Nuisance — Interference with right of support to land — Whether landowner has cause of action to recover damages incurred in effecting remedial works to prevent anticipated collapse of land
appellants, Midland Bank plc, are the lessees and occupiers of Oxgate House,
Oxgate Lane, London NW2, premises which adjoin a development site — During 1985
the development site was being developed by the first respondents, Bardgrove
Properties Ltd, who had employed as their main contractor the second
respondents, John Willmott (WB) Ltd — In March 1985 the second respondents
excavated the development site exposing at the common boundary with the
appellants’ land a vertical earth face — In accordance with a design prepared
by the third and fourth defendants, Marshall Botting Associates and Structural
Design Partnership, the second respondents erected temporary works in the form
of shoring — Despite the temporary protection, the appellants’ land subsided
along the line of the boundary and physical damage was caused to a roadway on
the premises, a plinth and fence and a pipe carrying a gas supply was ruptured
— Upon the damage becoming evident, the temporary work was modified, the
roadway, plinth and gas-supply pipe were repaired and no further physical
damage has appeared to or upon the premises — Later in 1985 the second
respondents replaced the temporary shoring with a permanent retaining wall which,
for the purposes of the trial of a preliminary issue, is assumed to have been
inadequate because it is accepted that there is a probability of rotational
collapse occurring within a period of 10 to 20 years of its construction — In
August 1987, on their own initiative, the appellants carried out sheet-piling
works on their side of the boundary line to prevent further subsidence and to
restore their land to its former state of stability at a cost of £230,000 — On
a trial of a preliminary issue, Judge Thayne Forbes QC, sitting as an Official
Referee, adjudged that the bank had no cause of action against any of the named
defendants — On appeal, the question was whether the occurrence of actual
physical damage is a necessary ingredient of the tort of interference with a
neighbour’s right to the support of his land or whether the future potential of
damage was sufficient
House of Lords upheld a decision of the Court of Exchequer Chamber specifically
overruling Nicklin v Williams and confirming that the right of
action for withdrawal of support of land arose when the injury actually
occurred — The dissenting judgment of Lord Cockburn CJ in Lamb v Walker,
that the right of recovery in respect of any tortious act was limited to the
actual damage caused by that tortious act and did not extend to future damage
such as depreciation in the value of premises, was fully restored by the House
of Lords’ decisions in Darley Main Colliery Co v Mitchell and West
Leigh Colliery Co v Tunnicliffe & Hampson Ltd — There was no
balance of convenience in favour of allowing the appellants to claim damages
for the work they had carried out — The appellants had taken it upon themselves
voluntarily to execute works without giving the respondents the opportunity for
further supporting the land by bringing proceedings for an injunction — There
is no support in the authorities for the proposition that an established
potential risk of future physical damage is a sufficient substitute for actual
physical damage as the requirement to complete the cause of action in tort —
Existing potential future risk of physical collapse as sounding in damages
cannot logically be distinguished from damages but the depreciation in the
value of the land caused by that potential risk
The following
cases are referred to in this report.
Backhouse v Bonomi (1861) 9 HL Cas 503; EB&E 646
Darley
Main Colliery Co v Mitchell (1886) 11 App
Cas 127; 2 TLR 301, HL
Hodsoll v Stallebrass (1840) 11 Ad & El 301
Lamb v Walker (1878) 3 QBD 389; 47 LJQB 451; 38 LT 643; 42 JP
532; 26 WR 775, DC
Nicklin v Williams (1854) 10 Ex 259
Redland
Bricks Ltd v Morris [1970] AC 652; [1969] 2
WLR 1437; [1969] 2 All ER 576, HL
West
Leigh Colliery Co v Tunnicliffe & Hampson
Ltd [1908] AC 27
This was an
appeal against the decision of Judge Thayne Forbes QC, sitting as an Official
Referee on October 11 1991 ([1991] 2 EGLR 283), whereby, on a trial of a
preliminary issue based upon certain facts, he adjudged that the appellants,
Midland Bank plc, had no cause of action against any of the four defendants,
namely Bardgrove Property Services Ltd, John Willmott (WB) Ltd, Marshall
Botting Associates and Structural Design Partnership.
John Uff QC
and Timothy Straker (instructed by Nabarro Nathanson) appeared for the
appellants; Nicholas Dennys QC and Stephanie Barwise (instructed by Shoosmith
& Harrison, of Reading) represented the first and second defendants; the
third and fourth defendants did not appear and were not represented.
Giving
judgment, PURCHAS LJ said: This is an appeal by Midland Bank plc (‘the
bank’) from a judgment of Judge Thayne Forbes QC, sitting as an Official
Referee on October 11 1990. The judge, on a trial of preliminary issues based
upon certain facts assumed for the purpose of those issues, adjudged that the
bank had no cause of action against any of the four named defendants. The two
defendants with which this appeal is concerned are Bardgrove Property Services
Ltd (‘Bardgrove’), which is a property development company, and John Willmott
(WB) Ltd (‘Willmott’), which was the building contractor employed by Bardgrove
as main contractor for carrying out their development at a site known as the
Oxgate Centre, to which I shall hereafter refer as ‘the development site’. The
bank are the lessees and occupiers of premises known as Oxgate House, Oxgate
Lane, London NW2, which adjoins the development site with which they share a
common boundary.
not appeared. They acknowledge that they are bound by the results of the appeal
as being the occupiers of the development site and therefore vicariously liable
for any acts of Willmott performed in the course of their operation as main
contractor. The remaining two defendants, who have not taken part in the
appeal, are Marshall Botting Associates, who are a firm of consulting
structural engineers retained to advise upon and design certain temporary
shoring works (‘the temporary works’). The fourth defendants are Structural
Design Partnership, consulting engineers, who were retained by Bardgrove to
advise upon and to design both temporary and permanent works in connection with
the excavation of the development site preparatory to development. I shall
hereafter refer solely to Willmott in considering the question of liability
raised upon the preliminary issues.
