Natural right of support for land — Action by owners against adjoining proprietors and others claiming damages for alleged wrongful interference with the plaintiffs’ natural right of support and for negligence — Trial of preliminary issue of points of law arising in the action — Whether loss of stability of the plaintiffs’ land, apart from any physical damage to the land or structures on it, was actionable or whether it came within the head of economic loss suffered as a result of the need to avert the possible future failure of the land — Whether there was a duty of care at common law to avoid or prevent damage which was in fact purely economic loss — Held, on the preliminary issue, that no cause of action had been disclosed against the defendants
were a bank occupying premises in London NW2 which adjoined land being
developed by the first defendants — The second defendants were building
contractors and the third and fourth defendants were professional firms
involved in advice and design in regard to the works carried out on the
adjoining land — Excavations along the boundary between the plaintiffs’
premises and the adjoining land had led to subsidence and made the plaintiffs’
land less stable than before — The plaintiffs’ claims comprised both physical
damage to and the loss of stability of the land, but the preliminary issue was
confined to the question of liability under the latter head — The plaintiffs
claimed the cost of sheet piling works the purpose of which was to prevent
further failure of their land — The risk of that failure, expressed in
technical terms, was a probability of rotational failure of a retaining wall
occurring within 10 to 20 years of its construction
preliminary issue raised two questions — The first was whether a cause of
action on the ground of wrongful interference with the plaintiffs’ natural
right of support had been disclosed, bearing in mind that the question
concerned loss of stability only, not physical damage to the land — It was, of
course, understood that the natural right extended only to land in its natural
state, not to buildings — This possible cause of action affected only the first
and second defendants — The second question, which affected all the defendants,
was whether there was a cause of action in negligence based on a common law
duty of care which had been breached by the defendants
considered a number of authorities on the nature and scope of the natural right
of support and concluded that the mere loss of stability in land was not sufficient
to constitute the actual damage which was required for an actionable claim for
wrongful interference with this common law right — The costs of the sheet
piling works mentioned above were incurred to restore the stability of the
plaintiffs’ land and thus prevent the probable future failure — In reality the
loss was pure economic loss — The costs were not incurred to remedy any present
interruption of the plaintiffs’ enjoyment of the land
question of negligence, the plaintiffs submitted that each of the defendants
owed a common law duty of care to the plaintiffs on the general principle set
out in Donoghue v Stevenson — The judge, however, drew attention to recent
developments in the law of negligence, clearly shown by speeches in the House
of Lords in such cases as Caparo v Dickman and Murphy v Brentwood District Council
— It was now regarded as preferable that the law should develop novel
categories of negligence incrementally and by analogy with established
categories rather than by a massive extension of a prima facie duty of care
restrained only by indefinable negative considerations — It was established law
that, in the absence of an easement of support, the first defendants were
entitled to carry out excavations on their land even if the excavations
involved the withdrawal of the natural support — In these circumstances the law
does not impose a duty of care towards the adjoining owner in regard to the way
in which the excavation works are carried out — As each of the other defendants
was merely an instrument through which the first defendant exercised its lawful
rights, it would not be appropriate to impose a duty of care on them
conclusion was that, in answer to the questions posed in the preliminary issue,
the alleged causes of action were not found to be established against any of
the defendants
The following cases are referred to in
this report.
Allen v Gulf Oil Refining Ltd [1981] AC
1001; [1981] 2 WLR 188 [1981] 1 All ER 353, HL
Anns v Merton London Borough Council
[1978] AC 728; [1977] 2 WLR 1024; [1977] 2 All ER 492; (1977) 75 LGR 555;
[1977] EGD 604; 243 EG 523 & 591, [1977] 2 EGLR 94; [1977] JPL 514, HL
Backhouse v Bonomi (1861) 9 HL Cas 503
Bognuda v Upton & Shearer [1972] NZLR
741
Bower v Peate (1876) 1 QBD 321;
[1874-80] All ER Rep 905; 45 LJQB 446; 35 LT 321; 40 JP 789
Caparo Industries plc v Dickman [1990] 2 AC
605; [1990] 2 WLR 358; [1990] 1 All ER 568, HL
Clay v A J Crump & Sons Ltd [1964]
1 QB 533; [1963] 3 WLR 866, CA
