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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Holbeck Hall Hotel Ltd & Anor v Scarborough Borough Council [2000] EWCA Civ 51 (22 February 2000) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2000/51.html Cite as: (2000) 2 TCLR 865, 69 Con LR 1, [2000] EG 29, [2000] 2 WLR 1396, [2000] NPC 17, [2000] 2 All ER 705, [2000] QB 836, [2000] EWCA Civ 51, [2000] EGCS 29, [2000] BLR 109, [2000] BLGR 412 |
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Respondents | ||
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Appellant |
Limited,
180 Fleet Street
Holbeck
Hall
Hotel
was a four-star
hotel
standing about 65 metres above sea
level on South Cliff,
Scarborough.
It looked out over an expanse of lawn to
panoramic
views
of the North Sea. That was on the morning of 3 June 1993. But
three days later, as a result of a massive land-slip which took place in four
stages, the lawn had disappeared and the ground had collapsed under the whole
of the seaward wing of the
hotel.
The rest of the
hotel
was unsafe and had to
be demolished. Because the slip was progressive everyone was evacuated without
injury.
hotel
were the first claimants who in 1980 leased
the property to the second claimants on a 21 year lease. The judge drew no
distinction between the two claimants in considering the question of liability.
I shall do the same and refer to them collectively as `the Claimants'. The
Defendants, `
Scarborough',
are the local authority; however they are not sued
as such, but as owners and occupiers of the land between the
hotel
grounds and
the sea.
hotel
was built in 1880 by Charles
Alderson Smith, who at that time owned about 9 acres of land extending to the
sea. By a conveyance of 1 February 1887 he conveyed on sale the northern part
of the `undercliff' forming the eastern slope of his property to the
Borough
of
Scarborough.
That conveyance contained no covenant for support. On 2 August
1895 he conveyed to the
Borough
the remaining, southern, part of the undercliff
in consideration of certain `conditions, restrictions and obligations' which
included covenants for the maintenance of the undercliff on which the Claimants
relied in the action.
Scarborough
were liable to the Claimants for the result of the collapse on the grounds that
they were in breach of a measured duty of care at common law. It is against
that decision that
Scarborough
appeal. The judge rejected two other grounds
upon which the Claimants had based their claims, namely that
Scarborough
had
interfered with their easement of support and failure to comply with the
covenant in the 1895 conveyance. There is no cross-appeal on these grounds.
Scarborough
claimed, in the event of their being held liable to the Claimants, relief
against Geotechnical Engineering (Northern) Ltd (`GEN') on the basis that GEN
had been negligent in carrying out a site investigation and reporting to
Scarborough
in 1984 and 1985. The judge held that there was negligence on the
part of GEN, but dismissed the claim on the basis that the negligence was not
the cause of
Scarborough's
liability to the Claimants. There is no appeal from
this decision.
Scarborough
own some 42 acres of the coastline. In the area in question the
upper part of the cliff consisted of a blanket of what was
variously
described
as boulder clay or glacial till, deposited in geologically recent times during
and at the end of a period of glaciation. Below that, outcropping at about 25
metres above sea level, was a layer of mudstones of Jurassic origin (and
therefore much older), in this locality called the Scalby Formation. That, in
turn, overlay a bed of much harder quartz sandstone known as the Moor Grit,
which outcropped at about 12 metres to form a nearly
vertical
base to the cliff
where not hidden by man-made structures or by fallen debris from above. At sea
level that gave way to a limestone, known locally as the Black Rocks, but
nothing turns on its presence or properties.
Holbeck
Hall
by 1912 and along the adjoining stretch of
coast to the north by 1893, the inherited instability above and behind those
works will for a while continue to produce similar slips, although if the sea
defences hold the process will in time slow down as the slopes behind them
become shallower and eventually approach an equilibrium.
very
slow and intermittent by human standards,
and the timing of particular episodes is entirely unpredictable. It is not in
dispute that what is described in the last sentence of the last paragraph is
still at an early stage of its evolution in the area with which this case is
concerned. It is also not in dispute that within
limits
its progress can be
modified by human intervention, for example by drainage; the maximum slope
sustainable in fully drained soil can be up to twice that in the same soil
undrained.
