less than 3 ft
from the damp-proof course. I prefer Mr Mason’s measurements in this respect,
as being done earlier than Mr Haswell’s. I observed that in his two learned
papers Ward treats 3 ft as a substantial depth for foundations and recognises
that even shallower are made for economy’s sake. He writes that in south-east England
it appears to be uneconomical to found dwelling-houses sufficiently deep to
avoid damage by trees and creepers, and even if it were economical, the damage
to the services would become more severe. Mr Haswell’s opinion was that in the
United Kingdom
One principal
consideration for foundation design was to treat 3 ft as adequate because we do
not have such severe frosts as elsewhere.
I have no
doubt, therefore, that foundations of 3 ft or less were commonly to be found
before 1958 and the houses are still surviving, one good example being given by
Mr Bedford, who said that there are in Potters Bar 800 houses built on London
clay in 1935 with foundations less than 3 ft deep, of which only two are
showing any cracks yet. They were founded, as they ought to have been, on firm
clay. Dr Menzies believes that it is inevitable that all those houses must have
suffered some settlement cracking, but even if that were so, the more important
fact for this case is that those houses are still standing and, as far as I am
informed, none are on the point of becoming uninhabitable. As I have said
before, the reason why foundations should be deeper is because the soil is more
compressible near ground level and also because at 9 or 10 ft deep they would
be immune from seasonal movements of the soil caused by nearby trees.
It seems to me
that the evidence I have heard from Dr Menzies about the long-term
consolidation of soil in the presence of old-established root systems and Mr
Haswell’s affirmation that if building a house near to a 50-year-old tree he
would disregard it, provided the foundations were deep enough, are subject to
the background reasoning that foundations must be deep enough to be safe from
the possible effects of the same trees, else they may be affected by those very
trees. How can it therefore be said with assurance that if the foundations are
not placed at such depth, the trees cannot have had the apprehended
effect? I regard it as significant in
this respect that the guarantee offered by Messrs Pynford contained a condition
that after the underpinning was completed, even to a depth of 9 ft, no tree
would remain whose ultimate height would be greater than its horizontal
distance from the work. Dr Menzies said that, if asked to advise the builders
of block C in 1958, he would have advised that the foundations be set on bored
piles 16 ft 6 in deep. He was there correcting a previous answer which he gave
to what he understood to be a hypothetical question, and he explained that the
difference was that with a hypothetical case his answer was based on a static
moisture regime and with a practical case, such as block C, water regime may
change. That seems to support my view of the reason for insisting on deep
foundations. Dr Menzies gave evidence. He holds a doctorate of philosophy in
the special subject of soil mechanics, he acts as a geotechnical consultant
advising consulting engineers, is engaged in research work on soils involving
field work and advises the National House Building Council on a code of
preventing foundation failure, and withal he lectures on soil mechanics at the
University of Sussex. He has also published several learned books and papers,
but Mr Edwards points out that he has had comparatively little day-to-day
practical experience; he has never advised an engineer who wanted to build a
house over an existing root system and has practical experience of building on
London clay in one other case only. Mr Turner seemed to want me to know that Dr
Menzies had never before given evidence; I thought he gave it excellent well.
Mr J H
Haswell, the other expert witness called by the defendants, has a degree of
bachelor of science in engineering, is a Fellow of the Institute of Civil
Engineers and a Fellow of the Institute of Structural Engineers. He has had many
years’ practical experience, even on such large projects as examining the
causes of stress and failure in a large dam in California as well as general
practice in the design and performance of foundations. As I have said, I would
hesitate long before venturing to disagree with such witnesses, but this is a
trial of law, which cannot be decided merely by counting the academic
qualifications acquired by the expert witnesses on each side. If that were
desired, they should have been made arbitrators.
Dr Menzies’
reason for dismissing the plaintiffs’ case is simply stated in his report,
where he explains that there are in fact only two ways in which extraction of
ground water by tree roots can cause structural distortion of buildings on
shallow foundations, namely by planting new trees close to an existing building
or, secondly, by the heave which occurs when nearby trees are felled at about
the time of the construction of the building. He notes that Rosary Court was
built alongside mature trees, which by the time proceedings were begun in 1969,
as he says, had not been felled. He writes:
It may be
seen therefore that all allegations that the damage to Rosary Court was due to
the action of the tree roots extracting moisture cannot be substantiated.
