Judgments - Delaware Mansions Limited and Others V Lord Mayor and Citizens of The City of Westminster

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    28. It seems to me therefore that any decision which your Lordships may give in this case must to some extent break new ground in English law. One point at least is clear. Double recovery could not be permitted. But there is no question of that in the present case, nor was there in Masters v Brent London Borough Council. The Church Commissioners here had not incurred the remedial expenditure; and on the authority of the West Leigh Colliery case, on which Westminster rely, they could apparently not have recovered depreciation in the market value of their property resulting from apprehension of future damage.

    29. Beyond that I think that the answer to the issue falls to be found by applying the concepts of reasonableness between neighbours (real or figurative) and reasonable foreseeability which underlie much modern tort law and, more particularly, the law of nuisance. The great cases in nuisance decided in our time have these concepts at their heart. In Sedleigh-Denfield v O'Callaghan [1940] AC 880, the House of Lords held that an occupier of land "continues" a nuisance if, with knowledge or presumed knowledge of its existence (in that case a defective grating giving rise to flood damage), he fails to take reasonable means to bring it to an end when he has reasonable time to do so. In Overseas Tankship (UK) Ltd v Miller Steamship Co Pty [1967] 1 AC 617, the second Wagon Mound case, the Privy Council, approaching the case under the rubrics of both nuisance and negligence, said, at p 644 per Lord Reid:

    "If it is clear that the reasonable man would have realised or foreseen and prevented the risk, then it must follow that the appellant is liable in damages".

    30. Once more, in Goldman v Hargrave [1967] 1 AC 645 , the Privy Council per Lord Wilberforce, as to an occupier's duty to take reasonable steps to prevent the spreading of a fire caused by lightning striking a tree, said, at p 663, and likewise not discriminating between nuisance and negligence (see at 656-657):

    "So far it has been possible to consider the existence of a duty, in general terms. But the matter cannot be left there without some definition of the scope of his duty. How far does it go? What is the standard of the effort required? What is the position as regards expenditure? It is not enough to say merely that these must be 'reasonable', since what is reasonable to one man may be 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".

    31. In both the second Wagon Mound case and Goldman v Hargrave the judgments, which repay full rereading, are directed to what a reasonable person in the shoes of the defendant would have done. The label nuisance or negligence is treated as of no real significance. In this field, I think, the concern of the common law lies in working out the fair and just content and incidents of a neighbour's duty rather than affixing a label and inferring the extent of the duty from it.

    32. Even in the field of Rylands v Fletcher strict liability ((1868) LR 3 HL 330) the House of Lords in Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264 has stressed the principles of reasonable user and reasonable foreseeability: see the speech of Lord Goff of Chieveley, at pp 299-301. It was the absence of reasonable foreseeability of harm of the relevant type that excluded liability in that case.

    33. Approaching the present case in the light of those governing concepts and the judge's findings, I think that there was a continuing nuisance during Flecksun's ownership until at least the completion of the underpinning and the piling in July 1992. It matters not that further cracking of the superstructure may not have occurred after March 1990. The encroachment of the roots was causing continuing damage to the land by dehydrating the soil and inhibiting rehydration. Damage consisting of impairment of the load-bearing qualities of residential land is, in my view, itself a nuisance. This is consistent with the opinions of Talbot J in the Masters case [1978] 1 QB 841 and the Court of Appeal in the instant case, although neither Talbot J nor Pill LJ analysed specifically what they regarded as a continuing nuisance. Cracking in the building was consequential. Having regard to the proximity of the plane tree to Delaware Mansions, a real risk of damage to the land and the foundations was foreseeable on the part of Westminster, as in effect the judge found. It is arguable that the cost of repairs to the cracking could have been recovered as soon as it became manifest. That point need not be decided, although I am disposed to think that a reasonable landowner would notify the controlling local authority or neighbour as soon as tree root damage was suspected. It is agreed that if the plane tree had been removed, the need to underpin would have been avoided and the total cost of repair to the building would have been only £14,000 (joint statement of facts and issues, paragraph 23). On the other hand the judge has found that, once the council declined to remove the tree, the underpinning and piling costs were reasonably incurred, despite the council's trench.