Holbeck
Hall
and the sea. Many of these were on a much smaller scale than that of 1993
including all of those which impinged on the site of the slip. But the judge
held that there were two, not far away, of comparable magnitude. In this
appeal
Scarborough
accept that there was one, namely that in 1893; they dispute
that there was another. But it seems to me that both the Defendants' pleadings
(p99, admission of large scale slope movements; p207-80A allegation in further
and better particulars in the GEN action of large slips in 1737, 1892/3 and
1915) and the evidence (see particularly p209-001-2; 207-004; 229 Mr Clements;
207-77 Mr Chamley and 227) justify the judge's conclusion that there were two
such slips.
Scarborough
for the purpose of the
action which demonstrates the process where, over the period between 1892 and
1983 slips had taken place in the area; this drawing also demonstrates that
Scarborough
had dealt with these slips by regrading the surface and installing
drainage in the form of herring bone drains to remove water from the cliff.
Scarborough's
land below
Holbeck
Hall.
Scarborough
decided that they needed outside assistance in dealing with it. Mr
Clements, the
Borough's
Chief Engineer, said this was because of the size of
the slip which was larger than that which was repaired by
Scarborough
in the
normal course and because they needed to ascertain if there was anything
special or peculiar about this particular site. There was a need for a site
investigation to enable
Scarborough
to consider the form of remedial work for
this relatively large slip and to prevent further slipping and to make the
slope stable.
Scarborough's
engineer's report of 1 December 1987 noted that the "area has been a problem
for a number of years because of cliff movement." As a result of the second
slip the top of it was about 30-35 metres from the Claimants' boundary.
Council,
dated 29 September 1988, inviting
him to a site meeting, Mr Clement's wrote:
visit
should take place as I am becoming
increasingly concerned that if the slip is left unchecked it will eventually
lead to the closure of a part of the Cleveland Way, remove the cliff path that
exists between Seacliff Car Park,
Holbeck
Ravine and ultimately the gardens to
the cliff, and finally could affect the land forming part of the property of
the
Holbeck
Hall
Hotel.
This slip is not one which is, in my
view,
at any time likely to lead to coast
protection grant as it does not appear to be prejudicing the stability of the
existing sea defences.
Borough
Council,
and the costs are likely to be not
insignificant. It is my intention to make a bid for the scheme in next year's
capital estimates, but unless Members are aware of the scale of the problem I
suspect it may be one that will tend to be overlooked in favour of other
apparently more urgent needs."
Scarborough,
contends that it does not show an awareness of the catastrophic
type of slip which occurred, but merely a likelihood of shallow or minor slips
which, if not remedied might in due course reach the Claimants' boundary.
Councillor
Allinson to whom the letter was addressed] were
concerned that, if work was not done, it would continue and go not just to the
Cleveland Way but into
Holbeck
Hall
Hotels
grounds as well?"
council
would not be prepared just to allow erosion to take place
in this situation where there were important amenities for local people and
property at the top of the slope?"
hotel
was likely to be at risk...""
Council's
Leisure and
Amenities Committee recommending the work and expenditure, it was said:
Holbeck
Ravine,
would sever pedestrian communication between these two points and ultimately
would be likely to expand into the grounds of the
Holbeck
Hall
Hotel.
The cost
of the remedial works is anticipated to be in the order of £280,000."
Scarborough's
engineer who designed
them, was dead, they were not, as the judge found, of the correct design.
Instead of being herring bone drains, as had previously been adopted by
Scarborough
in the locality, and as was recommended by GEN, the work consisted
of a grading of the slope with removal of some spoil and a 300mm drainage
blanket consisting of granular material on top.