The sole
question raised in this appeal is the extent of the liability upon Willmott for
interference with the bank’s right of support to their land. This is a right which
attaches to the land. The relevant facts, which for the purposes of the hearing
before the Official Referee were assumed to have been proved by the bank, can
be shortly stated. In March 1985 Willmott excavated the development site
exposing at the common boundary with the bank’s land a vertical earth face. In
accordance with a design prepared by the third and fourth defendants Willmott
erected temporary works in the form of shoring. This consisted of a series of
steel-braced frames set in concrete, which supported horizontal wooden railway
sleepers. The space between the sleepers and the excavated earth face was then
filled with unconsolidated clay. Despite this temporary protection the bank’s
land subsided along the line of the boundary between their premises and the
development site with the result that physical damage was caused to a roadway
on the premises. Damage was also occasioned to a plinth and fence and a pipe
carrying a gas supply was ruptured.
Upon the
damage becoming evident the temporary works were modified. The unconsolidated
clay was removed and replaced by mass concrete. Thereafter the roadway, plinth,
fence and gas-supply pipe were repaired. No further physical damage has
appeared to or upon the premises. Later in 1985 Willmott replaced the temporary
shoring with a permanent retaining wall. This wall, for the purposes of the
preliminary issues, is assumed to have been inadequate to the following extent.
Although it has for the time being arrested any further subsidence of the
bank’s land, it is accepted that there is a probability of rotational collapse
occurring within a period of up to 10 to 20 years of its construction. Although
there has been some dispute as to whether this assumed fact means that there is
no probability of rotational failure for at least 10 years, but that it might
occur between 10 and 20 years, or whether the risk of rotational collapse is
already present and may manifest itself within the next 10 to 20 years, happily
it is not necessary for the purposes of this appeal to resolve this dispute.
There was,
however, no further movement of the bank’s land between the construction of the
permanent retaining wall in 1985 and August 1987, when, on their own initiative
and upon their own land, ie to their side of the boundary line, the bank
themselves carried out sheet-piling works to prevent further subsidence and to
restore their land to its former state of stability. The construction of this
protection eliminated the risk of further rotational collapse within 10 to 20
years, which had existed as a result of the shortcomings of the permanent
retaining wall constructed by Willmott. The installation of the sheet piling
involved the bank in a considerable cost put at a figure of £230,000. The issue
is whether this is recoverable from Willmott and Bardgrove as damages for
interference with the bank’s natural right to support enjoyed by them as
occupiers of the land at Oxgate House.
The cost of
reinstatement of the damage which occurred between the erection of the
temporary shoring and first permanent wall is not an issue in this appeal as a
direct incident of damage. The question can be further refined in the form: is
the occurrence of actual physical damage a necessary ingredient of the tort of
interference with a neighbour’s right to the support of his land or is the
future potential of damage as defined in the premises of the preliminary point
sufficient?
The right
under consideration is free-standing and arises out of the occupation of land.
In this respect it is to be distinguished from an easement which can be
acquired, for instance, in respect of buildings erected upon the land requiring
more support than that required in its natural unencumbered state. Originally
the right to support was held to be independent of damage occurring: see Nicklin
v Williams (1854) 10 Ex 259:
Held: — that the cause of action was not the damage done to the
plaintiffs’ land and houses by improperly working the mines, but the injury to
the plaintiffs’ right to have their land and houses supported by the contiguous
land and strata of coal; and, therefore, when any part of the necessary support
was removed, although no actual damage, there was a complete cause of action
for which the plaintiffs might have recovered prospective damage, and no new
cause of action arose from the subsequent damage; . . .
This case,
like most of the earlier authorities, was concerned with mining subsidence. The
question in issue was the moment in time when the right of action arose for the
purposes of limitation rather than where a cause of action arose when no damage
had yet physically occurred. Mr Uff QC, who appeared for the bank, invited the
court in approaching the authorities to bear this distinction in mind; namely
that, unless the cause of action depended upon the occurrence of actual injury,
the plaintiffs would lose their right of action because they would have been
unaware of their right of action when the cause of action originally arose.
In Backhouse
v Bonomi (1861) 9 HL Cas 503 the House of Lords upheld a decision of the
Court of Exchequer Chamber specifically overruling Nicklin v Williams
and confirming that the right of action for withdrawal of support of land arose
when the ‘injury actually occurred’. The judgment in the Court of Exchequer
Chamber was delivered by Willes J: see (1861) EB&E 646. In commenting upon Nicklin
v Williams, Willes J pointed out that, if the right of action accrued
when the excavation was made but before any physical damage became apparent,
there were a number of disadvantages. Before the occurrence of the damage a
jury would have to speculate, acting upon professional evidence, about the
damage likely to occur and might well in some cases give large sums of money
for apprehended damage when no damage eventually occurred. On the other hand,
they might give no or small damages, when the damage which did result might be
catastrophic. These advantages arose from the principle which dictates that a
plaintiff suing for damages must recover the totality of his damages once and
for all. Moreover, in certain circumstances, particularly where subterraneous
excavations effectively withdrew support, the person to whom the right of
action accrues might be blissfully ignorant thereof until after the passage of
the time for limitation.
Turning to the
judgment of Willes J, I cite only one short passage at p 658:
We are not
insensible to the consideration that the holding damage to be essential to the
cause of action may extend the time during which persons working minerals and
making excavations may be made responsible; but we think that the right which a
man has is to enjoy his own land in the state and condition in which nature has
placed it, and also to use it in such manner as he thinks fit, subject always
to this: that if his mode of using it does damage to his neighbour, he must
make compensation. Applying these two principles to the present case, we think
that no cause of action accrued for the mere excavation by the defendant on his
own land, as long as it caused no damage to the plaintiff; and that the cause
of action did accrue when the actual damage first occurred.
In the House
of Lords, after taking the advice of the Lord Chief Baron and other judges, the
noble and learned lords delivered their opinions. Per the Lord
Chancellor at p 512:
. . . I think
it is abundantly clear, both upon principle and upon authority, that when the
enjoyment of the house is interfered with by the actual occurrence of the
mischief, the cause of action then arises, and that the action may then be
maintained . . . I will only take this opportunity of observing that, with
regard to the case of Nicklin v Williams, the decision of that
case is, I think, beyond all question . . . I think that, for the reasons that
were given in the Court of Exchequer Chamber, the judgment there pronounced in
this case ought to be affirmed . . .
