Collapse of underground vault — Cavity over sewer laid in 1922 — Landowner’s cause of action held to lie only in negligence — Not barred by time — No negligence in fact established — ‘Upwards of 10,000 such vaults in London area’ — Arch over cavity bore all loads placed upon it till 1970
This was a
claim by Courage Ltd, owners of the Two Chairmen public house in Warwick House
Street, London SW1, against Westminster City Council for damages for nuisance
and/or negligence. The claim arose upon the collapse of the flooring of an
underground vault forming part of the public house’s structure.
Mr M Myers
(instructed by Knapp-Fishers) appeared for the plaintiffs, and Mr A Butcher
(instructed by Barlow, Lyde & Gilbert) represented the defendants.
Giving
judgment, JUDGE SMITH said that the plaintiffs’ claim was for loss of value,
costs of repairs and professional fees, and the amount had been agreed at
£9,761, so that the only question was liability. Prior to September 5 1970, and
for some time afterwards, the plaintiffs’ premises had an underground vault
which extended about half-way across the street. On that date part of the floor
of the vault gave way, the wall on one side of the vault sank about 8 in and
the road above also sank. An initial examination of the area revealed facts and
possibilities set out in a report by Richard Ellis & Son, chartered
surveyors, and also the existence of a sewer below the floor of the vault. The
sewer ran the length of Warwick House Street, there being above the sewer, at
least along a great deal of its length, and so by implication possibly along
the length which ran under the vault, a cavity about 3 sq ft or so in
cross-section. Investigations showed that the local authority, whose successors
were the present defendants, had laid the sewer in 1922. It was alleged that
they did so negligently, that through their negligence the cavity came into
existence, and that because of the cavity the collapse of the vault occurred
and the plaintiffs suffered damage. Even if there were no negligence, it was
said that the existence of the cavity constituted a nuisance for which an
action for damages lay. The plaintiffs commenced their proceedings on October 5
1972, two years after the damage occurred but 50 years after the work had been
done, and a question arose whether they were entitled to do so or whether the
claim was then barred by the Statute of Limitations.
He (his
Lordship) would first consider whether there would be an action in nuisance
even if the work had not been performed negligently. That such a cause of
action might exist in certain circumstances was beyond doubt. Cases involving
withdrawal of support from neighbouring land were perhaps the best known
examples. In such cases a person might
harm to his neighbour. If he decided to do so he must take the consequences. It
seemed clear and proper that he and not his neighbour should pay for the
resulting harm. In the present case the council was carrying out a duty imposed
upon it by the Metropolis Local Management Act 1855. It was argued that it
would be so contrary to natural justice that a local authority, carrying out
its duties conscientiously and without fault, should be liable for damages which
it could not have prevented, that if Parliament had intended that result it
would have said so in clear words. On the other hand, it could be said that as
the duty was imposed for the benefit of the ratepayers as a whole, any damage
resulting from it should be the liability of the ratepayers as a whole, and not
of the unfortunate individual or individuals who suffered the damage. In 1874
the Court of Common Pleas in Hammond v St Pancras Vestry (1874)
LR 9 CP 316 supported the former view in a case in which the vestry had a duty
to cause the sewers to be ‘properly cleared, drained and emptied’ and in which
injury had been caused to premises through the obstruction of a sewer. The
headnote read: ‘In the absence of negligence on their part the vestry or local
board are not responsible for any injury resulting to an individual from the
disrepair of a sewer.’ He (his Lordship)
saw no difference in principle or in logic between the cleansing of a sewer and
the installation of one so far as liability was concerned. Accordingly in his
judgment there could be no liability on the defendants unless they were guilty
of negligence.