Scarborough,
through their responsible engineers,
knew that if appropriate remedial action was not taken the landslip would be
likely to progress and at some indeterminate time in the future affect the
Claimants' land. They do not show that those engineers either foresaw, still
less knew, that the hazard was of such a magnitude that it would be likely to
involve a large part of the grounds and the
hotel
itself. Whether such
foresight or knowledge is a necessary precondition for liability is a matter in
dispute.
volume
much the
greater part of that land was
Scarborough's,
but it was the upper section
which was the Plaintiffs' and because of the geometry of the slip circle and
the physics of the forces in operation the disproportion in the slip surfaces
on each side was less and that of the shearing force creating the slip less
still."
Scarborough
were aware, and in
any event should have been aware, of the hazard to the Plaintiffs constituted
by the potential failure of support of the Plaintiffs' land by
Scarborough."
He relied on three matters as showing actual awareness:
Scarborough's
knowledge of the hazard, the
judge held that
Scarborough
were under a measured duty of care to the
Claimants. In so doing he rejected the submission made on behalf of
Scarborough
that in an action based on loss of support, mere omission on the
part of the owner or the servient tenement was not actionable in the absence of
positive action by him withdrawing the support. In so doing the judge followed
the line of authority exemplified by the decision of this Court in Leakey
v
National Trust [1980] 1 QB 485 in preference to the earlier authorities
such as Sack
v
Jones [1925] Ch 235 and the dictum of Sir Wilfred Greene
MR in Bond
v
Nottingham Corporation [1940] 1 Ch 429, 438. This is an
important issue of law which has not been considered in any reported decision
of this Court. Mr Stow submits that the judge's decision on this point was
wrong.
Scarborough
were under a duty of care, the judge
considered in what respects they were in breach of it. He made the following
findings:
Scarborough
were not negligent in failing to appreciate from the GEN
report (and indeed it arguably may not have been the case) that a deep seated
slip was more likely than a shallow one, but that
Scarborough
were negligent in
designing and carrying out works appropriate only to a shallow slide (although
he later held they were not in fact so appropriate) without excluding the
possibility that the 1982 and /or 1986 slip had been deep seated. That
possibility was raised in the GEN report; it had not been investigated, let
alone excluded in relation to the 1986 slip and no slip plane was identified in
designing or executing the works.
Scarborough
were
negligent in failing to follow GEN's recommendations in their report that
further investigation should be carried out to identify the slip plane, carry
out suitable effective stress testing or rigorous slope stability analysis, on
the basis that such recommendations were not expressed in firm or positive
terms. This indeed was one of the bases of his finding of negligence on the
part of GEN; but -
limited,
being centred on the characterisation of the 1982 slip and
its treatment in
Scarborough's
own interests. Even if that were extended to
include the 1986 slip it would not be adequate to cover the scope of
Scarborough's
duty to the Plaintiffs in the light of paragraphs 58 and 81
above. An assessment was needed of the danger to the Plaintiffs' land as well
as
Scarborough's
own. I therefore find that
Scarborough
were negligent in
failing to carry out further investigations."
Holbeck
Hall."
(f) The judge was critical of the design and execution of remedial works
carried out by
Scarborough
and held that it was negligent. At paragraph 114 he
said:
Scarborough's
officers. It did aim to
provide drainage to the water-bearing horizons within the slope, but failed to
do so because their outlets at the sloping surface had been cut off by the
claylike mass of slipped material, which was not all removed before the
drainage blanket was laid."
Scarborough:
(a) There is no duty to take positive steps to provide support for a
neighbour's land. Mere omission is not sufficient. The decision in
Leakey's case is not applicable to the right of support, but is confined
to encroachment or escapes from the Defendant's land onto the Plaintiff's land.
Accordingly there is no liability.
Scarborough
knew of the hazard to the Claimants' land is wrong. It is not sufficient that
the Defendants knew that some relatively minor damage to the Claimants' land
might occur if remedial steps were not taken. They did not know and could not
know without carrying out further extensive and two-stage investigation by
experts, the catastrophic nature of the hazard. In the absence of such
knowledge no duty arose.