And per
Lord Cranworth at p 512:
. . . It has
been supposed that the right of the party whose land is interfered with, is a
right to what is called the pillars or the support. In truth his right is a
right to the ordinary enjoyment of his land, and till that ordinary enjoyment
is interfered with, he has nothing of which to complain. That seems to be the
principle upon which this case ought to be disposed of; and it appears to me to
be, to some extent, analogous to this sort of case. Suppose a slander to be
uttered, which is not actionable in itself, but under which special damage may
arise and does arise to somebody afterwards, the person complaining of that
special damage can bring no action until he has sustained actual damage.
In light of
the submissions made by Mr Uff I wish to draw attention to two phrases, namely
‘actual occurrence of the mischief’ (per the Lord Chancellor) and ‘has
sustained actual damage’ (per Lord Cranworth).
In Lamb
v Walker (1878) 3 QBD 389 the claim by the plaintiff was for damages for
injury to his land and buildings by the removal of lateral support through
mining operations carried on by the defendant on his adjoining land. The
referee found an amount for damages resulting from the actual physical injury
to the land and awarded, in addition to the existing damage, future damages to
the extent of £150. The majority of the Queen’s Bench Division (Mellor and
Manisty JJ) held that the additional figure for future damages was recoverable.
Lord Cockburn CJ, following Backhouse v Bonomi, held that as
damage was the gist of the action, only damage actually accrued could be
recovered in the action and that any further damage must be recovered when it
actually occurred in a subsequent action. The view of the majority was that,
while withdrawing support without damage did not constitute a cause of action,
when there was both a withdrawal of support and consequential damage, then the
right of action was complete (damnum cum injuria) and that thereafter
all further damage flowing from this tortious act was recoverable, including
future losses, on the basis of recovery once and for all: see per Mellor
J at p 397:
. . . The act
done by the defendant, so long as he confined his excavations to his own
property, was a lawful exercise of his right, but as soon as he, in the
otherwise lawful exercise of his rights, excavated on his own land to an
extent, and in a manner which caused actual damage to the plaintiff’s property,
then the act, ipso facto, became tortious, and the plaintiff became entitled to
maintain his action. It appears to me that it is not correct to say that the
action is for damage only, because it will not lie until actual damage occurs.
It is still the combination of the ‘injuria and damnum’ which gives the right
of action to the plaintiff, and the defendant becomes liable at once to the
plaintiff for all the injurious consequences, whether present or in future,
which result from the acts of the defendant, so become tortious, and whether he
will bring his action immediately upon the manifestation of damage, or wait for
further development of it, is at his option, but whether he elects to bring his
action immediately or prefers to wait for the complete development of the mischief,
subject to the risk arising under the Statute of Limitations, he can only, as
it appears to me, have one action and one recovery for all the damage
occasioned by the defendant’s wrongful acts.
In his
dissenting judgment, Lord Cockburn CJ held that the right of recovery in
respect of any tortious act was limited to the actual damage caused by that
tortious act and did not extend to future damage such as depreciation in the
value of the premises: see at pp 400 to 404:
. . . The
fundamental principle on which the decision in Backhouse v Bonomi
proceeds is, that no cause of action arises in respect of what a man does on
his own land, until actual damage arises therefrom to the property of the
adjoining owner. According to that decision there is no abstract right of
support, independent of acquired easement, from adjacent strata, and the
removal of such strata constitutes in itself no wrong. No wrong arises to A,
from the excavation of B, on his own soil though the stability of A’s adjoining
land may be thereby endangered, unless and until A sustains actual damage
therefrom. And the reason is that the law does not recognise any right in A to
the support of the adjacent soil, otherwise than as involved in the larger
proposition that he is entitled to the enjoyment of his own property
undiminished and unaltered by any use which B may make of his. B may use his
own property as he pleases, provided in so doing he does not do actual damage
to his neighbour’s property or diminish or disturb his neighbour’s enjoyment of
it.
. . .
In this view
the mere withdrawal of the support afforded by the adjacent or subjacent
strata, by the excavation of the adjoining soil, gives of itself no right of
action to the adjoining owner, not even though, from the knowledge of the fact of
such excavation having been made, and the apprehension of possible
consequential damage, or even the certainty that such damage must result, the
value of the property should be prejudicially affected. Hence, too, if, by the
substitution of artificial for the natural support, the excavating owner can
avert the mischief which would otherwise arise, no wrong is done and no cause
of action accrues. In both cases the owner has only done what he pleased with
his own; in neither has there been any actual interference with his neighbour’s
enjoyment of his property.
. . .
Of course I
do not lose sight of the rule that damages resulting from one and the same
cause of action must be assessed and recovered once and for all. But the rule
seems to me to have no application in the present case, it being, in my view of
the effect of Backhouse v Bonomi, a mistake to say that the
plaintiff had a right to the support of the adjacent strata, and that the
removal of these constituted a violation of this right, by reason of which,
when damage supervened, a cause of action arose. The plaintiff, as I read the
judgment in Backhouse v Bonomi, had no right to the support of
the strata. His only right was to the undisturbed enjoyment of his own
property, and it was only when, and so far as that enjoyment was interfered
with, that he sustained a wrong. It is not enough to say that the value of the
plaintiff’s property has been diminished by the withdrawal of the support. It
is not the diminished value of the property which makes the withdrawal of the
support wrongful; otherwise any appreciable diminution in the value, consequent
on the removal of the support, from prospective damage which might properly be
anticipated to result from it, would constitute, independently of actual
damage, a damnum in respect of which a plaintiff could recover, a position
which, according to Backhouse v Bonomi, certainly cannot be
maintained.
The question
of liability for damage caused by future subsidence which was triggered by
mining operations in a neighbouring area, but was directly connected with the
original excavation by the defendant and which would have been prevented if the
latter had left in place adequate support, was considered in the case of Darley
Main Colliery Co v Mitchell (1886) 11 App Cas 127. The House, Lord
Blackburn dissenting, held that the cause of action in respect of future
subsidence did not arise until that subsidence occurred and that therefore the
respondents could maintain an action for injury thereby occasioned, although
more than six years had passed since the last working of their mine by the
defendants. Mr Uff distinguished this case as being one decided on its own
peculiar and special facts, namely repeated subsidence directly attributed to
the original excavation. Lord Halsbury followed Backhouse v Bonomi
at pp 133 and 134:
. . . that
case established that it is the damage and not the excavation which is the
cause of action. I cannot understand why every new subsidence, although
proceeding from the same original act or omission of the defendants, is not a
new cause of action for which damages may be recovered. I cannot concur in the
view that there is a breach of duty in the original excavation.