Crumbie v Wallsend Local Board [1891] 1
QB 503; 60 LJQB 392; 64 LT 490; 55 JP 421; 7 TLR 229, CA
D & F Estates Ltd v Church Commissioners for
England [1989] AC 177; [1988] 3 WLR 368; [1988] 2 All ER 992; [1988] 2 EGLR
263, HL
Dalton v Angus (1881) 6 App Cas 740;
[1881] All ER Repl; 50 LJQB 689; 44 LT 844; 46 JP 132; 30 WR 191, HL
Darley Main Colliery Co v Mitchell (1886) 11
Ap Cas 127; 2 TLR 301, HL
Department of the Environment v Thomas Bates & Son
Ltd [1990] 3 WLR 457; [1990] 2 All ER 943; [1990] 2 EGLR 154; [1990] 46 EG
115, HL
Donoghue v Stevenson [1932] AC 562, HL
Hedley Byrne & Co Ltd v Heller & Partners
Ltd [1964] AC 465; [1963] 3 WLR 101; [1963] 2 All ER 575; [1963] 1 Lloyd’s
Rep 485, HL
Hollebone v Midhurst & Fernhurst Builders
Ltd [1968] 1 Lloyd’s Rep 38
Home Office v Dorset Yacht Co Ltd [1970] AC
1004; [1970] 2 WLR 1140; [1970] 2 All ER 294; [1970] 1 Lloyd’s Rep 453, HL
Lamb v Walker (1878) 3 QBD 389; 47
LJQB 451; 38 LT 643; 42 JP 532; 26 WR 775, DC
Murphy v Brentwood District Council
[1990] 3 WLR 414; [1990] 2 All ER 908, HL
Ray v Fairway Motors (Barnstaple) Ltd
(1968) 20 P&CR 261, CA
Spartan Steel & Alloys Ltd v Martin & Co
(Contractors) Ltd [1973] QB 27; [1972] 3 WLR 502; [1972] 3 All ER 557, CA
Stroyan v Knowles (1861) 6 H&N 454;
30 LJ Ex 102; 3 LT 746; 9 WR 615
Sutherland Shire Council v Heyman (1985) 60 ALR
1; [1985] 59 ALJR 564; 2 Const LJ 150
Tilling v Whiteman [1980] AC 1; [1979] 2
WLR 401; [1979] 1 All ER 737; (1979) 38 P&CR 341; [1979] EGD 370; 250 EG
51, [1979] 1 EGLR 108; [1979] JPL 834, HL
Ward v Cannock Chase District Council [1986]
Ch 546; [1986] 2 WLR 660; [1985] 3 All ER 537
West Leigh Colliery Co v Tunnicliffe [1908]
AC 27
This was a preliminary issue ordered to
be tried in an action for interference with a right of natural support and for
negligence brought by the plaintiffs, Midland Bank plc, against the defendants,
Bardgrove Property Services Ltd, John Willmott (WB) Ltd, Marshall Botting
Associates and Structural Design Partnership, in respect of Oxgate House,
Oxgate Lane, London NW2.
Ian Croxford (instructed by Nabarro Nathanson)
appeared on behalf of the plaintiffs; Vivian Ramsey (instructed by Rowe &
Maw) appeared for Bardgrove Property Services Ltd; Nicholas Dennys (instructed
by Shoesmiths & Harrison, of Reading) represented John Willmott (WB) Ltd;
Roger Stewart (instructed by Reynolds Porter Chamberlain) represented Marshall
Botting Associates; and Miss Claire Miskin (instructed by Pictons, of St
Albans) represented Structural Design Partnership.
Giving judgment, JUDGE THAYNE FORBES
QC said: The plaintiff, Midland Bank plc, is the lessee and occupier of the
premises known as Oxgate House, Oxgate Lane, London NW2 (‘the premises’). The
land which adjoins the premises on its north-eastern boundary (‘the adjoining
land’) has been developed as the Oxgate Centre (‘the development’). The
development was commenced in 1985.
The first defendant, Bardgrove Property
Services Ltd (‘Bardgrove’), is a company whose business includes property
development. At all material times, Bardgrove was the occupier of the adjoining
land and carried out the development of the Oxgate Centre.
The second defendant, John Willmott (WB)
Ltd (‘Willmott’), is a building contractor and was employed by Bardgrove as
main contractor for carrying out the development.
The third defendant, Marshall Botting
Associates (‘MBA’), is a firm of consulting structural engineers, retained by
Bardgrove and/or Willmott to advise upon and design certain temporary shoring
works (‘the temporary works’). The temporary works were in connection with the
excavations carried out during the development on the adjoining land along the
boundary between the premises and the adjoining land (‘the excavation works’).
The fourth defendant, Structural Design
Partnership (‘SDP’), is a firm of consulting engineers, retained by Bardgrove
to advise upon and/or design the works (both temporary and permanent) in
connection with the excavation works.
Prior to the development and in
particular the excavator works, the adjoining land was substantially at the
same level as the premises along the boundary between the two properties. It is
alleged by the plaintiff that, prior to the excavation works, the plaintiff’s
land was stable or reasonably stable.
As a matter of law, the land comprised in
the premises is entitled to a natural right of support from the adjoining land.
This natural right of support is pleaded and relied upon by the plaintiff in
para 3 of the re-reamended statement of claim. I will examine the nature of the
natural right of support later in this judgment.
At this stage it is important to note
that the plaintiff does not allege any prescriptive right or easement of
support from the adjoining land for the buildings on the premises.
Summary of facts
According to the wording of the
preliminary issue (as to which, see below) and in particular para (4), the
following relevant facts were, for the purposes of the hearing before me,
assumed to have been proved by the plaintiff.
