Neighbours – Adjoining property – Water damage – Respondent’s property damaged by timber purlin falling away from appellant’s wall – Respondent claiming damages in nuisance — Judge finding appellant liable for actionable nuisance — Whether facts establishing such nuisance — Whether judge giving proper weight to expert evidence — Whether judge giving adequate reasons for decision – Appeal dismissed
The appellant and the respondent occupied adjoining business premises. The roof of the respondent’s building was supported by timber purlins set into one end of the wall of the appellant’s building. One of the purlins was damaged by wet rot and fell away from the appellant’s wall, causing the respondent’s roof to subside.
A downpipe that should have carried rainwater away from the appellant’s roof had become detached so that rainwater poured down the appellant’s wall and onto the respondent’s roof. The respondent claimed that the missing downpipe had caused the purlin to become waterlogged. It was common ground that the appellant’s wall, both above and below the respondent’s roof, was saturated with water owing to the constant flow of water. An expert instructed by the respondent was of the opinion that that dampness had penetrated into the respondent’s property, affecting the purlin. As a result, the respondent brought proceedings claiming damages against the appellant, contending that all the damage had been caused by the appellant’s nuisance.
The appellant argued that the water penetration had arisen from the respondent’s failure to repair defective flashing on its roof, although the respondent’s expert noted the coincidence of the position of the missing downpipe and the damage to the respondent’s flashing. It was therefore likely that the defective flashing could be attributed to the penetration and the rot.
At trial, the respondent admitted that water had penetrated through the roof before the purling had collapsed. However, the judge preferred the evidence of the respondent’s expert. He did not regard that evidence as unreliable in the light of the respondent’s admission and concluded that the damage to the property had resulted from the appellant allowing its property to fall into disrepair, which constituted actionable nuisance.
The appellant appealed, arguing that the judgment was defective and gave inadequate reasons in that it did not give proper weight to the respondent’s evidence concerning the earlier water penetration, which showed that the flashing had been defective before the failure of the purlin. The respondent therefore had failed to prove its case on the balance of probabilities.
Held: The appeal was dismissed.
The question to answer was what had caused the purlin to become saturated with water so that it developed wet rot, fell away from the wall and thus failed to support the roof. There was no doubt that a major factor was that the water fell from the appellant’s roof because of the absence of a downpipe, thereby saturating the brickwork.
In principle, the appellant’s failure to repair and replace the downpipe was conduct that constituted a nuisance, but it was actionable by the respondent only if it caused it damage. The recorder had found that the downpipe had been missing for more than six years and, on that basis, the respondent’s roof had been exposed to the resulting excessive fall of water thereby exposing the appellant’s wall to water saturation for such period as to cause the purlin to rot.
The judgment was neither wrong nor inadequately reasoned in the circumstances. The judge had given his judgment only one day after the conclusion of the evidence and argument, so that matters were fresh in the minds of all concerned. He referred expressly to the point in issue, namely whether the respondent’s admission that water had been coming through the roof before the purlin fell away undermined its case based on its expert’s evidence. His conclusion that it did not was eminently reasonable. From the transcript, it appeared that the judge had dealt fairly and efficiently with the trial. Having done so, he gave a clear and convincing judgment, with commendable speed after the trial, by which he resolved the questions entrusted to him in a proper manner, giving due weight to the evidence adduced and to the arguments on each side, and explaining his reasoning adequately.
Per curiam: A judge had to provide sufficient detail in his expressed reasoning to enable the parties to know how the case had been decided. However, it would be wrong to expect the judge’s reasoning to be fully developed and exposed in all cases and on all points. Judgments, which in general already tended to be too long, would otherwise become longer, and more time would elapse before they could be delivered.
James Boyd (instructed by Pearson Hinchcliffe LLP, of Manchester) appeared for the appellant; Simon Charles (instructed by Horwich Cohen Coghlan, of Manchester) appeared for the respondent.
Eileen O’Grady, barrister