That was, in
my judgment, a considerable leap in reasoning and showed no sign that thought
had been given to the possible continued action by trees that were only
three-quarters grown, nor to abnormal weather conditions. His mind was of
course occupied by his reasons for thinking that other factors enabled him to
show that the damage to block C was due to defective foundations, but the
impression given by such a careful witness was that he too readily dismissed
from his mind the plaintiffs’ allegations. He had visited the site once only in
October 1976, when he went there with Mr Haswell less than two months before
this hearing began, and his opinions are based
by the Terresearch report, which after all only showed the position in 1974 and
could not show the history of the site. Dr Menzies agreed with a quotation from
the book of which he is co-author:
Whoever
expects from soil mechanics a set of simple hard and fast rules for settlement
computation will be deeply disappointed. The nature of the problem strictly
precludes the possibility of establishing such rules.
He agrees that
there is a place for practical experience in this field. I do not say that he
had not thought deeply about this subject, but that is the impression his
evidence has given. He said under cross-examination:
The mechanism
of damage in block C can be explained by calculations of load-induced
settlement. I do not say roots are not a contributing factor, but my
observations–
that is to say
calculations–
have shown
that the mechanism is the result of load-induced settlement, therefore other
factors do not form any relevant consideration. Load-induced settlement offers
sufficient explanation of the damage at Rosary Court.
I have to
decide whether it is the only possible explanation. As illustrations of that
theory, Dr Menzies produced some drawings, which would be studied in
conjunction with documents showing Mr Haswell’s measurement of the settlement
at various points around the building between December 8 1972 and November 4
1976. The large drawing, exhibit D6, shows vividly the differential settlement
of the north and south sides respectively in those four years, and the other
drawing, exhibit D9, is intended to show the relationship between the loading
at various points and the settlement at the same points.
I accept Mr
Edwards’s submission that exhibit D9 should be received with caution because it
is based on too many assumptions. Dr Menzies says, and of course I accept, that
if over the years 1972 to 1976 there is the same relationship between bearing
pressures on the soil and settlement, it can fairly be assumed that it would
similarly be related in the preceding history of the building. The two parts of
exhibit 9 shows that on the south side the bearing pressure and settlement are
both uniform, whereas on the north side, which has differing bearing pressures,
the settlement is not uniform. The greater settlement is at the end walls,
which are the heaviest, except that at chainage 14 the consistent nadir is
explained as being near a leaking rainwater drain on the north-east face of
block C. Dr Menzies drew D9, taking Mr Haswell’s figures for the depth of
foundations and on the assumption that all the footings were of uniform width,
but it can be seen from Mr Mason’s measurement that they were not. Mr Haswell’s
experience is that walls are often not centred on the footings, which would, of
course, also affect the bearing pressure. A table exhibited shows that small
variations in the size of footings can make a substantial difference in bearing
pressures and could therefore make a significant difference to the profile
drawn by Dr Menzies. The depth of the foundations, too, may make a considerable
difference, but they are not all known. Mr Haswell told me that there would be
a relationship between the amount of subsidence and the depth of the footing
into undisturbed clay. At trial pit 5 on the west wall Mr Mason measured 6 in
down from the level of the top of the undisturbed clay to the top of the
footing, but that is not shown on Mr Haswell’s measurements. It also assumes
that there was uniform compressibility under the foundations. In my view
illustration D9 is based on too many unknown quantities. I think the same
figuration could be demonstrated, perhaps, if the subsidence were due to
seasonal or abnormal extraction of water from the soil. If unevenly loaded
foundations may settle unevenly by consolidation of the subsoil, I do not see
why they should not do so just as much if the subsoil is weakened by the
extraction of moisture by tree roots.