Scarborough
ought to have known of the hazard to the Claimants.
v
Jones [1925] Ch 235; Macpherson
v
London Passenger Transport Board
(1946) 175 LT 279). The principle was stated by Sir Wilfred Greene MR (with
whose judgment Mackinnon and Clauson LJJ agreed) in Bond
v
Nottingham
Corporation [1940] 1 Ch 429 at p438:
vested
in his neighbour."
v
Low Beechburn Coal
Co. [1897] 2 QB 165 and
Hall
v
Duke of Norfolk [1900] 2 Ch 493 where
it was held that a landowner was not liable for damage caused to neighbouring
land by subsidence occasioned by excavations or other acts of his predecessor
in title, although the damage did not occur until the Defendant came into
possession.
v
Herbert [1911] 2 KB 633 and the decision of the majority
of the Court of Appeal, Bankes LJ and Astbury J in Job Edwards
v
The Company
of Proprietors of the Birmingham Navigation [1924] 1 KB 341). But in that
case Scrutton LJ dissented. The facts of the case are well-known. Trespassers
had deposited refuse on the Plaintiff's land which caught fire and posed a
threat to the canal company. By agreement between the parties the canal
company entered the Plaintiff's land and extinguished the fire. The
Plaintiffs, without prejudice to the legal position, paid half the cost of the
work of extinguishing the fire and in the action sued to recover the cost on
the ground that they were not liable to abate the nuisance started by a
trespasser. Scrutton LJ considered that there was no justification for the
distinction between public and private nuisance. He approved at p360 a
statement by Professor Salmond in his book on Torts:
v
O'Callaghan [1940] AC 880 the House of Lords
approved Scrutton LJ's dissenting judgment, and held that an occupier of land
continues a nuisance if with knowledge or presumed knowledge of its existence,
he fails to take reasonable means to bring it to an end when he has ample time
to do so; and he adopts it if he makes use of the erection or artificial
structure that constitutes the nuisance. In that case a trespasser had laid a
pipe or culvert in a ditch which drained the Defendant's land. He had placed a
grid, not at some distance from the pipe, but on top of it so that in heavy
rain it became blocked with leaves and flood water escaped and flooded the
Plaintiff's flats on the adjoining land. The Defendant's responsible servant
was aware of the existence and position of his pipe and grid. The Defendants
were held liable. I shall have to return to this case when I consider what is
meant by `ought to have known' of the danger.
v
Hargrave [1971] AC 645 the Privy
Council
extended the
principle in Sedleigh-Denfield's case to a hazard caused on the
Defendant's land by the operation of nature. In that case a tall redgum tree
on the Defendant's land was struck by lightening and set on fire. The
Defendant at first took reasonable steps to deal with the problem. He cleared
and dampened the area round the tree and then cut it down. Having done so,
however, the Defendant took no further steps to prevent the spread of fire,
which he could readily have done by dousing it with water. Instead, he let the
fire burn out. The wind got up and set light to the surrounding area from
whence it spread to the Plaintiff's land and damaged his property. The Privy
Council
held the Defendant liable. There was no difference in principle
between a nuisance created by a trespasser and one created by the forces of
nature, provided the Defendant knew of the hazard. Lord Wilberforce, who
delivered the advice of the Board, said in relation to the supposed distinction
at p661:
v
National Trust the Court of Appeal held that the law, as
laid down in Goldman's case, correctly stated the law of England. In
that case the Plaintiffs' houses had been built at the foot of a large mound on
the Defendant's land. Over the years soil and rubble had fallen from the
Defendant's land onto the Plaintiffs'. The falls were due to natural
weathering and the nature of the soil. By 1968 the Defendants knew that there
was a threat to the Plaintiffs' properties. After a
very
dry summer and wet
autumn a large crack opened in the mound above the Plaintiffs' house. They
drew the Defendant's attention to the danger to their houses; but the Defendant
said it had no responsibility. A few weeks later a large quantity of earth and
some stumps fell onto the Plaintiffs' land. In interlocutory proceedings the
Defendant was ordered to carry out the necessary work to abate the nuisance.