. . .
I think the
decision of this case must depend as a matter of logic upon the decision of
your Lordships’ House in Bonomi v Backhouse, and I do not know
that it is a very legitimate inquiry, when a principle has been laid down by a
tribunal from which there is no appeal, and which is bound by its own
decisions, whether that principle is upon the whole advantageous or convenient;
but if such considerations were permissible, I think Cockburn CJ in his
judgment in Lamb v Walker establishes the balance of convenience
to be on the side of the law, as established by Bonomi v Backhouse.
I cannot logically distinguish between a first and a second, or a third, or
more subsidences, and after Bonomi v Backhouse it is impossible
to say that it was wrong in any sense for the defendant to remove the coal.
Cresswell J has said, and I think rightly, that he might remove every atom of
the mineral.
The wrong
consists, and, as it appears to me, wholly consists, in causing another man
damage, and I think he may recover for that damage as and when it occurs.
Mr Uff
submitted that the effect of their lordships’ speeches in Darley Main
Colliery Co v Mitchell may have been to overrule the reasoning of
the majority of the court in Lamb v Walker, inasmuch as the
majority held that future loss was recoverable but that it by no means restored
or approved the dissenting judgment of Cockburn CJ when he said that
compensation was recoverable only for actual damage sustained. Mr Uff submitted
that damages resulting from ‘interference with the enjoyment of the land
although no physical injury was manifested which was caused by the reasonable
apprehension of subsequent damage were recoverable’. He distinguished damages
of this nature from damages for depreciation in the value of the premises which
it can no longer be argued are recoverable. Turning now to the speech of Lord
Blackburn where he considers the case of Lamb v Walker at p 137:
. . . He
[Cockburn CJ] enters into elaborate reasoning to support this opinion, which I
shall examine presently. I think if that opinion had prevailed in Lamb v
Walker, and a judgment had been given accordingly, that decision would
have been, not only not an authority against the plaintiff in this case, but an
authority in his favour as far as the defence of the Statute of Limitation is
concerned.
There must
have been some understanding between the counsel for the plaintiff and for the
defendants in this case as to what was to be done in case the final decision on
this very important question was in conformity with the opinion of Cockburn
LCJ. And I think, though I wish it had been expressly stated, it must now be
taken that the defendant’s counsel agreed that he would not, on the evidence
then before the Court, ask for a verdict on any of the other defences, but
would in that case consent to have the damages settled by arbitration.
Having
referred to the judgment of Lord Cockburn CJ when he dissented from the view
that the plaintiff would be entitled to recover in this respect prospective
damage, ie damage which had not actually occurred and which might never arise,
Lord Blackburn continued:
Cockburn LCJ
could not in Lamb v Walker have meant to go so far as to say that
if a house had been shaken, and was evidently going to fall, but had not yet
completely fallen when the writ issued, the plaintiff could only recover for what
had already occurred, and would have to bring a fresh action when a further
chimney fell. He has not quite sufficiently guarded himself from saying so.
After a close
analysis of the judgments of Manisty J and Lord Cockburn CJ, which I need not
set out in this judgment, Lord Blackburn came to the following conclusions at p
141:
I think that Bonomi
v Backhouse does decide that there is no cause of action until there
is actual damage sustained, and does decide that the Court of Exchequer erred
when in Nicklin v Williams they said that there was an injury to
the right as soon as the support was rendered insufficient, though no damage
had occurred. But I do not think that it all follows from this that the act of
removing the minerals to such an extent as to make the support insufficient is
an innocent act rendered wrongful by the subsequent damage. That would be a
great anomaly, for I think there is no other instance in our laws where an
action lies in consequence of damage against a person doing an innocent act.
There are many where no action lies against the doer of an improper act, unless
and until damage accrues. One is alluded to by Lord Cranworth. The cause of
action against the speaker of words not actionable per se consists in the
speaking of the words and the damage.
Lord Blackburn
thereafter pursued the analogy with other torts, the constitution of which
included proof of actual damage or special damage according to the phrase
adopted. He then referred to the judgment of Littledale J in Hodsoll v Stallebrass
(1840) 11 Ad&E1 301 at p 305:
It is argued
that a fresh action might be brought from time to time; but that is not so, the
action being founded, not upon the damage only, but upon the unlawful act, and
the damage. Without the special damage this action would not be maintainable at
the plaintiffs’ suit. A fresh action could not be brought unless there were
both a new unlawful act and fresh damage.
Lord
Blackburn, having referred to this passage, said: ‘This I think indicates the
real principle.’
Turning now to
the speech of Lord Bramwell at pp 145 to 147:
There is still
another class of cases to be considered, viz, those where the act causing
damage is not in itself wrongful. No easier case can be taken than the above
ground case of an excavation, whereby an adjoining owner’s soil is let down. It
cannot be said that the act of excavation is unlawful. A contract to do it
could be enforced. No injunction against it could be obtained unless injury was
imminent and certain. What would be the rights of the person damaged in such a
case? I think the former reasoning would
apply. If there was an excavation 100 yards long, and fifty feet of the
neighbouring soil fell in, the right of action would be in respect of those fifty
feet, and not only in respect of what had fallen in, but what would in future
fall in along the fifty feet. But if afterwards the other fifty feet fell in
there would be a fresh cause of action. Surely this must be so. If ten feet at
one end fell in and afterwards ten feet at the other, it would be impossible to
say that there would not be two causes of action. If the excavation was on two
sides of a square, the same consequences. The Attorney-General denied this, and
was driven to do so. But suppose A owned the adjoining property on one side,
and B that which was at right angles to it, there must then be two causes of
action.
. . .
It seems to
me not to matter that the subsidence was of the same spot, nor that the
immediate cause of the second subsidence was the non-existence of coal underneath
that spot. Two damages have been occasioned to the plaintiff, one directly and
immediately by the removal of the coal under his surface: the other by that and
removal of other coal, and consequent creeping and further subsidence. The
Attorney-General, as I have said, denied that there could be two causes of
action if two different parts of the plaintiff’s land subsided at two different
times. But surely there must be. Suppose the two pieces belonged to different
owners, as I have suggested.