Exhibit D6
showed levels taken of each face of block C on December 8 1972 and in
comparative profile measurements of the same positions taken on November 4
1976, immediately before this hearing began. It shows that, as everyone has
diagnosed already, the building was breaking its back and that in December 1972
the north wall had subsided rather more than the south wall, the consistent
lowest point being on the south at chainage 14. The most serious fall on the
north aspect of the building was within the centre towards the west, although
as can be seen on the drawing of crack patterns, the most severe cracking was
at the centre and opposite or east end. In the next four years the north face
fell substantially, though still maintaining a bridging shape, whereas the
south side remained virtually the same. The defendants point out that the south
is the heavier side of the building, so that due to load-induced pressures on
insufficient foundations it would have subsided perhaps to its full extent of
consolidation before the north. As I have said above, Dr Menzies asked why did
the roots not affect both walls the same, and why were the settlements on the
south more reasonably uniform than on the north flank? The width of block C is only 25 ft at right
angles to the row of trees and so the variations cover a very small distance.
That is a cogent argument and is not, in my judgment, answered satisfactorily
by Mr Mason and Mr Grahame saying that it is occasioned by the growing trees
behind the block. The defendants’ experts concede that the south elevation may
have sunk to its observed depth before Mr Haswell’s observations began. That
would no doubt alter Mr Haswell’s inferences and Dr Menzies’s criticism, and
might allow Mr Grahame’s idea that the building was rocking. In my judgment the
probable explanation is that although trees which one can see in the background
of a photograph in the plaintiffs’ bundle and the line of garages may afford
some shade, the south side is usually warmer than the north, which has
considerably more shelter from the building and from the concrete paths and
roadways. The evidence is that settlement due to insufficiency of foundations
would be completed in about 10 years, that is to say by 1969; Dr Menzies says
it would be 70 to 90 per cent complete, so Mr Quentin Edwards asked what then
had caused the continuation of damage since that time? No answers were offered on behalf of the
defendants; Mr Haswell said he did not know, and Dr Menzies suggested that it
was caused by leaking drains and rainwater pipes. Such settlements are
localised in effect, and I do not feel able to accept that explanation.
Leaking drains
were found by Mr Haswell and Dr Menzies in 1976. They found signs that the
rainwater drain at chainage 14 had been inoperative for some time because it
was broken and blocked with debris. Mr Mason had found defective drains in 1973
when he discovered that the main drain was in good condition but the branches
between the building and the main were all cracked and defective. They had
previously been repaired in 1964. I cannot find that those defective drains had
any part to play in the major damage which occurred up to 1969, for no one can
antedate the leakage before 1973. I am not prepared to guess, especially as Mr
Haswell, who regarded the shallowness of the foundations as exaggerated by the
leaking drains, could show nothing in the Terresearch report which indicated
moisture levels affected by them. Fractured drains are, of course, a feature of
settlement of buildings, but not necessarily of settlement caused by the action
of tree roots.
Counsel for
the plaintiffs has put great emphasis on the comparison with the other two
blocks in Rosary Court. I think the point is valid. They were built at the same
time by the same jerry-builder on the same plans, so that Mr Edwards says:
One may
assume that the foundations are the same, yet they
they are further from the trees.
The best
evidence of their foundations is in Mr Mason’s drawing, but that does not
disclose factors such as the depth they went into the clay, etc. Mr Grahame
thinks some of the damage to one block is attributable to a fairly small lilac tree
close to it. Mr Haswell thinks the structures are showing signs of stress, but
agreed that if those blocks were truly comparable with block C, which he
maintains they are not, the fact that they have sustained very little damage
leaves roots as the only cause of damage in block C. I am not sure on the
evidence that the blocks are truly comparable and so do not attach much weight
to this point, although I think I should not altogether dismiss it from my
mind.
Finally I
would remark that I have observed that in dealing with the action of roots on
the soil the defendants’ experts did not mention in their written or oral
evidence, save briefly in cross-examination, one outstanding point in the
plaintiffs’ case. They spoke much about normal seasonal variations, but not at
all about the abnormal times of severe drought which, I repeat, occurred in
1959, 1964, 1969 and 1973, when the enlargement of cracks was principally
observed.