He would next
consider limitation. Viewed from the plaintiffs’ standpoint it might be
thought, that if A suffered loss and that loss could be shown to have been
caused by the default of B, then if A had acted reasonably throughout B should
compensate him: on the other hand it might be thought unfair that a defendant
who had no means of knowing he was in default, and did not know, should be at
risk year after year, and his successors generation after generation, without
any limit in time, and that justice therefore required a line to be drawn
somewhere. The matter seemed to be well covered by authority. It might well be
that the cases in which the damage was not revealed at once could be divided
into two classes. In some instances, the first class, a situation might be
created by bad work which must eventually produce damage but not until the full
effects of natural forces, the elements, force of gravity, natural chemical
reaction and so on, gave effect to it. In other instances, the second class, a
situation might result in damage only through the interaction upon it of lawful
behaviour by other people. It seemed probable that if the road concerned in the
present case had not had heavy traffic over it, if it had merely been a
pedestrian way through the years, the collapse would not have occurred. So it
was a situation in the second class. Darley Main Colliery v Mitchell
(1886) 11 App Cas 127 was a case in which damage to cottages was caused by
subsidence by the working of coal under the land, the subsidence taking place
in 1882, 14 years after the working had ceased. The subsidence occurred because
of the interaction of lawful work by an adjoining owner, and the situation thus
fell into the second class. The House of Lords held that the cause of action
did not arise until the subsidence occurred. In his (Judge Smith’s) view, that
case was authority that in this kind of situation a cause of action in tort was
afforded when, and only when, the damage occurred. It followed that the cause
of action in the present case arose on September 5 1970, and the action was
commenced within the period of limitation.
The collapse
happened at a time when John Laing were redeveloping the area adjacent to the
public house and were engaged in extensive building works there. They were
interested in and concerned about the cause, conducting a survey to establish
the position of other vaults in the area and determine as accurately as they
could the line of the council’s sewer. Richard Ellis were engaged by Courages
to consider the situation and advise, and they in turn considered they needed
the help of engineers, and instructed Thomas Bedford & Partners for that purpose.
On behalf of the defendants, who understandably were unable to call any direct
evidence from the person, whoever he might have been, who carried out or
supervised the sewage works 50 years ago, the court had heard the evidence of
Mr Thomas Akroyd MSc(Tech), a consulting engineer. One expert had told the
court that there must be upwards of 10,000 such vaults in the London area. He
(his Lordship) must first ask what caused the collapse. In any discussion on
causation there was a danger of driving into the semantic or even the
metaphysical, and the discussion would be better directed towards the issue of
fault. When the vault collapsed the earth moved downwards into the cavity above
the sewer. The issue was whether the existence of the cavity caused the collapse
or whether the collapse occurred for other reasons. He (Judge Smith) was not
satisfied that the collapse was caused by the existence of the cavity. If the
cavity was created by the settlement of the fill after back-filling in 1922,
then other evidence pointed to the extreme unlikelihood of such a cavity
causing the collapse. From the evidence it followed that if the cavity had been
formed because of the looseness of the back-filling it would have reached
almost its present size in five years or so. The cavity was then kept in
existence by an arch. The latter was sufficiently strong to bear all the loads
upon it until the collapse in 1970, which pointed to the intervention of some
new circumstance at that stage. Although experts had agreed that it was the
point load which was important, he (his Lordship) could not resist a feeling
that this very case might itself point to the increased weight of modern
lorries as being a factor contributing to the collapse. However, that formed no
part of his decision.
He would not
leave the matter without considering the question whether the cavity came into
existence because of the negligence of those who laid the sewer in 1922,
although this would only have been of importance if he had concluded that it
was the existence of the cavity which caused the collapse. It was accepted that
however well the back-filling was done some settlement would have occurred.
From what the court had heard, it seemed clear that causes of settlement and of
cavity formation were not yet so fully and sufficiently understood for a
conclusion to be drawn in this case as to why the cavity occurred. It was clear
that the existence of back-fill did create a condition in which voids might be
produced. But the reason or reasons for this might require much more
investigation, if the subject was still of interest to construction engineers.
While negligent back-filling might be one cause, he (Judge Smith) was far from
satisfied that it was the probable cause in this particular case. The
plaintiffs had not established negligence by the defendants, and it followed
that the plaintiffs’ claim was dismissed.
Judgment was
entered for the defendants with costs.