The Court of Appeal upheld the judge's decision in the trial of the action to
the effect that the Defendant was liable.
v
Tod Heatley [1897] 1 Ch 560.
It is dealt with also in the speech of
Viscount
Maugham in the
Sedleigh-Denfield case [1940] AC 880, 893, 894, and in the speech of
Lord Atkin at p899, 900."
view
of the editor of Gale on
Easements 16th Ed. paragraphs 10, 26 and 27. In the alternative Mr Stow argued
that the principle in the three cases of Sedleigh-Denfield,
Goldman and Leakey should be confined to cases where there is an
escape or encroachment of some noxious thing from the Defendant's land to that
of the claimant. He points to the repeated use of the word `encroachment' in
the judgment of Megaw LJ at p514 B-D. On the other hand it is difficult to see
what difference there is in principle between a danger caused by loss of
support on the Defendant's land and any other hazard or nuisance there which
effects the claimant's use and enjoyment of land. Encroachment is simply one
form of nuisance; interference causing physical damage to the neighbour's land
and building as a result of activities on the Defendant's land is another form
of nuisance. There seems no reason why, where the Defendant does not create
the nuisance, but the question is whether he had adopted or continued it,
different principles should apply to one kind of nuisance rather than another.
In each case liability only arises if there is negligence, the duty to abate
the nuisance arises from the Defendant's knowledge of the hazard that will
affect his neighbour.
v
Lindsey [1983] 2 All ER 408. In that case there were two
adjoining properties with a party wall. The Plaintiffs owned No. 55, the
Defendant No. 53. No. 53 became dilapidated and
vandalised;
there was an
outbreak of dry rot which spread to No. 55. The local authority made a
demolition order and when the Defendants took no action, demolished No. 53 but
left the party wall largely unsupported. The Plaintiffs sued for damage caused
by the dry rot and the loss of support. HH Judge Blackett-Ord
V-C,
sitting as
a judge of the High Court, gave judgment for the Plaintiff. He applied the
decision in Leakey. Mr Stow submits that the decision with regard to
the dry rot is well within the Leakey principle and causes him no
difficulty; it was a case of encroachment or escape. He submitted that the
decision on the interference with support can be upheld on the ground that the
destruction of the building, thereby removing the cross-walls which afforded
support to the party wall, was active interference - it was misfeasance and not
non-feasance. That may be so, but it was not the basis of the decision.
v
Bruton and others an unreported
decision of this Court. Transcript 28 July 1993. The case seems to have
escaped the attention of the law reporters. perhaps because the facts are
somewhat complex and the Court was divided in the result. However, I accept Mr
Symon's submission that all three members of the Court adopted the
Leakey principle in relation to a claim for loss of support. The facts
are as follows: In 1990 the Appellant P bought a coach house which had
previously been owned or occupied by the other Defendants. The coach house was
about 100 years old. After it was built a cottage was constructed; one of the
walls of the cottage was a wall of the coach house. Moreover the roof of the
cottage was supported on one side by 2'8" of wall which rose up on and above
the wall of the coach house. The coach house had got into disrepair. In 1987
there had been serious ingress of water from the coach house which had entered
the cottage. P was not liable for this, though his predecessors were; P had
carried out repairs which prevented further ingress of water. But over the
years the ingress of water had loosened and softened the mortar in the 2'8" of
wall which supported the cottage roof. The Plaintiff, the owner of the
cottage, sued P on the grounds that this section of wall no longer provided
support for his roof and was a nuisance. It is clear that P had not caused the
state of affairs in the wall; but he knew of it. The county court judge held P
liable on the grounds that the wall was a nuisance and P had continued it. He
applied the decision in Leakey. Dillon LJ upheld this decision. But I
and Evans LJ allowed P's appeal. We did so on the basis that although the wall
had been affected, it only amounted to a nuisance "if the wall is no longer
supporting the roof of the cottage or there is an imminent risk that it will
cease to do so." (See my judgment p30F); and this was not established on the
facts. Dillon LJ thought that it was. In the course of his judgment Dillon LJ
at p18E, after citing the dictum of Sir Wilfred Greene MR in Bonds case
(which I have referred to in paragraph 27) said:
Viscount
Maugham said at
p887:
Scarborough
knew of a defect in their
land, and that they realised that there was a risk of a slip, they did not
know, and could not have known without the two stage geological investigation,
of the defect; in particular, as Mr Clements said in his evidence in the
passage I have cited, that they realised that over many years there might be
progressive slips which eventually might affect the Plaintiffs' grounds, but
they did not and could not have realised the serious extent of the slip plane
or the fact that it extended so far into the Claimants' land as to affect the
hotel.