(1)
Between March and July 1985 Bardgrove, by its contractor Willmott,
excavated down by up to about 4 m along the boundary between the premises and
the adjoining land and thereby exposed a vertical earth face.
(2)
Temporary shoring of the earth face was provided by means of a series of
steel-braced frames set in concrete. These frames supported horizontal wooden
railway sleepers. The space between the sleepers and the excavated earth face
was then filled with unconsolidated clay.
(3)
The plaintiff’s land suffered subsidence along the line of the boundary
between the premises and the adjoining land. The plaintiff’s land was made or
rendered less stable than before the excavation works.
(4)
As the result of the subsidence, a roadway on the plaintiff’s land,
which was constructed beside the boundary, broke up and a gas pipe under the
roadway was rendered unsafe. The subsidence also caused the movement and
breakup of a concrete plinth and wire fence which ran along the boundary.
(5)
Upon the damage to the plaintiff’s land becoming evident, the temporary
shoring to the excavated earth face was modified by the removal of the clay
backfill and its replacement by mass concrete. The roadway, plinth and fence
were repaired and the gas supply restored.
(6)
Later in 1985 Bardgrove, by its contractor Willmott, replaced the
temporary shoring with a permanent retaining wall. The wall has a probability
of rotational failure occurring within 10 to 20 years of its construction.
(7)
Between the date of the construction of the permanent retaining wall in
1985 and August 1987 there was no further movement of the plaintiff’s land and
no movement of the retaining wall.
(8)
In August 1987 the plaintiff carried out sheet piling works to prevent
further failure of the plaintiff’s land and to restore the land to its former
state of stability. The risk of that failure was created by the probability of
the future rotational slip referred to in para (6) above.
(9)
The remedial works to the plaintiff’s land, including consultants’ fees,
cost just over £318,000. Of that figure, just over £230,000 was attributable to
the sheet piling works.
Summary of the plaintiff’s claims
The plaintiff issued the writ endorsed
with the statement of claim on February 20 1988. On September 12 1990, at the
outset of the hearing before me, I gave leave to the plaintiff to re-reamend
the statement of claim. In the re-reamended statement of claim the plaintiff
makes the following claims:
(1)
Against Bardgrove and Willmott
(i)
Damages for wrongful interference with the plaintiff’s right to natural
support for its land from the adjoining land in carrying out the works set out
in para 4B of the statement of claim.
(ii)
Damages for negligence. The duty of care alleged is in respect of ‘the
preparing for and/or carrying out the works mentioned in para 4B of the
statement of claim.’
(iii)
The works alleged in para 4B are described as the development works and
are pleaded as including the excavation works and the temporary shoring and its
modification. In the course of his submissions on behalf of the plaintiff, Mr
Croxford stated that the works included also the permanent retaining wall.
(iv)
The breaches of the duty of care alleged are pleaded in subparas (1) to
(7) inclusive of the particulars of negligence.
(2)
Against MBA and SDP
(i)
Damages for negligence. The duty of care alleged is the same as that
alleged against Bardgrove and Willmott.
(ii)
The breaches of duty alleged against MBA are in subparas (8) to (17) of
the particulars of negligence and those against SDP are in subparas (18) to
(24).
Damage suffered by the plaintiff
In para 5 of the re-reamended statement
of claim the plaintiff has pleaded three different matters which it is alleged
constituted damage caused by the development works to the plaintiff’s land and
the structures on or in it. It is in respect of that alleged damage to the land
and the structures on or in it that the plaintiff seeks damages against the
defendants for wrongful interference with the natural right to support (in the
case of Bardgrove and Willmott) and negligence (in the case of all four
defendants). The alleged threefold damage is as follows:
(1)
subsidence of the land and the loss of stability of the land;
(2)
subsidence and breakup of the roadway and the endangering of the
underlying gas pipe;
(3)
movement and breakup of the concrete plinth and wire fence.
Each item of alleged damage is related to
the actual subsidence of the plaintiff’s land, which took place in 1985. As
indicated above in para (7) of the facts, it is accepted that there was no
further subsidence or movement of the plaintiff’s land between the construction
of the permanent retaining wall and the sheet piling.
The damage to the roadway, to the
concrete plinth and to the wire fence are all clear examples of physical damage
resulting from the
physical disturbance of the surface of the plaintiff’s land and thus caused
physical damage to that land and to the structures on and in it.
However, in so far as it is alleged to
form a distinct and separate part of the damage caused, the alleged loss of stability
of the land does not refer to any actual physical disturbance of the
plaintiff’s land. The loss of stability was caused by the alleged failure to
provide adequate support for the plaintiff’s land after the removal of the
natural support provided by the adjoining land.
In the course of his submissions, Mr
Croxford conceded that this alleged condition of instability of the plaintiff’s
land could not be said to have caused or become manifest in any physical
disturbance of the plaintiff’s land, or of the structures on or in it, beyond
that which had been separately identified as the physical consequences of the
original subsidence, ie the damaged roadway, plinth and fence.
