Landslip causing collapse of hotel building owned by claimants – Whether council as owner of neighbouring downhill land owing duty of care to maintain support – High Court allowing claimants’ claim – Council’s appeal allowed
The claimants were the owners and occupiers of Holbeck Hall Hotel, a four-star hotel standing about 65m above sea level on South Cliff, Scarborough. The hotel looked out over an expanse of lawn to the North Sea. The defendant council owned land around the hotel, including the cliffs between the hotel grounds and the sea. The cliffs were inherently unstable and, since 1893, there had been a number of slips and collapses, particularly in 1989, that had required the council to carry out remedial works along the coastline. However, by 6 June 1993, as a result of a massive landslip, the lawn had disappeared and the ground had collapsed under the whole seaward wing of the hotel. The rest of the hotel was thereby rendered unsafe and was subsequently demolished.
The claimants brought an action for damages on the basis that the council, as the owners of the cliffs and nearby land, had been under a duty to maintain them. The High Court, applying Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485, held that the council, as owners of the downhill land, had owed a duty to the claimants to exercise a “measured duty of care” to reduce any hazard to the claimants of which they were aware: see Goldman v Hargrave [1967] 1 AC 645. The High Court concluded that, since the council had known of the hazards of failing to support the claimants’ land, they had failed in their duty of care and were accordingly liable for the damage.
The council appealed, contending that the decision in Leakey (supra) was confined to encroachments or escapes from a defendant’s land onto a claimant’s land. They argued that that case was not applicable to cases of failure of support by a neighbour to neighbouring land, where there had been no withdrawal of support, but mere omission. It was further contended that, although the council did foresee some damage to the claimants’ land if nothing were done about the existing slips and collapses, they could not reasonably have foreseen the catastrophic danger that materialised, and were not, therefore, liable for it.
Held: The appeal was allowed.
1. There was no difference between a danger due to lack of support and a danger due to escapes or encroachments from a defendant’s land. Encroachment was simply one form of nuisance; interference causing physical damage to a neighbour’s land was another. There was no reason why, where a defendant did not create the nuisance, but had adopted or continued it, different principles should apply. In each case, liability only arose if there was negligence, and the duty to abate the nuisance arose from the defendant’s knowledge of the hazard that would affect his neighbour.
2. In order to give rise to a measured duty of care, a defendant must know or be presumed to know of the defect or condition giving rise to the hazard, and must, as a reasonable man, foresee that the defect or condition would, if not remedied, cause damage to a claimant’s land. The defect had to be patent and not latent. It was no answer for the landowner to say that he did not observe a defect if a responsible servant had seen it, or if he, as a reasonable landowner, or the person to whom he entrusted the responsibility of looking after the land, should have seen it. However, if the defect was latent, the landowner or occupier was not to be held liable simply because he would have discovered it had he made further investigation.
3. In most cases where physical injury to a claimant’s property was reasonably foreseeable, the defendant would be liable for all damage of the type that was foreseeable, whether or not the actual extent of the damage was foreseeable. However, the council’s case was one of nonfeasance. They had done nothing to create the danger, and, accordingly, the scope of the duty was much more restricted.
4. The scope of the council’s duty was confined to an obligation to take care to avoid damage to the claimants’ land that they ought to have foreseen without further geological investigation. The duty might also have been limited by other factors, so that it was not necessarily incumbent on someone in the council’s position to carry out extensive and expensive remedial work to prevent the damage; the scope of the duty might be limited to warning the claimants of such risks as they were aware of, or ought to have foreseen, and sharing such information as they had acquired relating to it.
Chistopher Symons QC and Paul Reed (instructed by Kennedys) appeared for the claimants; Timothy Stow QC and Paul Darling QC (instructed by Hammond Suddards) appeared for the defendants.
Thomas Elliott, barrister