    34. It is at this point that I see Solloway v Hampshire County Council, 79 LGR 449 as important as a salutary warning against imposing unreasonable and unacceptable burdens on local authorities or other tree owners. If reasonableness between neighbours is the key to the solution of problems in this field, it cannot be right to visit the authority or owner responsible for a tree with a large bill for underpinning without giving them notice of the damage and the opportunity of avoiding further damage by removal of the tree. Should they elect to preserve the tree for environmental reasons, they may fairly be expected to bear the cost of underpinning or other reasonably necessary remedial works; and the party on whom the cost has fallen may recover it, even though there may be elements of hitherto unsatisfied pre-proprietorship damage or protection for the future. But, as a general proposition, I think that the defendant is entitled to notice and a reasonable opportunity of abatement before liability for remedial expenditure can arise. In this case Westminster had ample notice and time before the underpinning and piling, and is in my opinion liable.

"A world elsewhere"

    35. Although counsel evidently preferred a more insular approach, it can be useful to remember that there is a common law world elsewhere which may provide some help, particularly on issues where English law is not yet settled. Without undertaking extensive research, it is not difficult to find some support for the views already expressed in Australasian and United States jurisprudence.

    36. In Fleming, The Law of Torts 9th ed (1998), p 498 there is the following passage:

    "Abatement is a privilege, not a duty. An ancient ruling has it that it 'destroys any right of action in respect of the nuisance'. But as now interpreted, it means no more than that the act of abatement has the effect of removing the nuisance so that the claimant is not entitled to future damages. He may, however, recover damages for past injury. And although some dicta assume that the cost of removing the nuisance is also irrecoverable, it has been held that this does not preclude reimbursement for the cost of mitigating future damage".

    For the last sentence three decisions are cited in a footnote, two of them in roots cases, namely Proprietors of Strata Plan No 14198 v Cowell (1989) 24 NSWLR 478; and City of Richmond v Scantelbury [1991] 2 VR 38, 48. It is of interest that in the Cowell case in the Supreme Court of New South Wales, Hodgson J said, at p 488:

    "In a case such as this, as a general rule, I think it is highly desirable that persons in the position of the defendants be given notice of this kind, and thus have a fair opportunity to abate the nuisance themselves before large sums of money are spent on such works as building barrier walls."

    The judge went on to excuse the failure to give notice in that particular case, on the ground that it would have made no difference to the inactivity of the defendant. He also found that the defendant was not liable until it (knowingly) adopted a continuing nuisance which had not been reasonably foreseeable. On the particular facts he disallowed the cost of underpinning but allowed the cost of other remedial works.

    37. In Prosser and Keeton on Torts 5th ed (1984), p 640 there is this:

    "Also, in addition to the depreciation measure of damages, the plaintiff in a nuisance case may recover the reasonable cost of his own efforts to abate the nuisance or prevent future injury. For example, where a sewer line backed up and overflowed into the plaintiff's theater, the plaintiff hired a contractor to re-lay lateral sewer lines to avoid the problem in the future, and the contractor's charges being reasonable, the plaintiff was allowed to recover them. Such decisions seem correct, though it should also be noted that to the extent the plaintiff is in fact able to abate the nuisance by his own efforts, or to the extent it is abatable by injunction, permanent damages are not assessed."

    The sewer case cited is Stratford Theater v Town of Stratford 140 Conn 422 (1953). Two other cases are cited.

    38. In the end, in my opinion, the law can be summed up in the proposition that, where there is a continuing nuisance of which the defendant knew or ought to have known, reasonable remedial expenditure may be recovered by the owner who has had to incur it. In the present case this was Flecksun. Accordingly I would dismiss the appeal with costs.

LORD CLYDE

My Lords,

    39. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Cooke of Thorndon. I agree with it and for the reasons which he has given I, too, would dismiss this appeal.

LORD HUTTON

My Lords,

    40. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Cooke of Thorndon. I agree with it and for the reasons which he has given I, too, would dismiss this appeal.

 
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