Insertion of lintel — Unknown flue-breast — Damage to adjoining floor — Whether owner liable in nuisance — Whether architect should have been aware of probable width of flue-breast from the London Building Act 1774 — Whether architect and builder negligent
The first defendants are a firm of solicitors; they hold separate leases of the first floors of two adjoining buildings nos 6 and 8, Duke Street, London W1. The second defendant was the first defendants’ architect who, in January 1986, supervised works at the premises for the formation of doorway openings through the load-bearing party wall between nos 6 and 8; the third defendant was the builder. While cutting the chase for the insertion of a supporting concrete lintel, a flue-breast was discovered into which brickwork fell causing lime mortar dust and damage to the exclusive and expensive merchandise in the plaintiff’s shop on the ground floor of no 8. The plaintiff claimed damages.
Held The claim against the first defendants was dismissed, but claims were allowed against the second and third defendants.
1. The proposed building works did not involve exceptional danger or a great and obvious danger that nuisance would be caused. Accordingly, by employing an experienced architect the first defendants were not liable in nuisance: Matania v National Provincial Bank Ltd [1936] 2 All ER 633 distinguished.
2. The buildings were constructed shortly after the London Building Act 1774 and the first defendant had assumed that the side breast to the flue would be two half-bricks and sufficient for the lintel; it was only one half-brick. That was an error as section 29 of the 1774 Act prescribed a minimum breast of 4ft. The first defendant was therefore negligent and should have realised that if the 1770s standards were observed the side breast was likely to have been only a half-brick. However, he was not negligent in failing to serve a party structure notice under the London Building Acts (Amendment) Act 1939 as at the first-floor level the wall was not a party wall under section 44 of the 1939 Act.
3. The third defendant was also negligent as he should have realised that there might have been a flue by reason of a projection into the affected room.
4. Damages were assessed at £9,600 apportioned between the second and third defendants as to 75% and 25% respectively.
Paul W Reid (instructed by John Byrne & Co) appeared for the plaintiffs; Julien Hooper (instructed by Hextall Erskine & Co) appeared for the first defendants; Dennis Naish (instructed by Bellmont & Lowe) appeared for the second defendant; and Graham Platford (instructed by Stanbury’s) appeared for the third defendant.