He submits that while
Scarborough
did foresee some damage to the
Claimants' land, if nothing was done about the existing slip. they could not
reasonably have foreseen the catastrophic danger that materialised. Mr Stow
seeks to draw a distinction between a shallow slip, which is what the 1982 and
1986 slips were, and a rotational slide, which is what the 1993 slip was, and
the 1893 and the other major slip, to which the judge refers, were. I am not
sure that a differentiation between the nature of the slips is a critical one.
But it is in my
view
clear that
Scarborough
did not foresee a danger of
anything like the magnitude that eventuated. It was common ground that the GEN
report gave no clue of such an eventuality; and it seems clear that they could
not have appreciated the risk without further investigation by experts.
Scarborough's
liability. In most cases where physical injury either to the person or
property of the Claimant is reasonably foreseeable, the Defendant will be under
a duty of care and will be liable for all damage of the type which was
foreseeable, whether the actual extent of the damage is foreseeable or not.
This is so in cases where the Defendant's activity gives rise to the danger,
whether it be the manner of his driving, the operations conducted on his land
or in his business, or the treatment he gives as a professional undertaking the
care of his patient. It matters not that he did not foresee the full extent of
the injury in fact sustained. So too in cases of economic loss; if there is
the necessary foreseeability of the type of damage sustained and proximity,
subject to the need for it to be fair, just and reasonable for a duty to be
imposed, the Defendant will be liable for all damage of the type foreseen, even
if the full extent was not foreseen or reasonably foreseeable.
Scarborough
knew that there was a defect on their land, i.e. the existence of a
slip plane and consequent risk of a slip, and provided they either did or ought
as reasonable people to have foreseen that it might affect the Claimants' land
more than to a trivial extent, they are liable for the full extent of the
damage. Mr Symons relied on the well-known decision of Hughes
v
Lord
Advocate [1963] AC 837 in support of his proposition. But there the duty
of care existed, damage of the type which occurred, namely injury by burning,
was foreseeable as a result of the Defendant's operations, it was merely that
the source of danger acted in an unpredictable way. As Lord Morris of
Borth-y-Guest put it at p853:
view,
there was a duty owed by the defenders to safeguard the
pursuer against the type or kind of occurrence which in fact happened and which
resulted in his injuries, and the defenders are not absolved from liability
because they did not envisage "the precise concatenation of circumstances which
"led up to the accident."...."
Scarborough
have done nothing to
create the danger which has arisen by the operation of nature. And it is clear
that the scope of the duty is much more restricted. It is defined in the cases
of Goldman and Leakey as a measured duty of care. In the former
case Lord Wilberforce said at p663A:
very
unreasonable, and indeed ruinous, to another: the law must take
account of the fact that the occupier on whom the duty is cast has, ex
hypothesi, had this hazard thrust upon him through no seeking or fault of
his own. His interest, and his resources, whether physical or material, may be
of a
very
modest character either in relation to the magnitude of the hazard,
or as compared with those of his threatened neighbour. A rule which required
of him in such unsought circumstances in his neighbour's interest a physical
effort of which he is not capable, or an excessive expenditure of money, would
be unenforceable or unjust. One may say in general terms that the existence
of a duty must be based upon knowledge of the hazard, ability to foresee the
consequences of not checking or removing it, and the ability to abate it.