In my judgment, therefore, the loss of
stability which is alleged as a distinct and separate part of the damage
suffered by the plaintiff does not identify or refer to any physical damage to
the plaintiff’s land or other property, but rather identifies or is a means of
referring to the economic loss suffered by the plaintiff in having to carry out
the sheet piling works in order to avert the risk of future probable failure of
the land.
The damages which are claimed for the
damage suffered are the total cost of the remedial works, alternatively the
diminution in the value of the premises, being not less than the cost of the
remedial works.
In the further alternative, the plaintiff
claims the total cost of the remedial works as having been incurred by the
plaintiff in reasonable mitigation of the loss and damage suffered.
Preliminary issue
On March 21 1990, Judge Fox-Andrews QC
ordered that a preliminary issue be tried in this action relating to the
plaintiff’s claims against the defendants in so far as those claims sought to
recover damages for the costs involved in carrying out the sheet piling works
in August 1987. The parties have submitted an agreed form of wording for the
preliminary issue. It is that preliminary issue which was tried by me and which
is the subject of this judgment.
The wording of the preliminary issue is
as follows:
On the assumption that:
(1) the permanent retaining wall constructed in
1985 had a probability of rotational failure occurring within 10 to 20 years of
its installation;
(2) In August 1987 the plaintiff carried out
works to prevent future failure of the plaintiff’s land by rotational slip at
some future date;
(3) In August 1987 the wall constructed in 1985
had not moved;
(4) The other allegations contained in the
re-reamended statement of claim and the further and better particulars thereof
are proved at the trial.
Is (a) an actionable interference with a
right of support enjoyed by the plaintiff disclosed against the first or second
defendants, and/or
(b) an
actionable cause of action in negligence disclosed against the first, second,
third or fourth defendants in relation to the consequences of the risk of
rotational slip for which the plaintiffs claim the cost of works carried out by
them in August.
The procedure of having a point of law
decided as a preliminary issue is a procedure which is frequently used in
courts which deal with official referees’ business. An appropriate use of that
procedure can achieve great savings in time and costs, particularly where the
effect of the ruling of law in the preliminary issue is to render unnecessary
the investigation and determination of complex factual issues. However, the
legal issue which is to be determined as a preliminary issue should be one that
can be stated shortly and one that is capable of easy decision: Tilling
v Whiteman [1980] AC 1, per Lord Wilberforce at pp 17 and 18.
Furthermore, the preliminary issue must
be carefully and precisely framed so as to avoid difficulties of interpretation
as to what is the real question which is being ordered to be tried as a
preliminary issue: see Allen v Gulf Oil Refining Ltd [1981] AC
1001 at pp 1010 and 1011. It is important to observe these guiding principles
when adopting this procedure. Failure to do so may well create difficulties in
both the trial court and the appellate courts with a resulting increase in both
time and costs: see Tilling v Whiteman per Lord Wilberforce at p
17.
In order to determine the preliminary
issue as expressed, I have to decide whether the plaintiff has established
either or both of its causes of action against each relevant defendant on the
basis of the assumed facts ‘in relation to the consequences of the risk of
rotational slip for which the plaintiffs claim the cost of works carried out by
them in August 1987’.
I consider that the latter words, quoted
by me from the wording of the preliminary issue, must identify a specific part
of the damage allegedly suffered by the plaintiff for the purposes of the
preliminary issue. The wording also limits the consideration of each cause of
action to that alleged specific damage when considering, for the purposes of
the preliminary issue, whether that cause of action has been established
against each defendant. It is therefore important to understand precisely what
damage allegedly suffered by the plaintiff is thus described, because it is
clearly less than the damage alleged in para 5 of the re-reamended statement of
claim: see para 5 above.
According to the further and better
particulars of the re-reamended statement of claim, the only reason why the
plaintiff carried out the sheet piling works in August 1987 was ‘to prevent
future failure of the plaintiff’s land at some future date, and hence to
restore it to its former state of stability’. The risk of that future failure
was created by the probability of the rotational slip of the permanent wall. The
consequence of the risk of that rotational slip was that the plaintiff decided
to and did carry out the sheet piling works. The sheet piling works were thus
carried out to remedy the condition of instability in the plaintiff’s land that
was still considered to exist despite the construction of the permanent
retaining wall.
Therefore, I consider that it is clear
that the only part of the damage alleged by the plaintiff in para 5 of the
re-reamended statement of claim which is made the subject of the preliminary
issue is the loss of stability of the plaintiff’s land. As pointed out earlier
in this judgment, this loss of stability of the plaintiff’s land did not result
in any physical disturbance of or damage to that land or the structures on or
in it after the subsidence of 1985 and the physical consequences of that
subsidence: ie the damaged roadway, plinth and fence (the 1985 physical
damage).
Moreover, as stated above, the
plaintiff’s own pleading makes it clear that the sheet piling works of August
1987, which remedied the perceived instability of the land, were not carried
out to remedy any of the 1985 physical damage, but were concerned only with
averting a future failure of the plaintiff’s land.