Of course one
can see the danger and inconvenience that will follow. This damage accrues many
years after the defendants’ act or omission which has caused it. If my
reasoning is right, many years hence there might be a further action from some
further subsidence. But the inconvenience is as great the other way. For if the
defendants are right, it follows that on the least subsidence happening, a
cause of action accrues once and for all, the Statute of Limitations begins to
run, and the person injured must bring his action, and claim and recover for
all damages, actual, possible or contingent for all time.
Lord
Fitzgerald did not start from an analysis of Lamb v Walker and Backhouse
v Bonomi but set out four propositions which he deduced from the
authorities: see pp 147-148:
1. That the
owner of the surface has a natural and legal right to the undisturbed enjoyment
of that surface in the absence of any binding agreement to the contrary.
2. That the
owner of the subjacent minerals may excavate and remove them to the utmost extent,
but should exercise that right so as not to disturb the lawful enjoyment of the
owner of the surface.
3. That the
excavation and removal of the minerals does not, per se, constitute any
actionable invasion of the right of the owner of the surface, although
subsequent events show that no adequate supports have been left to sustain the
surface.
4. But that,
when, in consequence of not leaving or providing sufficient supports, a
disturbance of the surface takes place, that disturbance is an invasion of the
right of the owner of the surface, and constitutes his cause of action.
The
foundation of the plaintiff’s action then seems to be that although the
excavations of the minerals were acts by the defendants in the lawful enjoyment
of their own property, yet when subsequently damage arose therefrom to the
plaintiff in the enjoyment of his property, the defendants became responsible.
For although
the law encourages a man to the free use of his own property, yet, if in doing
a lawful thing in the enjoyment of that property he occasions damage to his
neighbour which might have been avoided, he will be answerable for that damage
whenever it occurs.
Lord
Fitzgerald then observed that the defendants had not since 1868 committed any
act of commission which would contribute to subsidence, but that a fresh creep
and subsidence took place in 1882, which would not have taken place had the
defendants left sufficient natural support under the plaintiffs’ land. He then
referred to the rule providing that damages resulting from one and the same
cause of action must be assessed and recovered once and for all, and continued
at p 150:
That rule was
applied by the majority of the court in Lamb v Walker, and is not
controverted. It is not inflexible, and admits of exceptions.
We have to
consider what was the cause of action in 1868, and whether the cause of action
of 1882 (the creep and subsidence of 1882), is one and the same cause of action
as that of 1868. If it is so, then the defendants are entitled to succeed on
the defence of the Statute of Limitations.
This appeal
represents a class of cases peculiar and exceptional, to meet which and to
avoid grave inconvenience, if not injustice, our flexible common law has
somewhat moulded itself. I deprecate discussing some of the arguments addressed
to us, which seem to me to be too fine, such as for instance whether the
original act of the defendants was ‘innocent’, or ‘perfectly innocent’. The
question here is not whether the original act of the defendants was ‘innocent’,
but whether the defendants have occasioned damage to the plaintiff without any
inevitable necessity.
I am of the
opinion that Cockburn LCJ in the case of Lamb v Walker, and the
Court of Appeal in the case before us, were respectively right in resting on Backhouse
v Bonomi, and deducing from it a principle which governs the
question . . .
–at p 151–
There was a
complete cause of action in 1868, in respect of which compensation was given,
but there was a liability to further disturbance. The defendants permitted the
state of things to continue without taking any steps to prevent the occurrence
of any future injury. A fresh subsidence took place, causing a new and further
disturbance of the plaintiff’s enjoyment, which gave him a new and distinct
cause of action.
If this view
is correct, then it follows that the cause of action now insisted on by the
plaintiff is not the same cause of action as that of 1868, but is in point of
law, as it is physically, a new and independent cause of action arising in
1882, and to which the defence of the Statute of Limitations is not applicable.
The necessary
conclusion is that Lamb v Walker was not correctly decided, and
that the able reasoning of Cockburn LCJ in that case ought to have prevailed.
Mr Uff
submitted that these authorities supported his contention that the particular
circumstances in Darley Main Colliery Co v Mitchell did not
strike at the principle that for an established tortious wrong the plaintiff
must recover his damages once and for all. The circumstances which
distinguished the Darley Main Colliery case from the other cases were
the peculiar repetition of the creep causing a new subsidence in futuro.
This in the exceptional circumstances was held to give rise to subsequent and
repeated new causes of action. His submission was that in the present case
these particular circumstances did not exist and was clearly to be
distinguished as it concerned the latent or potential future risk of rotational
collapse. He submitted that as under the principle that damages must be
recovered once and for all and the fact that the potential damage related to an
existing lack of stability, which directly diminished the present enjoyment of
the surface of the land by the bank, this was a sufficient damnum which
could be attached to the existing injuria, namely the existing
excavation associated with the inadequate, by concession, permanent retaining
wall so as to sustain a continuing cause of action. This he distinguished from
those cases where it was attempted to assert unsuccessfully that damage to the
value of the land caused by a future risk of further subsidence was not
recoverable.
Finally, Mr
Uff referred to the ‘balance of convenience’ argument to which the various
judges made reference in one way or another. He submitted that the court should
(take cognisance of the fact) that the mining authorities relating as they
almost exclusively did to the question as to whether the plaintiff had lost his
right of action through the Statutes of Limitation and should bear this in mind
from the present case when the question of convenience was considered. In the
present case the bank would permanently lose the
they had acted prudently to eliminate the potential risk of further rotational
collapse. If, therefore, the bank were not able to recover the cost of this
work by connecting it with the existing excavations (injuria) and the
past physical damage to the roadway, plinth and gas pipe (damnum), there
could be no future tort in respect of which the bank could claim the damages
sustained in erecting the sheet piling required to relieve themselves of the
potential threat of rotational collapse.