And in many cases, as, for example, in Scrutton LJ's hypothetical case of
stamping out a fire, or the present case, where the hazard could have been
removed with little effort and no expenditure, no problem arises. But other
cases may not be so simple. In such situations the standard ought to be to
require of the occupier what it is reasonable to expect of him in his
individual circumstances. Thus, less must be expected of the infirm than of
the able-bodied: the owner of a small property where a hazard arises which
threatens a neighbour with substantial interests should not have to do so much
as one with larger interests of his own at stake and greater resources to
protect them: if the small owner does what he can and promptly calls on his
neighbour to provide additional resources, he may be held to have done his
duty: he should not be liable unless it is clearly proved that he could, and
reasonably in his individual circumstance should, have done more. This
approach to a difficult matter is in fact that which the courts in their more
recent decisions have taken. It is in accordance with the actual decision in
the Job Edwards case, where to remove the hazard would have cost the
occupier some £1000 - on this basis the decision itself seems obviously
right. It is in accordance with Pontardawe Rural District
Council
v
Moore-Gwyn, where to maintain the rocks in a state of safety would have
cost the occupier some £300."
vastly
more extensive than that
which was foreseen or could have been foreseen without extensive further
geological investigation; and this is particularly so where the defect existed
just as much on the Claimant's land as on their own. In considering the scope
of the measured duty of care, the courts are still in relatively uncharted
waters. But I can find nothing in the two cases where it has been considered,
namely Goldman and Leakey to prevent the Court reaching a just
result.
view
is fortified inasmuch as a title to
land cannot be discarded or abandoned. Why should the owner of land in such a
case be bound to protect his neighbour's property and person rather than that
the neighbour should protect his interests against the potential danger?
v
Dickman [1990] 2 AC 605, in which the three stage test for the existence of a duty of care was
laid down, namely foreseeability, proximity and the need for it to be fair,
just and reasonable. In Marc Rich & Co.
v
Bishop Rock Ltd [1996] 1 AC 211 it was held that the three stage Caparo test was appropriate
whatever the nature of the damage. (See per Lord Steyn at p235 approving a
dictum of Saville LJ). The requirement that it must be fair, just and
reasonable is a
limiting
condition where foreseeability and proximity are
established. In my judgment
very
similar considerations arise whether the
court is determining the scope of a measured duty of care or whether it is
fair, just and reasonable to impose a duty or the extent of that duty. And for
my part I do not think it is just and reasonable in a case like the present to
impose liability for damage which is greater in extent than anything that was
foreseen or foreseeable (without further geological investigation), especially
where the defect and danger existed as much on the Claimants' land as the
Defendants.
Scarborough
knew or ought to have known of the hazard
that might affect the support for the Claimants' land. He must, I think, have
acceded to the submission that that was sufficient to give rise to the duty of
care and potential liability for all the damage that ensued, whether
foreseeable or not, because in considering the scope of the measured duty of
care he adverted only to such matters as
Scarborough's
ability to do the
remedial works and the question of a contribution from the Claimants. Yet it
is clear, as it seems to me, that he must have considered that
Scarborough
did
not and could not have known of the extent of the defect or potential damage,
without the two stage investigation by experts.
Scarborough
were
liable for all the damage to the Claimants' land,
hotel
and business, subject
as to a deduction for such contribution as the Claimants' would have made, if
the matter had been discussed and agreed between the parties, to an effective
remedy. Such a scheme, we were told by Counsel would have cost in the order of
£500,000 and would have affected a substantial part of the
hotel
grounds.