Thus the questions posed by the
preliminary issue are directed at the plaintiff’s claim to have suffered
damage, not because of any physical damage to or disturbance of the land or
other property, but because of the risk of a probable physical disturbance in
the future. As I have already stated, the damage which is really identified by
reference to the loss of stability of the land is the economic loss suffered as
a result of the need to avert the threatened future failure of the land.
My answers to the questions posed by the
preliminary issues must not appear to determine any issue between the parties
which requires any determination of fact beyond the strict limits of the
assumed facts. For that reason I am unable to deal with Mr Croxford’s
submission that the costs for the sheet piling can be recovered by the plaintiff
as part of the costs incurred in reinstating the plaintiff’s land. The normal
measure of damages recoverable for damage to land is the diminution in the
value of the land: McGregor on Damages, 15th ed, paras 1392-1396.
However, it is now accepted that in some cases the appropriate measure can be
the costs incurred in reinstating the land to its former condition: McGregor
on Damages, (supra); Hollebone v Midhurst & Fernhurst Builders
[1968] 1 Lloyd’s Rep 38; Ward v Cannock Chase District Council
[1986] 2 WLR 660. In order to resolve the submission it would be necessary to
decide, inter alia, whether the 1987 sheet piling was work of
reinstatement and, if it was, whether it was reasonably required to reinstate
the land. In my judgment, those matters involve a consideration of the facts
beyond the assumed facts. In any event, such a submission is not suitable for
determination on a preliminary issue of law, depending as it does upon the
‘impact of detailed and complex findings of fact upon principles of law which
are themselves flexible’: Allen v Gulf Oil Refining Ltd (supra) per
Lord Wilberforce at p1011.
The claim for wrongful interference with
the plaintiff’s natural right of support.
The owner of land has a right to the
support of his land in its natural state from the adjacent and subjacent land
of the neighbouring owners. This right is not an easement but a natural
incident of his ownership: Clerk & Lindsell on Torts, 16th ed, paras
24-56. Thus, the true nature of the right is that it is ‘a right to the
ordinary enjoyment of . . . land’ and, until the ordinary enjoyment of his land
is interfered with, the owner has nothing of which to complain: Backhouse
v Bonomi (1861) 9 HL Cas 503 per Lord Cranworth at
nature of an easement, but . . . (is) the right . . . to the enjoyment of . . .
property, and . . . the obligation (is) cast upon the owner of the neighbouring
property not to interrupt that enjoyment’.
In Dalton v Angus (1881) 6
App Cas 740 at p 808, Lord Blackburn described the right in the following
terms:
It is, I think, conclusively settled by
the decision in this House in Backhouse v Bonomi that the owner
of land has a right to support from the adjoining soil; not a right to have the
adjoining soil remain in its natural state (which right, if it existed, would
be infringed as soon as any excavation was made in it); but a right to have the
benefit of support, which is infringed as soon as, and not till, damage is
sustained in consequence of the withdrawal of that support.
This right is, I think, more properly
described as a right of property, which the owner of the adjoining land is
bound to respect, than as an easement . . . putting a restriction on the mode
in which the neighbour is to use his land.
The right to support of land is a right
bestowed by law as a natural incident of the ownership of that land. It is a
right which is limited to the support which is necessary to support the land in
its natural state: see Dalton v Angus (supra) per Lord Selborne
at p 791. It is not an easement and is distinguishable from rights of support
which arise by grant or prescription. Since the right to the support of land is
limited to land in its natural state, it does not give rise to any right to
support to buildings which are placed upon the land: per Lord Selborne
at pp 791 to 792. Such a right can be obtained only by grant or prescription.
A convenient statement of the law is to
be found in the speech of Lord Fitzgerald in Darley Main Colliery Co v Mitchell
(1886) 11 App Cas 127 at pp 147 to 148. He stated the law in the following
numbered propositions:
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 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.
It is not the excavation of the subjacent
land which gives rise to the cause of action for wrongful interference with the
right to support. That excavation is a lawful exercise of the right of the
owner of the adjoining land to use his land as he wishes. This is so, even if
the effect of the excavation results in the withdrawal of support from the land
of a neighbouring owner: see also the judgment of Cockburn CJ in Lamb v Walker
(1878) 3 QBD 389 at pp 402 to 403, approved by the House of Lords in Darley
Main Colliery v Mitchell (supra), see eg Lord Fitzgerald at p 151.
It is only when the excavation of the subjacent land causes actual disturbance
of the surface of a neighbouring owner’s land that a cause of action arises: Darley
Main Colliery Co v Mitchell, per Lord Fitzgerald at p 151. It is
that disturbance of the surface of the land which constitutes the actual
disturbance of the owner’s enjoyment of his property. It is that which constitutes
the actual damage which makes the previously lawful excavation of the adjoining
land tortious and therefore actionable. In the words of Cockburn CJ in Lamb
v Walker at p 402:
The act of the excavating owner is not
tortious in se; it is tortious only when it produces, and, as it seems
to me to follow logically, to the extent to which it produces, actual damage.