I have
examined the evidence in great detail from both sides in order to answer the
first question: was the damage caused by the roots of the defendants’
trees? I have come to the conclusion
that on the balance of probability the answer must be yes. I do not utterly
dismiss the defendants’ suggestion that the insufficiency of the foundations,
exaggerated in the later years by some leakage from drains, was a factor, but I
think it was a contributory one. In coming to that conclusion I have not
approached the problem on the basis of where the onus of proof lies, but I can
say that if I had not heard Dr Menzies and Mr Haswell, I would have had no
difficulty in saying that there was ample evidence to support the plaintiffs,
and those gentlemen have not persuaded me to the contrary. It is no defence for
the defendants, who have caused damage by nuisance on the plaintiffs’ land, to
say "Oh well, the structure that was damaged was not robust, or was of its
nature unlikely to survive long."
(See Hoare & Co v McAlpine [1923] 1 Ch 167). It is
obvious that that must be so. Consider the case of a man who at the end of the
last war erected a Nissen hut or prefabricated house, which had then an
officially estimated expectation of life of 10 years and probably very shallow
foundations. Should it be a defence for his neighbour, whose trees’ roots damaged
the structure in the eighth year, to say "They are rickety buildings which
won’t last long"? Many have, in
fact, survived far longer than the 10 years expected, and in my judgment block
C’s end, in the absence of root effect, was not in sight. By the same token I
doubt whether the contributory effect of faulty construction should be taken
into account and weighed against the root effect, unless, of course, the former
was of so overwhelming a nature as to reduce the tree root effect to
insignificance. If that were the case, it might be possible for the court to
say that the bad foundations were the only true cause of damage, or if the
roots had begun causing damage only a few months or so before the inevitable
collapse of the building, that might be reflected in the measure of damages. In
those circumstances I have come to the conclusion that the defendants are
liable in damages to the plaintiffs.
The assessment
of damages is a very important issue in this case, especially as the cost of
repair and reinstatement of the damage, which could from an engineering point
of view have been successfully carried out in 1969, has not yet been done. In
1969 those works would have cost about £7,300, excluding the cost of
underpinning the internal walls, which I think it is agreed ought to have been
done at that time. In December 1976 the cost, including underpinning of the
internal walls, is estimated and not challenged at £58,625, owing partly to
further development of the damage since 1969, but largely due to the enormous
heave in building costs. Can the plaintiffs justify that huge increase in their
claim? Mr Mason, who was acting on
behalf of all the plaintiffs in 1969, said that there was no reason at that
time why block C should not have been immunised against further damage by tree
roots by underpinning to a depth of 9 ft, as Messrs Pynford proposed. But
individual clients could not afford it, he said. He agreed that it came down
solely to the economic circumstances of various plaintiffs, making it
impossible to have the work carried out in 1969. Constable Collman and his wife
had no capital resources; she was unable to work because of the birth of their
son, and Mr Collman thought that the building society would have lent him more
money on mortgage for this purpose. In my judgment that would have meant
straining his resources to the limit where severe hardship was reached. Mr
Blumenthal could have afforded £500 to £600 out of his savings, but the
interest on which he lived would have been thereby reduced. Mr and Mrs Peters
had no means in 1969 to take a share in the costs, although Mr Peters, an
ex-bank manager, might have been able to raise a loan on a five-year term. Mr
Bunclark, who had retired in 1969 and had begun to draw his old age pension in
1971, had an occupational pension of £690 and the balance of a redundancy
payment of £3,064, which he had received in 1969. He paid £700 off his mortgage
from that redundancy figure, so the balance was about £2,300 at the date which
is material to this argument, but he had to employ it later in paying £1,640
for the costs on account of these proceedings. I think an old man in that
situation was reasonable in feeling that he could not afford to contribute to
the remedial work. Mrs Barnsley, a widow, had a capital of £5,000 and Miss
Poulton had sufficient means to pay her contribution towards the cost of the
works. I think those who had not enough money, that is to say all except Mrs
Barnsley and Miss Poulton, were reasonable in saying that they just could not
afford to have the work done, especially if the council had taken the view that
the foundations by their insufficiency may have contributed to the damage.