Mr Dennys, who
appeared for Willmott, submitted that the majority judgments in Lamb v Walker
were certainly overruled by Darley Main Colliery Co v Mitchell and
referred the court to the case of West Leigh Colliery Co v Tunnicliffe
& Hampson Ltd [1908] AC 27. In this case the plaintiff claimed damages
for depreciation in the market value of his property which was attributable to
the risk of future subsidence. Their lordships were firmly of the view that such
damages could not be recovered and that the surface owner must wait until the
physical damage had actually occurred. Lord Macnaghten in his speech said, at
pp 29 to 30:
If this be
so, it seems to follow that depreciation in the value of the surface owner’s
property brought about by the apprehension of future damage gives no cause of
action by itself. That was the conclusion reached by Cockburn CJ in his
dissentient judgment in Lamb v Walker, which was approved in this
House in the Darley Main Colliery case. I think, as the Chief Justice
thought, that this conclusion necessarily follows from the principles asserted
by the noble and learned Lords who took part in Backhouse v Bonomi,
and particularly by Lord Cranworth and Lord Wensleydale. But if depreciation
caused by apprehension of future mischief does not furnish a cause of action by
itself, because there is no legal wrong, though the damage may be very great,
it is difficult to see how the missing element can be supplied by presenting
the claim in respect of depreciation tacked on to a claim in respect of a wrong
admittedly actionable.
Lord Ashbourne
expressed a similar view. However, referring to the question of right of
enjoyment, he said at p 31:
The
excavations in themselves give no right of action. It is only the damage caused
to the respondents’ right of enjoyment of their property by a subsidence caused
by the excavations that gives any right of action. Before any subsidence it
might be that the known excavations and the fears resulting therefrom would
cause a depreciation in the value of the property for which no action would
lie. The fear of a subsidence, although founded on the known fact of extensive
excavations, cannot give any cause of action, even although there may have been
already a subsidence.
This passage
so directly relates to the circumstances of this case and the contentions
presented by Mr Uff that, in my judgment, it seems difficult to escape the
conclusion that the bank must fail on this point. It is also clear that their
lordships were of the view that the dissenting judgment of Lord Cockburn CJ had
been fully restored and was accepted as authority on this question.
Finally, I
would wish to refer to the case of Redland Bricks Ltd v Morris [1970]
AC 652 to which we were also referred by Mr Dennys. In this case an action had
been brought by Mr and Mrs Morris, who occupied an area of some 8 acres of land
used as a market garden, which sloped towards and adjoined land occupied by the
brick company, upon which they had excavated a large pit in the process of
extracting clay. Mr and Mrs Morris’ land began to slip on to the brick
company’s land. The brick company undertook certain remedial work, which was
ineffectual, and further slips occurred. It was agreed that the only sure way
of restoring support to Mr and Mrs Morris’ land was by back-filling the brick
company’s pit, which would have been an extremely expensive operation. Mr and
Mrs Morris brought an action in the county court and recovered damages for the
injury already suffered by their land and also obtained injunctions: (1)
restraining the brick company from interfering with the support of their land
by further excavations; and (2) a mandatory injunction directing them to take
all necessary steps to restore support to their land within six months. The
appeal was allowed on the basis that the brick company not having behaved
unreasonably but only tortiously and since the mandatory injunction imposed an
absolutely unqualified obligation to restore support without giving any
indication of what work was to be done, it offended a basic principle in the
grant of equitable relief of this nature and would accordingly be discharged.
The speech of Lord Upjohn, with which the other learned and noble lords
concurred, endorsed the law as settled in Darley Main Colliery Co v Mitchell,
namely at p 664C:
that if a
person withdraws support from his neighbour’s land that gives no right of
action at law to that reighbour until damage to his land has thereby been
suffered; damage is the gist of the action. When such damage occurs the
neighbour is entitled to sue for the damage suffered to his land and equity
comes to the aid of the common law by granting an injunction to restrain the
continuance or recurrence of any acts which may lead to a further withdrawal of
support in the future.
. . .
But the
granting of an injunction to prevent further tortious acts and the award of
compensation for damage to the land already suffered exhausts the remedies
which at law and (under this heading) in equity the owner of the damages and
injunctions.
But to
prevent the jurisdiction of the courts being stultified equity has invented the
quia timet action, that is an action for an injunction to prevent an
apprehended legal wrong, though none has occurred at present, and the suppliant
for such an injunction is without any remedy at law.
. . .
My Lords,
quia timet actions are broadly applicable to two types of cases: first, where
the defendant has as yet done no hurt to the plaintiff but is threatening and
intending (so the plaintiff alleges) to do works which will render irreparable
harm to him or his property if carried to completion. Your Lordships are not
concerned with that and those cases are normally, though not exclusively,
concerned with negative injunctions. Second, the type of case where the
plaintiff has been fully recompensed both at law and in equity for the damage
he has suffered but where he alleges that the earlier actions of the defendant
may lead to future causes of action. In practice this means the case of which that
which is before your Lordships’ House is typical, where the defendant has
withdrawn support from his neighbour’s land or where he has so acted in
depositing his soil from his mining operations as to constitute a menace to the
plaintiff’s land. It is in this field that the undoubted jurisdiction of equity
to grant a mandatory injunction, that is an injunction ordering the defendant
to carry out positive works, finds its main expression, though of course it is
equally applicable to many other cases. Thus, to take the simplest example, if
the defendant, the owner of land, including a metalled road over which the
plaintiff has a right of way, ploughs up that land so that it is no longer
usable, no doubt a mandatory injunction will go to restore it; damages are not
a sufficient remedy, for the plaintiff has no right to go upon the defendant’s
land to remake his right of way.
Mr Uff
submitted that had the injunction granted by the judge been sufficiently
specific it would appear that Lord Upjohn recognised that the court would have
had jurisdiction to grant a quia timet injunction. Mr Uff submitted
that, by analogy, such an injunction would be equivalent to an injunction
calling upon Willmott properly to secure the bank’s land from risk of further
rotational collapse. Therefore, it was argued, that if this were so then there
should be jurisdiction to award damages in lieu of such an injunction: see Lord
Campbell’s Act now re-enacted in section 50 of the Supreme Court Act 1981. Mr
Dennys made two submissions against this proposition. He pointed out that for a
quia timet injunction to be granted there could never be an existing
right of action, but merely one threatened in the future. Therefore, damages
could never be a satisfactory alternative to a quia timet injunction.
Furthermore, in the circumstances of the present preliminary issues, there was
no need for a mandatory injunction to secure the future stability of the bank’s
land. In my judgment, these submissions are fatal to the bank’s case on this
aspect of the case.