Thus each time the surface of the land is
disturbed by subsidence, a fresh cause of action arises. This is so, even if
the process of subsidence in question can be said to be continuous: Crumbie
v Wallsend Local Board [1891] 1 QB 503.
Furthermore, the damages recoverable for
the wrongful act of the excavating owner will include damages for any injury
done by the subsidence to any structure on the land, even though that structure
does not enjoy any right of support, provided that the presence of the
structure on the land did not cause or contribute to the subsidence: Stroyan
v Knowles (1861) 6 H&N 454 per Pollock CB at p 465.
In my judgment, it is clearly established
that the mere loss of stability in land is not sufficient to constitute the
actual damage which is required to give rise to an actionable claim for
wrongful interference with the natural right to support to that land: see
Cockburn CJ in Lamb v Walker (supra) at p 400, also Lord
Macnaghten in West Leigh Colliery Co v Tunnicliffe [1908] AC 27
at p 29. Mr Croxford submitted that the loss of stability of the land in this
case did form part of the actual damage because the assumed facts established,
on a balance of probabilities, that a further failure of the plaintiff’s land
would occur as the result of that instability. He submitted that the assumed
facts established that this would happen without any further act by anybody.
Thus, he submitted, the future failure was part of the actual damage caused by
the original subsidence. He relied upon a passage in the speech of Lord
Bramwell in Darley Main Colliery v Mitchell at pp 145 to 146,
where he stated:
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.
Properly understood, I do not think that
passage does support Mr Croxford’s submission. I consider that the concluding
words of Lord Bramwell’s speech at p 147 show that what he had in mind were
circumstances where a future fall along the 50 ft would occur as a later part
of a continuous or uninterrupted process of disturbance of the surface of the
plaintiff’s land, which disturbance had given rise to the cause of action. In
the present case, the probable future failure of the land was not part of the
actual disturbance of the surface of the plaintiff’s land in its natural state
which had been caused by the 1985 subsidence. The actual disturbance of the
surface of the land had ceased after the modification to the temporary shoring
in 1985.
Further, the plaintiff admits that there
was no movement of the land after the construction of the permanent retaining
wall in 1985 and before the sheet piling works in 1987. Thus the probable
future failure of the plaintiff’s land was clearly prospective damage which had
not yet arisen. As I have already pointed out, the real way in which the
plaintiff suffered damage as a result was the economic loss caused by the need
to carry out works to avert the threatened failure. As such, it cannot form
part of the claim for damages for the wrongful interference with the plaintiff’s
natural right to support because it is not part of the actual damage suffered
by the plaintiff: Cockburn CJ in Lamb v Walker at pp 402 to 403.
Mr Croxford also submitted that the costs
of the sheet piling works were recoverable as reasonable mitigation of the
losses that might otherwise have been incurred. I confess that I find this
argument difficult to understand. It seems to be based on the proposition that
the costs involved in doing the sheet piling works in 1987 were less than those
that would be incurred if the plaintiff waited until the probable future
failure occurred. In my judgment, that argument has no application where, as
here, the loss of stability in the land which gives rise to the probable future
failure does not form part of the damage suffered by the plaintiff for which
damages are recoverable in these proceedings.
Mr Croxford submitted further that the
costs of the sheet piling works were recoverable as ‘parasitic damages’. Where,
as the result of the commission of a tort, the plaintiff has suffered damage to
an interest other than that which the tort is designed to protect primarily,
the question arises as to whether the plaintiff can recover for that damage. If
the plaintiff can recover, then the damages are sometimes called ‘parasitic’.
The principle is one of general application in tort: McGregor on Damages,
15th ed, paras 213 to 220. However, as the editor of McGregor on Damages
points out, the recoverability of such damages is really a matter of policy and
the term ‘parasitic’ is thus a misnomer.
In my judgment, the recoverability of
such damages in one tort is not a reliable guide to the policy to be applied in
another tort. I do not consider that Spartan Steel & Alloys Ltd v Martin
& Co (Contractors) Ltd [1973] QB 27, which is concerned with damages
recoverable for negligence, provides any assistance to me in deciding whether
the costs of the sheet piling works are recoverable as ‘parasitic’ damages in
the claim for damages for the wrongful interference with the natural right to
support.
The cause of action for the tort of
wrongful interference to the right of natural support to land arises only when
there is a present and actual interruption of the plaintiff’s enjoyment of the
land and only to the extent of that interruption. Cockburn CJ in Lamb v Walker
(supra) at p 404.
The costs of
the sheet piling works were incurred to restore the stability of the
plaintiff’s land and thus prevent the probable future failure. In reality the
loss was pure economic loss. The costs were not incurred to remedy any present
or actual interruption of the plaintiff’s enjoyment of the land, they were
incurred to prevent a
as damages ‘parasitic’ to the damages recoverable for the actual damage caused
would be to run counter to the clearly stated law which governs this particular
tort. In particular it would undermine the principle that a cause of action in
this tort does not arise in respect of a future or prospective interruption of
the plaintiff’s right to enjoy his land in its natural state. Thus I am
satisfied that these costs cannot be recovered as ‘parasitic’.