This work that
was required to be done had to be done to the whole building or it would be
useless. I do not think that one or two residents with means, who refrained
from taking action to mitigate the damage, should be prejudiced because several
others were unable to do so. A fair measure of damages in an action of nuisance
is the cost of replacement or repair of the damaged parts of the plaintiff’s
property plus general damages for annoyance, inconvenience or discomfort of the
occupier. (See McGregor on Damages, 13th ed paragraphs 1059 to
1063.) It is well established that the
plaintiff’s impecuniosity can have no bearing on the measure of damages, for it
is extraneous to the defendant’s tort. But in the well-known case of the
dredger Liesbosch [1933] AC 449, at p 461 Lord Wright referred to the dictum of
Lord Collins in the case of Clippen’s Oil Company v Edinburgh and District
Water Trustees [1907] AC 291 at p 303, where he had said:
It is
contended that this implied that the defenders were entitled to measure the
damages on the footing that it was the duty of the company to do all that was
reasonably possible to mitigate the loss, and that if, through lack of funds,
they were unable to incur the necessary expense of such remedial measures the
defenders ought not to suffer for it. If this were the true construction to put
on the passage cited, I think there would be force in the observation, for, in
my opinion, the wrongdoer must take his victim talem qualem, and if the
position of the latter is aggravated because he is without the means of
mitigating it, so much the worse for the wrongdoer. He has got to be answerable
for the consequences flowing from his tortious act.
Then Lord
Wright says in the Liesbosch case:
But as I
think it is clear that Lord Collins is here dealing not with measure of damage,
but with the victim’s duty to minimise damage, which is quite a different
matter, the dictum is not in point.
That dictum of
Lord Collins was followed by John Stephenson J, as he then was, in Robbins
of Putney Ltd v Meek and Another [1971] RTR 345. This is a matter of
mitigation of damages, for the damage attributable to tree roots has continued
up to the present time. The onus was on the defendants, if they had wished, to
prove that the plaintiffs had unreasonably failed in their duty to halt the
increase of damage and thus to mitigate it. I hold that the defendants have failed
in that effort, because the plaintiffs were unable to afford reasonably to take
such measures. That is not all. Mr Cooper of Messrs Pynford would have been
unwilling to do the underpinning work while the trees remained standing, except
in a different way and at an increased cost. Mr Mason had written his letter of
September 17 1970 to the county surveyor and had said that his clients would
have to look to the council to remove those trees
which fall
within the ambit of the above rule of thumb, and additionally it would appear
that the council should also meet the cost of the underpinning work and all
consequential work.
The county
council, however, by obdurate silence, refused to remove the trees, and both Mr
Cooper and the plaintiffs’ other advisers thought that to do the work before
the defendants’ trees were felled would be a mere waste of money. Mr Cooper
admitted that even underpinning to a depth of 9 ft would not safeguard
absolutely against root action In my judgment, therefore, that would also be a
good reason for the plaintiffs’ failure to mitigate their damages. In view of
the county council’s carefree handling of the case, as shown in the bundle of
correspondence, one can have little sympathy for them. I can well understand
the plaintiffs being unwilling to do the mitigating work unless they could get
Messrs Pynford’s guarantee; it is very natural that they should wish to have
that guarantee, although Mr Turner has revealed in argument what little worth
it seems to have. However reasonable they may be in one way, I do not think the
plaintiffs were entitled to refrain from mitigating action merely because they
wanted something, that is to say the guarantee, which they had not had before
the nuisance began.
I would
therefore give judgment for the plaintiffs jointly for the special damage
claimed, £58,625.
In regard to
the individual claims under heading (d) there has been no contest on them or
the figures pleaded, but the plaintiffs are each also entitled to general
damages reflecting the diminution in value of their flats, which must include
the factor that Rosary Court block C has now such a bad reputation as a
jerry-built structure that it may take a long time to find anyone bold enough
to buy any flat there. On the other hand, as I awarded them the cost of making
the premises good again, they cannot expect damages twice over for the same
thing by putting it under the head of diminution of the value of their
property. In this connection therefore I would award each plaintiff £500.
How should the
general damages, apart from that, be assessed?