The judge has not yet determined what that contribution would have been. In
the light of my conclusion that this is not the correct question or measure of
damage, I need make no comment on the task the judge had set himself, save to
say, that it is by no means an easy matter to decide what the parties would
have decided if they had known the full extent of the hazard. It is obvious
that the Claimants had far more at stake than
Scarborough,
even though the
latter were anxious to preserve the amenity of the cliff walks and gardens if
they could, even to the extent of spending about £120,000 on the abortive
1989 works (and as the report referred to in paragraph 18 indicated possibly up
to £280,000).
Scarborough's
duty was confined to an obligation to take care to avoid damage to the
Claimants' land which they ought to have foreseen without further geological
investigation. It may also have been
limited
by other factors, as the passages
from Goldman and Leakey cited in paragraphs 46 and 48 make clear,
so that is not necessarily incumbent on someone in
Scarborough's
position to
carry out extensive and expensive remedial work to prevent the damage which
they ought to have foreseen; the scope of the duty may be
limited
to warning
claimants of such risk as they were aware of or ought to have foreseen and
sharing such information as they had acquired relating to it.
Scarborough
ought to have foreseen,
(without any further investigation) if they did not carry out effective
remedial work of the type they had previously done and which GEN recommended?
It is not possible to be precise about this. But in my judgment it is not
necessary to send the matter back to the trial judge to determine; I doubt
whether any more evidence could be available than that which is before us. The
1986 slip at its nearest point to the Claimants' land was some 35 metres (about
100 metres from the
hotel).
Progressive slips, if unchecked, might have been
expected eventually to extend some way into the
hotel
grounds, affecting the
rose garden and some part of the lawn. The
value
of such land would represent
the damage to the Claimants. In theory this should be subject to a deduction
for a contribution from the Claimants towards the cost of any remedial works.
But in practice it does not seem to me to be realistic to attribute any
value
to this part of
Holbeck's
land because in fact, albeit unknown to the parties,
this whole section of the grounds was liable to subside because of the
underlying defect. .
Scarborough
would be liable to the Claimants for all the damage they sustained
and
vice
versa.
I am
very
far from being persuaded that this is so; rather it
seems to me that each would have consented to the risk as regard themselves and
each would have a defence of
volenti
non fit injuria.
Scarborough,
save only that the
latter had skilled engineers on their staff and had longer experience of slips
on the cliff than the Claimants; though it should be noted that the Claimants
had owned the property since 1932. The judge recorded in paragraph 55 that it
was not suggested that the Claimants knew or ought to have known of the
potential dangers, so that they were not under any duty to
Scarborough
to
prevent collapse of their land onto
Scarborough's.
Mr Stow accepts that that
is so, because he says no-one knew of the latent defect here which affected
both properties and no-one foresaw or could reasonably foresee the extent of
the damage. But Mr Stow does not accept that the judge's finding means that
the Claimants were wholly ignorant of what was happening only a comparatively
short distance from the boundary and in full
view
of their rose garden. I
think Mr Stow is probably right about this. But I do not think it is necessary
to consider the matter further. The full extent of the defect on both the
Claimants' and
Scarborough's
land was latent. The extent to which the defect
was patent, namely the 1982 and 1986 slips, was not, without further expert
geological investigation, such that either party could reasonably foresee the
full extent of the danger or likely damage.
Scarborough
were under a duty to warn the Claimants of such risk as they did appreciate and
share with them the information contained in the GEN report. This is on the
assumption that the Claimants had not realised that there was any risk to them
from continuing unchecked erosion. This could well be within the
limited
scope
of the measured duty of care. But that is not how the case was pleaded or
argued. Moreover, even if a breach of such a duty could be established, there
would be formidable problems of causation, since the Claimants would have to
establish on balance of probability, that if they had this information they
would themselves or in conjunction with
Scarborough
have undertaken the further
geological investigation necessary to discover the extent of the problem and
then either themselves or in conjunction with
Scarborough have undertaken the
extremely expensive remedial works which I have referred to in paragraph 53.