Claims in negligence
Mr Croxford submitted that each of the
defendants owed a common law duty of care to the plaintiff on the general
principle set out in Donoghue v Stevenson [1932] AC 562. He cited
the well-known passage from the speech of Lord Reid in Home Office v Dorset
Yacht Co Ltd [1970] AC 1004 where he stated at pp 1026 to 1027:
In later years there has been a steady
trend towards regarding the law of negligence as depending on principle so
that, when a new point emerges, one should ask not whether it is covered by
authority but whether recognised principles apply to it. Donoghue v Stevenson
. . . may be regarded as a milestone, and the well known passage in Lord
Atkin’s speech should I think be regarded as a statement of principle. It is
not to be treated as if it were a statutory definition. It will require
qualification in new circumstances. But I think the time has come when we can
and should say that it ought to apply unless there is some justification or
valid explanation for its exclusion.
However, recent decisions of the House of
Lords have made it clear that there is no single general principle which can
provide a practical test ‘which can be applied to every situation to determine
whether a duty of care is owed and, if so, what is its scope’: Caparo
Industries plc v Dickman [1990] 1 All ER 568 per Lord Bridge
at p 573.
The three necessary ingredients which
must be present in any given situation before a duty of care can arise are: (i)
foreseeability, (ii) a relationship of ‘proximity’ or ‘neighbourhood’ and (iii)
that the situation is one where it is fair, just and reasonable that the law
should impose a duty of care. The concepts of proximity and reasonableness are
not susceptible of any precise definition. In deciding whether a duty of care
exists, the court will now attach greater significance to the traditional
categorisation of distinct and recognisable situations as guides to the
existence, the scope and the limits of the varied duties of care which the law
imposes: Caparo Industries plc per Lord Bridge at p 574.
Thus the two-stage test of liability in
negligence which was formulated by Lord Wilberforce in Anns v Merton
London Borough Council [1978] AC 728* is no longer regarded as a suitable
approach: see the observations of Lord Keith in Murphy v Brentwood
District Council [1990] 2 All ER 908 at p 915.
*Editor’s note: Also reported at (1977)
243 EG 523 and 591, [1977] 2 EGLR 94.
The speeches in the House of Lords in Caparo
v Dickman and Murphy v Brentwood show that the approved
approach for establishing whether a duty of care exists in any particular set
of circumstances is that enunciated by Brennan J in Sutherland Shire Council
v Heyman (1985) 60 ALR 1 where he stated:
It is preferable in my view, that the law
should develop novel categories of negligence incrementally and by analogy with
established categories rather than by a massive extension of a prima facie duty
of care restrained only by indefinable ‘considerations which ought to negative,
or to reduce or limit the scope of the duty or the class of person to whom it
is owed’.
It is also clear that the particular
damage which the plaintiff claims to have suffered is an important
consideration in deciding upon the existence and extent of a duty of care to
avoid or prevent that damage. This is because the law does not impose a duty of
care in the abstract, but a duty of care to avoid causing to the particular
plaintiff damage of the particular kind which he has in fact sustained: Caparo
Industries plc v Dickman, per Lord Oliver at p 599, approving the
judgment of Brennan J in Sutherland Shire Council v Heyman and
quoting a passage from p 48 of that judgment.
The importance of the kind of damage
suffered by the plaintiff to a consideration of whether a duty of care is
imposed by the law in a given situation is emphasised by Lord Bridge in Caparo
Industries plc v Dickman in the following passage at p 574:
One of the most important distinctions
always to be observed lies in the law’s essentially different approach to the
different kinds of damage which one party may have suffered in consequence of
the acts or omissions of another. It is one thing to owe a duty of care to
avoid causing injury to the person or property of others. It is quite another
to avoid causing others to suffer purely economic loss.
As I have already pointed out, in this
case the plaintiff alleges damage to its land and other property caused by the
subsidence of the plaintiff’s land which resulted from the development works
that were carried out on Bardgrove’s land and in particular the excavation
works.
However, since there was no easement of
support, Bardgrove was legally entitled to carry out development works on its
land and carry out excavations, even if the excavations involved the withdrawal
of the natural support to the plaintiff’s land: see Dalton v Angus
(supra) and generally section 6 above. In such circumstances the law does
not impose a duty of care in favour of the adjoining owner with regard to the
way in which the excavation works are carried out. I accept Mr Ramsey’s
submission that this is already established by existing authorities: see the
speech of Lord Penzance in Dalton v Angus at p 804 and the
judgment of Willmer LJ in Ray v Fairway Motors (Barnstaple) Ltd
(1968) 20 P&CR 261 at p 269; see also the speech of Lord Reid in Home
Office v Dorset Yacht (supra) at p 1026, where he recognises that
the law to be applied in certain situations has developed so as to preclude a
duty of care being imposed on the principles of Donoghue v Stevenson
in such a situation.