The plaintiffs have over a varying number of years and to different
degrees lost the ordinary enjoyment of their habitation. They have had to
suffer the aesthetic offence of bad cracking in their homes–constantly
repairing damage to their decorations, dust and anxiety——for a number of
years. I imagine that if they had rented the flats, the rents would have been
reduced considerably by a fair landlord, because of the unsightly and offensive
state of the premises. I think that is a fair basis, although I have no
evidence apart from my own inspection to help me, on which to try to arrive at
a fair figure of compensation. One must not forget also their discomfiture
while the repair works are being done. Consequently I would assess the general
damages under those heads for each plaintiff–I count the wife with the husband
as one plaintiff–as follows: Mr and Mrs Collman, 16 years in residence, but
seriously incommoded only since about 1967 or 1968, from which time I would
allow a hypothetical reduction of rent on an average over the years while his
flat was deteriorating at £2 a week. He is also entitled to some addition by
the fact that his flat became unsaleable in 1969, and he has been obliged to
continue to live in it ever since instead of a preferred home. I would assess
Mr and Mrs Collman’s damages therefore as follows:
(1) The diminution of the
value of the premises, as I have indicated, £500.
(2) General damages, as
described above, £1,550, making a total of £2,050.
Mr Blumenthal
has had the later years of his life greatly spoiled by the discomfort of his
flat. He has had the cracking since 1965 and has ever since fought a running
battle against it. "One gets tired," he says, "of doing patching
work time and time again." He has
even offered to give away his flat, so unpleasant and tiresome has he found it.
I think the hypothetical rent reduction in his case would have been not less
than an average of £3 a week, so I would award him £1,750 plus £500 for the
loss of saleability of his flat, a total of £2,250.
Mr and Mrs
Peters in flat 13 suffered the general effects of the damage since 1969, but it
has been much less severe at their end of the block. I do not feel able to
assess a hypothetical reduction of rent in this instance, and feel that these
plaintiffs suffered only a small aesthetic annoyance due to the damage in their
flat. I would award £250 plus £400 under the heading of loss of saleability,
which gives a total of £650 general damages.
Mrs Barnsley
in flat no 12 in the centre of the building has experienced some of the more
severe cracking, as shown by the plaintiffs’ photographs nos 22 to 27. I would
assess the hypothetical rent reduction in her case as not less than £4 a week
since 1965; although she did not give evidence, the dates must be much the same
as for Mr Bunclark. The sum arrived at is £2,300 plus the £500 previously
mentioned.
Mr Bunclark
has suffered the worst damage. When I visited his flat I reflected how I should
hate to have to live in such a place. I believe no one who was not in desperate
need of shelter would ever have rented it in that condition, so there is a
certain anomaly in saying that the hypothetical reduction in rent would be any
particular sum. As I have said, I am using it merely for assistance in arriving
at an otherwise undefined figure. I have taken the figure of £5 weekly since
1965. The general damages should therefore be £2,850 plus the £500. I think Mr
Bunclark’s flat will be far harder to sell than any of the others, and I feel
that as a round sum the total figures I have awarded will do justice to him.
There must
therefore be judgment for the plaintiffs in those terms. That leaves the
question of an injunction.
[Counsel at
this point reminded the judge that he had not mentioned the claim by Miss
Poulton.]
Judge Gibbens:
Did I not mention Miss Poulton? I have
regarded Miss Poulton’s damages somewhat in the same degree as those of Mr and
Mrs Peters, that is why I thought I had dealt with her. She lives in flat no
14, which she bought in 1963 with her own money and has had defects appearing
which I have already enumerated. I saw her flat, and I remember that in my view
it was not in such a bad state as to affect gravely her pleasure of habitation there.
I would therefore award her the sum of £200 for the general damages under the
first of my headings, namely the damages for discomfort and so forth, and £400
for the diminution in value of her premises; that makes £600.
I have not
considered the question of an injunction because it was indicated to me that
counsel might be able to agree on an undertaking in sufficient terms.
Judgment was given for the plaintiffs with costs.
No order was made for an injunction in view of the intimation that the parties
were likely to be able to agree on an undertaking, but
awarded to the plaintiffs jointly for special damage, namely, £58,625 included
a portion of the amounts awarded to individual plaintiffs and should,
therefore, be reduced by a figure to be agreed.