Finally, I
would revert to the question of balance of convenience. Clearly there was force
in Mr Uff’s submission that the present position in which his clients found
themselves was one in which there was a manifest injustice apparently incapable
of remedy. This may well be so, but the bank took it upon themselves
voluntarily to execute the works without giving Willmott the opportunity of
further supporting the land by suing for an injunction. Again, although it may
at first sight appear to be an unattractive proposition to insist on the
occurrence of actual damage in association with a withdrawal of support before
recognising a right of action, with the result that an occupier of land must
wait for the catastrophe to occur before he has a right of action, there is the
other side of this coin, namely that it could well be an intolerable burden on
an occupier of land to be sensitive and acute to react to any reasonable and
legal action by his neighbour on his own land, in order to protect himself from
some future occurrence of damage arising from the excavation which otherwise
would be lawfully carried out by his neighbour.
With these
considerations in mind I have again reviewed the authorities to see if there is
any support for the proposition that an established potential risk of future
physical damage is a sufficient substitute for actual physical damage as the
requirement to complete the cause of action in tort. Mr Uff gallantly tried to
salvage this concept, which was expressly accepted in the majority judgments in
Lamb v Walker, by attempting to demonstrate that the minority
judgment of Lord Cockburn CJ had not been reinstated in the speeches in Darley
Main Colliery Co v Mitchell. If it could be said
Mitchell case was exceptional in its recognition of repeated causes of
action. Moreover, Lord Cockburn CJ talked about: ‘provided in so doing’ — ie
excavating — ‘he does not . . . diminish or disturb his neighbour’s enjoyment
of it [his land]’. However, in the same judgment he expressly excluded the
possibility of a cause of action arising without actual damage notwithstanding
the existing ‘apprehensions of possible consequential damage or even the
certainty that such damage must result’.
The judgment
of Lord Cockburn CJ was specifically approved by Lord Fitzgerald in Darley
Main Colliery. Finally, existing potential future risk of physical collapse
as sounding in damages cannot logically be distinguished from damages for the
depreciation in the value of the land caused by that potential risk. I have no
doubt about this, notwithstanding the attractive submissions of Mr Uff to the
contrary based as they were on an interference with the present enjoyment of
the land, stemming, as it must be, from mental anxiety caused by the potential
risk of collapse. This was in effect rejected by Lord Cockburn CJ and there is
nothing in the subsequent authorities to indicate that we should adopt a
different approach. I would therefore dismiss the appeal.
STOCKER LJ agreed with Purchas LJ and Sir Christopher Slade and did not add
anything.
Agreeing, SIR
CHRISTOPHER SLADE said: The preliminary issue which fell to be decided by
the Official Referee, after setting out the assumptions of fact on which he was
invited to proceed, required determination of the following questions:
Is —
(a) an actionable interference with a right of
support enjoyed by [the bank] disclosed against [Bardgrove] or [Willmott]
and/or
(b) an actionable cause of action in negligence
disclosed against [Bardgrove], [Willmott], [Marshall Botting Associates] or
[Structural Design Partnership] in relation to the consequences of the risk of
rotational slip for which [the bank] claim the cost of works carried out by
them in August 1987?
I gratefully
adopt the summary of the facts, which must be assumed to be true for present
purposes, given by Purchas LJ in his judgment. In relation to the form of the
preliminary issue, I would draw attention to three points. First, the Official
Referee decided that no actionable cause of action in negligence was disclosed
against any of the defendants and there is no appeal from that part of his
decision. Second, though the bank’s land has already suffered actual physical
damage as a result of the defendants’ operations and such damage, if proved or
admitted, will give rise to a good claim for compensation at the trial, the
preliminary issue does not relate to this particular claim. It is simply
concerned with the bank’s claim for compensation in respect of the cost of the
remedial works carried out by them in August 1987 (the sheet piling).
The third
point follows closely on the second. Mr Uff QC, for the bank, as one of his
alternative grounds for submitting that this claim for compensation was a good
one, contended that the sheet piling was carried out for the purpose of
remedying the actual physical damage to the bank’s land which had already
occurred. However, the preliminary issue itself specified the purpose for which
the bank had done the works of August 1987 not as that of reinstating the
bank’s land but as being ‘to prevent future failure of the Bank’s land by
rotational slip at some future date’. At an earlier stage in the proceedings,
the bank, in response to a request for further and better particulars of its
pleading to ‘identify fully and precisely why it was necessary to install permanent
sheet piling’, had given the answer: ‘to prevent future failure of [the bank’s]
land by rotational slip at some future date and hence to restore it to its
former state of stability’. In the light of the form of the preliminary issue
and of the pleadings, the Official Referee was, in my judgment, clearly right
in declining to deal with the submission that the costs of the sheet piling
were recoverable as part of the costs incurred in remedying the damage that had
already occurred, while leaving the submission open for argument at the trial.
The questions
posed by the preliminary issue were directed to a claim by the bank to be
compensated for the cost of work done by it in August 1987 to avert the risk of
further physical damage being caused to the bank’s land by subsidence arising
as a result of the defendants’ excavations. Since that risk had not been wholly
eliminated by Willmott’s erection of the so-called permanent retaining wall in
1985, the erection of that wall, in my judgment, is irrelevant to the issue of
law which this court now has to decide. Stated in general terms, that issue
may, in my opinion, be summarised with sufficient accuracy as follows: A
excavates part of his land and thereby causes some subsidence of and consequent
damage to the adjacent land of his neighbour B. As a result of the excavations,
B’s land is in a condition in which it will probably suffer further subsidence
at a future date (assumed in the present case to be within 10 to 20 years). As
is common ground, B has a present cause of action against A for damages for
interference with his natural right of support in respect of the damage which
has already occurred. If, however, solely on his own initiative, B carries out
remedial works to eliminate the risk of further future subsidence, has he also
a present cause of action against A to recover the cost of such works?
As a point of
inescapable logic, the answer to this question must, in my opinion, be ‘No’,
unless, before carrying out the remedial works, B had a present cause of action
against A in respect of the anticipated damage resulting from the excavations,
which had not yet occurred but probably would occur in the future. And even on
that hypothesis, further speculative questions might arise as to whether it
would have been possible to carry out remedial works effective for their
purpose but less expensive than those in fact carried out or whether the cost
of those works exceeded any probable future damage which could reasonably have
been anticipated.
