· In both negligence and nuisance, a person who cannot prove actionable damage will lose the case
A person who feels aggrieved at the activities of another is often more concerned with the offending conduct than with its results. With regard to certain types of claim, the law shares this focus; provided that there has been a breach of contract or a trespass, the claimant is entitled to win the case, irrespective of whether he has suffered any loss as a consequence. True, in such cases the victim may be limited to an award of nominal damages, to mark the infringement of his legal rights. But even this does not necessarily follow. Many a trespass results in substantial damages, even though the land in question has suffered no physical harm.
That said, cases of this type are in the minority. Most legal actions require the claimant, as a prerequisite of success, to prove that he has suffered some injury, loss or damage of a kind recognised by the law. Thus, for example, a pedestrian who is merely alarmed by a crass piece of driving has no right to sue the driver; a case of negligence can arise only if the pedestrian is injured. It is all too easy to lose sight of this fundamental legal principle. However, as two recent decisions illustrate, it is still very much alive and in force.
Weatherburn v Joplings unreported 15 November 2001, concerned a terrace of four houses that were built in Ripon, North Yorkshire, in 1995. The area was underlaid by gypsum, which, as was well known, could dissolve in water and lead to the formation of underground caverns. These, in turn, could cause the land above to collapse, creating large holes known as “swallow holes”. In 1994, the builder commissioned a site report from a consulting engineer. This recommended a concrete raft construction, and concluded that, given such foundations, it would be safe to proceed with the planned construction.
In February 1995, while the houses were under construction, a 5.5m wide swallow hole opened up in the garden of a house (Field View) some 50m away. The engineer had been aware of this potential hole and had taken it into account in its report. Accordingly, the builder completed the houses and put them on the market.
Between October 1995 and January 1996, three of the houses were purchased by the claimants, each with the help of a mortgage. In April 1997, the Field View swallow hole increased to 10m in diameter, causing that house to be abandoned, the road to be closed and the mains services to be interrupted. Fearing that their properties had been irretrievably blighted, each of the claimants brought an action for negligence against the valuer who had inspected their house on behalf of their respective mortgage lender. Each claimed that, if properly advised, he or she would not have purchased their property, which had been diminished in value by its proximity to the swallow hole.
In relation to two of the three mortgage valuations, the defendants admitted that their respective valuers had been guilty of a breach of duty, in that their reports had failed to mention the gypsum problem. The report of the third stated generally that some properties in the general area, and one in the immediate vicinity, had been affected by gypsum-caused subsidence. But the report recommended no further inquiries, beyond checking that the builder had properly investigated the site prior to construction. In phrasing his report thus, the valuer was seeking to balance his duty to the building society and to the purchaser with a desire to avoid creating unnecessary property blight in the area by scaremongering. This approach won the approval of the judge, who viewed it as the action of a competent and responsible surveyor.
This finding was, of course, sufficient to dispose of one case. However, Judge Grenfell went on to deal with the question of loss in a way that was sufficient to defeat all three claims. His view was that, while all the properties were indeed affected by blight for a period following the 1997 collapse, that was only temporary, and had no doubt been cured by the subsequent filling-in of the Field View swallow hole. More importantly, there would have been no diminution in value, and no loss to any of the claimants, at the time the valuations were carried out.
The second case comes from a different area of law, namely the tort of nuisance. Goode v Owen [2001] PLSCS 278 concerned a farmer’s complaint that some 1,000 golf balls per year, from the defendant’s neighbouring driving range, were hit onto parts of his land. According to the claimant, this led, until 1996, to the loss of his entire hay crop from 27 acres, and, thereafter, from 18 acres (a fence erected by the defendant in 1996 subsequently protected part of the claimant’s land).
The trial judge accepted the claimant’s word, that hay that might contain golf balls was effectively unsaleable because of the risk it posed to animals to which it was fed. He also accepted that, once the golf ball-affected areas were excluded, the remaining fields became so difficult to mow that the claimant was justified in not doing so. The judge was therefore minded (subject to the necessary planning permission being obtained) to order the defendant to erect a 40ft high fence at a cost of some £60,000.
The Court of Appeal emphatically disagreed. In its view, the nuisance (confined to some 2.5 acres) did not prevent the claimant from growing and cutting hay on his remaining land. He should be entitled to damages only in respect of the loss of crop from the affected areas. Moreover, to order the erection of a fence (which would, in any event, not cure the problem entirely) would be disproportionate to the harm suffered, and could not be justified.
John Murdoch, professor of law, Reading University
