Claimant purchasing plot of land for garden and recreational use – Claimant planting trees and building structures on land – Defendant destroying garden and structures – Damages – Whether claimant entitled to costs of full reinstatement – Judge reducing damages awarded – Appeal allowed
In 1969 a field at Pigsfoot Farm, Hadlow Down, Sussex, was divided into 95 plots and offered for sale for garden and recreational use. The claimant purchased a 70 ft by 40 ft plot as a memorial to his daughter, who had died prematurely. The claimant and his wife tended it carefully and planted a number of willow and cypress trees, which matured over the years. The claimant erected fencing and an octagonal structure serving as a shelter and as an observatory, and he installed a septic tank, water supply and water pump.
Subsequently, the defendant acquired the vendor’s remaining interest. In December 1995 the defendant’s contractor totally cleared the site of the plots using a JCB excavator. The claimant issued proceedings claiming damages. The district judge held that reinstatement rather than diminution in value was the proper basis on which to assess damages and awarded £24,600, made up of £13,500 for the replacement of the willow and cypress trees with mature trees and £5,000 for their aftercare, £1,100 for the loss of the fence, octagonal structure, observatory and septic tank, £2,000 exemplary damages and £3,000 general damages. The defendant appealed. The judge held that, although diminution in value was the appropriate way to assess damages, the extra cost to the defendant of reinstating the trees with mature trees outweighed the advantages to the claimant. He reduced the total award of damages to £5,300, consisting of £2,000 for the restoration of the willow and cypress trees with young trees, £800 for the loss of the fence, observatory and septic tank, with nothing for the octagonal structure, £500 aggravated damages and £2,000 general damages. The claimant appealed, seeking to reinstate the district judge’s award.
Held: The appeal was allowed.
1. The district judge and the judge had both correctly held that the cost of reinstatement was the appropriate basis on which to assess damages. The question then arose whether the claimant was entitled to the reasonable costs of full reinstatement, or whether full reinstatement was unreasonable. Damages were to be limited to the reasonable costs of reinstatement to a reasonable degree. The judge had been correct in concluding that it was unreasonable for the claimant to receive the cost of planting mature trees, but it was not unreasonable for him to receive the cost of grown trees rather than young trees. Accordingly, it was appropriate to award £8,000 for the restoration of the willow and cypress trees with £500 for their aftercare.
2. The extent to which the property was restored was also relevant to general damages to the extent that if the reinstatement only partially restored a loss, then loss of amenity had to be taken into account in assessing general damages. However, each case depended on its facts. The claimant would have neither mature trees, nor the structures that had previously been on the plot, for a significant period. The district judge had had all the relevant factors in mind when she had awarded £3,000 and the judge had not been entitled to reduce it. Therefore, the claimant was entitled to £3,000 general damages. It had been conceded that the judge had been right to award aggravated damages, but £500 was manifestly too low and, in all the circumstances, it could be concluded that £1,000 was appropriate.
See paras 1474 to 1481 of McGregor on Damages (16th ed) (1997), Farmer Giles Ltd v Wessex Water Authority [1990] 1 EGLR 177, Jordan v Norfolk County Council [1994] 1 WLR 1353 and Rookes v Barnard [1964] AC 1129.
Donald McCoville (instructed by Mary Tucker & Co, of Benfleet) appeared for the claimant; Mathew Hardwick (instructed by Cooper & Burnett, of Tunbridge Wells) appeared for the defendant.
Thomas Elliott, barrister