Purchas LJ, in
his judgment, has fully reviewed the most relevant authorities. In my judgment,
these authorities preclude this court from holding that, before carrying out
the sheet piling, the bank had a present cause of action against either
Bardgrove or Willmott in respect of the anticipated damage from the excavations
which had not yet occurred but probably would occur in the future. I entirely
agree with Purchas LJ’s analysis of those authorities. What is said below is
intended as little more than an addendum.
Parke B, in
delivering the judgment of the court in Nicklin v Williams (1854)
10 Ex 259 relating to the natural right of support land, held at pp 267-268:
When so much
of the land coal or substratum was taken away as to deprive the plaintiffs’
land and house, &c, of the support to which the plaintiffs were entitled, a
cause of action accrued, though no actual damage occurred by the sinking of the
land or falling of the house, or any part of it, or even by part of the
structure being cracked or displaced; although it would not be easy to prove
that an essential part of the support was withdrawn, unless some actual effect
upon the land or structure was produced. For this wrong the plaintiffs would
have a right to recover a full compensation, including the probable damage to
the fabric; . . . .
If this view
of the law had prevailed, the bank’s case would have been a far easier one. It
has, however, been rejected in a long line of subsequent cases. In contrast, it
is now settled law that the owner of land may excavate and remove that land so
long as he does so in a manner which does not interfere with the adjacent
owner’s right to enjoy his land in its natural and undamaged state; the
adjacent owner’s cause of action does not arise unless and until damage
actually results from the excavation: see, for example, Darley Main Colliery
Co v Mitchell (1886) 11 App Cas 127 at p 133 per Lord
Halsbury and at p 148 per Lord Fitzgerald. It is thus open to the
injured adjacent owner to bring successive actions as and when new damage occurs,
though on particular facts nice questions may arise as to whether the damage
asserted is in truth new damage or merely ‘manifestations of the original
damage done and consequent upon the injury originally sustained’: see at p 133 per
Lord Halsbury.
In laying down
these principles, the courts have explicitly disclaimed any intention to depart
from the fundamental rule that damages resulting from one and the same cause of
action must be assessed and recovered once and for all at the same time: see, for
example, Darley at pp 132-133 per Lord Halsbury. That principle
has no application to prospective apprehended damage in cases such as this, for
the simple reason that the potential risk of future physical damage (even if a
well-established risk) gives rise to no cause of action. This point is well
illustrated by the decision of the House of Lords in West Leigh Colliery Co v
Tunnicliffe & Hampson Ltd [1908] AC 27. I add to Purchas LJ’s
citations from that case a short passage from Lord Atkinson’s speech at p 33:
In my view,
to give damages for depreciation in the market value due to the apprehension of
future injury by subsidence is to give damages for a wrong which has never been
committed, since it is the damage caused by subsidence, and not the removal of
minerals, which gives the right of action.
In my
judgment, the decision in the West Leigh Colliery case beyond any doubt
overruled the decision of the majority in Lamb v Walker (1878) 3
QBD 389, in so far as the majority held that the
already been overruled by Darley, as I think it had.
Mr Uff has
presented the claim of the bank, referred to in the preliminary issue, in a
number of attractive alternative guises. Nevertheless, however the claim is
regarded, it is in essence simply a claim for damages based on the potential
risk (albeit an established potential risk) of future damage by subsidence. It
is thus a claim for damages for a wrong which has (as yet) never been
committed. If loss caused by apprehension of future loss does not furnish a
cause of action by itself, because there is no legal wrong, the missing element
cannot, in my judgment, be supplied by presenting the claim in respect of
future loss tacked on to a claim in respect of a wrong admittedly actionable:
see the West Leigh Colliery case at pp 29-30 per Lord Macnaghten.
Mr Uff pointed
out that the consequence of the Official Referee’s finding is that the bank
could have waited for the occurrence of a probable future failure of their land
and then recovered possibly much greater damage — though I have to interpolate
possibly less damage — including damage to buildings and to the site and the
cost of building an effective retaining wall. Since a future failure has now
been prevented by the bank’s remedial works, such possibility of future
recovery for actual damage sustained has disappeared. In Mr Uff’s submission,
it is offensive and against common sense that the bank is not now to be
entitled to compensation for the cost of preventative works. I have three
observations to make in response to this point.
First, as
Purchas LJ observed, the bank (at least so far as we know) took it upon
themselves voluntarily to execute the works without giving Willmott the
opportunity of further supporting the land. Second, it would appear from the
decision of the House of Lords in Redland Bricks Ltd v Morris
[1970] AC 652 that, notwithstanding the absence of a present cause of action in
respect of the prospective damage, (a) it would have been open to the bank to
apply to the court by way of a quia timet injunction for a mandatory
injunction compelling Willmott to carry out the sheet-piling works; (b) the
court would have had the jurisdiction to grant such an injunction, provided
only that the likelihood of future damage was sufficiently proved and the
injunction was in terms clear enough to give Willmott adequate indication of
the work that had to be done. No such injunction was sought by the bank. I do
not say that it would necessarily have been granted. Nevertheless, it should
not be assumed that the state of our law was such as to leave the bank in the
summer of 1987 with no options except those of either waiting for the anticipated
further damage to occur in 10 to 20 years’ time or doing the remedial work
themselves without hope of obtaining recompense from Willmott or Bardgrove.
Third, if the
bank’s contentions were correct and the claim now under discussion were allowed
to proceed to trial, the trial judge, before allowing in full the bank’s claim
for the cost of the sheet-piling works, would surely have to compare this cost
with the amount of the future damage which the bank would have been likely to
suffer if these works had not been carried out. The assessment of this possible
future damage would present formidable difficulties; the court and the parties
would be exposed to the inconvenience of a wholly speculative inquiry. Policy
considerations of this kind, as Cockburn LCJ pointed out in Lamb v Walker
(at p 405), appear to have carried considerable weight in determining the
decision of the Exchequer Chamber in Backhouse v Bonomi (1861)
EB&E 646 by which the decision in Nicklin v Williams was
overruled, and from which the relevant present law developed, requiring that
actual damage is an essential feature of the cause of action.
For these
reasons, and the further reasons given by Purchas LJ, with which I agree, I,
too, would dismiss this appeal.
Appeal
dismissed. Costs of the parties represented. Application for leave to appeal to
the House of Lords refused.