That the law of England does not impose a
duty of care on the owner of land in this situation has been accepted and
explained in the Court of Appeal in New Zealand: see the judgment of North P in
Bognuda v Upton & Shearer Ltd [1972] NZLR 741 at p 756.
Mr Croxford submitted, nevertheless, that
the law of England does recognise a duty on the part of the owner of land in
such a situation which is analogous to or closely resembles a common law duty
of care. In support of that submission he cited the judgment of Cockburn CJ in Bower
v Peate (1876) 1 QBD 321 at pp 326 to 327. I do not agree that the
passage in the judgment which he cited establishes that the law imposes upon
the owner of land what Mr Croxford called a ‘free standing duty’ equivalent or
similar to a duty of care. In my judgment, Cockburn CJ does not suggest that
the law imposes a general duty upon the owner of land to take care not to
injure his neighbour’s land. His words are part of his analysis of the
non-delegable nature of the strict obligation imposed by law on the owner of
land not to cause actual physical damage to a neighbour’s land by the
withdrawal of that land’s natural support.
Since Bardgrove owed no duty of care to
the plaintiff of the type alleged, I do not consider that the same alleged duty
of care can nevertheless be imposed on the other defendants. Each of the other
defendants was merely an instrument through which Bardgrove exercised its
lawful rights. To impose the alleged duty of care on any of the other
defendants seems to me to be wrong in principle as well as giving rise to many
inconsistencies and problems of the type that were advanced in argument by
counsel for the defendants and which weigh heavily against the imposition of
such a duty of care.
Therefore, in my judgment, none of the
defendants owe to the plaintiff the duty of care alleged, since the existence
of such a duty of care is precluded by the law in this category of case.
In any event, as already stated earlier
in this judgment, I am satisfied that the damage identified in the preliminary
issue is in reality the economic loss sustained by the plaintiff in averting
the future failure of the land. Therefore, in deciding whether any of the
defendants owed a duty of care to the plaintiff to avoid causing that damage, I
do not consider that I am assisted by the decision of the Court of Appeal in Clay
v A J Crump & Sons Ltd [1964] 1 QB 533, since that case was
concerned with a duty of care to avoid causing personal injury. I refer to my
earlier observations about the importance of the type of damage suffered by the
plaintiff in relation to a decision whether the law imposes a duty on a
defendant to avoid causing such damage. It is also illuminating to refer to the
words of Brennan J in Sutherland Shire Council v Heyman, which
were quoted with approval by Lord Oliver in Caparo at p 597:
The corollary is that a postulated duty
of care must be stated in reference to the kind of damage that a plaintiff has
suffered and in reference to the plaintiff or a class of which the plaintiff is
a member. ‘His duty of care is a thing written on the wind unless damage is
caused by the breach of that duty; there is no actionable negligence unless
duty, breach and consequential damage coincide . . . for the purposes of
determining liability in a given case, each element can be defined only in
terms of the others.’ It is
impermissible to postulate a duty of care to avoid one kind of damage — say,
personal injury — and, finding the defendant guilty of failing to discharge
that duty, to hold him liable for the damage actually suffered that is of
another and independent kind — say economic loss.
For the reasons given earlier in this
judgment, I am satisfied that the preliminary issue is concerned with damage
suffered by the plaintiff which is in reality purely economic loss,
unaccompanied by physical injury to person or property. A duty of care to avoid
or prevent such damage is imposed by the law only where there is between plaintiff
and defendant a special relationship of the type that existed in Hedley
Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465: see Murphy
v Brentwood DC (supra), Department of the Environment v Thomas Bates
& Son Ltd [1990] 2 All ER 943* and D&F Estates Ltd v Church
Commissioners [1989] AC 177, eg per Lord Oliver at pp 216 to 217† .
*Editor’s note: Also reported at [1990] 2
EGLR 23; [1990] 46 EG 115, [1990] 2 EGLR 154.
† Editor’s note: Also reported at [1988]
2 EGLR 263.
No such special relationship is alleged
by the plaintiff in this case and therefore I am bound to hold that none of the
defendants owed a duty of care to the plaintiffs to avoid or prevent that loss.
Furthermore, even if, contrary to the
earlier part of this judgment, the defendants did owe a duty of care to the
plaintiff to avoid or prevent the actual physical damage to the plaintiff’s
land and other property (ie this 1985 physical damage) when carrying out the
excavation works on Bardgrove’s land, that duty of care did not extend to
avoiding or preventing the pure economic loss which the plaintiff suffered by
reason of the loss of stability of the land. This is because that economic loss
cannot be said to be the immediate consequence of the breach of duty to avoid
or prevent causing the actual physical damage or injury to the plaintiff’s land
and other property: see Spartan Steel and Alloys Ltd v Martin &
Co (Contractors) Ltd (supra) per Lawton LJ at p 47.
I therefore conclude this judgment by
holding that the answer to the questions posed by the preliminary issue is that
in neither case is the alleged cause of action disclosed against any of the
defendants in relation to the matter specified in the preliminary issue.
