British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
England and Wales Court of Appeal (Civil Division) Decisions
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: http://www.bailii.org/ew/cases/EWCA/Civ/2000/51.html
Cite as: [2000] QB 836, [2000] 2 WLR 1396, [2000] EWCA Civ 51, 69 Con LR 1, [2000] EG 29, [2000] EGCS 29, [2000] BLGR 412, [2000] NPC 17, [2000] 2 All ER 705, [2000] BLR 109, (2000) 2 TCLR 865
[New search] [Printable RTF version] [Buy ICLR report: [2000] 2 WLR 1396] [Buy ICLR report: [2000] QB 836] [Help]
Case No: QBENF 98/0902/A2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE TECHNOLOGY AND
CONSTRUCTION COURT (HH JUDGE HICKS QC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Tuesday 22 February 2000
LORD JUSTICE STUART-SMITH
LORD JUSTICE SCHIEMANN
and
LORD JUSTICE TUCKEY
HOLBECK HALL HOTEL LTD & ANR. |
Respondents | |
- and - |
||
SCARBOROUGH BOROUGH COUNCIL |
Appellant |
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
Timothy Stow QC & Paul Darling QC (instructed by Messrs Hammond Suddards of Leeds for the Appellant)
Christopher Symons QC & Paul Reed (instructed by Messrs Kennedys of London for the Respondents)
As Approved by the Court
Crown Copyright ©
LORD JUSTICE STUART-SMITH:
Introduction
1. 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.
2. The freehold owners of the 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.
3. The building which later became the 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.
4. By his judgment, dated 3 April 1998, HH Judge Hicks QC held that 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.
5. There was a parallel action, tried at the same time, in which 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.
Geology and History
6. 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.
7. In its natural state this part of the coast is subject to marine erosion, and the slopes of the cliffs are therefore steeper than they would be in the steady state which would eventually be reached in the absence of such erosion. In that condition of over-steepness they are inherently unstable. While coastal erosion continues they will retreat in step with it, combining a broadly constant profile overall with continually repeated change in detail from local slips. When the retreat of the coastline is checked by sea defence works, as it was below 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.
8. All these processes, although rapid in the geological timescale and readily foreseeable in broad effect, are 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.
9. There was much evidence from 1893 onwards of slips and collapses along the stretch of coastline which included the stretch between the grounds of 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.
10. At p210 there is a drawing prepared by 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.
11. In 1982 a slip or slips occurred on 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.
12. In the Summer of 1984 GEN were invited to tender for the work. The invitation to tender identified the purpose of the investigation as:
"A report is required to advise on the treatment required to the cliffs to make them stable and prevent further slipping of material onto paths and promenades below. There is also a problem with groundwater and recommendations are required as to what drainage facilities should be provided in each case."
13. GEN's tender was accepted and they were asked to give their urgent attention to the report and recommendations. GEN reported on 14 May 1985. The judge explained the effect of the GEN report at paragraph 91. For present purposes it is sufficient to summarise that explanation. After describing the action taken including sinking boreholes, it was said that the slip surface had not been identified although two slip surfaces were postulated, one being shallow and one deep. GEN advised that stability would be improved by drainage which lowered the ground water levels within the slipped mass. If the slip surface was shallow, a scheme dealing with the ground water just below it would make a substantial difference; but that degree of drainage would be substantially less effective if the slip surface was a deeper one. Drainage down to the base of the postulated slip would produce a big improvement. If any conclusion could be drawn from comparison between the two analyses it would be that the deeper slip was the more likely. In paragraph 5.4 of the report, under the heading `Remedial Measures', GEN said:
"Before designing remedial measure it may be prudent to carry out further investigation in the form of trial pits dug within the slip mass to try and locate the actual slip plane and to obtain samples suitable for effective stress testing to enable a rigorous slope stability analysis to be carried out."
14. On 27 November 1986 a further slip occurred at the site of the 1982 slip which effectively doubled the size of the previous one. 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.
15. In a letter to a member of the Council, dated 29 September 1988, inviting him to a site meeting, Mr Clement's wrote:
"I am most anxious that such a site 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.
It will be necessary, therefore, for any expenditure required to deal with this cliff slip to be met by the 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."
16. The judge held that this letter indicated actual knowledge of the hazard to the Claimants' land by the potential failure of support. Mr Stow QC, on behalf of 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.
17. Mr Clements was asked in cross-examination about this letter at p231:
"Q. "You and he [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?"
A. "Yes, but that was a surmise, I think.""
And later:
"Q. "....You were extremely concerned about this slip, hence your letter to the chairman of the committee?"
A. "I wanted the work done if there was a possibility of it being done, yes."
Q. "It had to be done, did it not, Mr Clements?"
A. "I do not know that it had to be done. I am not sure about that. It had been a progressive failure for many, many years, and presumably it would have progressed for many, many years to come."
Q. "But your 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?"
A. I do not think that the property, except to the extent that the grounds would be affected, would have been considered an issue because I do not think anybody at that time felt that the hotel was likely to be at risk...""
In my judgment this evidence is important because it indicates what Mr Clements contemplated and knew and justifies Mr Stow's submission to which I have referred in the previous paragraph. The judge does not refer to this evidence; he certainly does not reject it.
18. In a report by the Technical Director to the Council's Leisure and Amenities Committee recommending the work and expenditure, it was said:
" The area of the slip is extensive and, if left unattended, will eventually lead to the loss of the Cleveland Way between Seacliff and 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."
19. Remedial works were carried out in 1989. Unfortunately for reasons which were never explained because Mr Davies, 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.
20. I have set out these facts in some detail because in my judgment they justify the conclusion that 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.
21. There is a further feature of this case which is unusual. The hazard existed on both sides of the boundary. The judge explained this at paragraph 54:
" Whether one looks at the cause of the failure or at the remedial work which would have been necessary to avert it both properties are involved. Even if only the first phase of the 1993 collapse is considered it consisted of a single, indivisible, rotational movement of land on both sides of the boundary. It is true that in terms of both surface area and 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."
The judge himself did some calculations which broadly appear to have been accepted (see paragraph 52). He said that assuming uniform density the calculations indicated that:
"...on a first phase slip......where it penetrated most deeply into the Plaintiffs' land something like 46% of the shearing face would be developed on the Plaintiffs' side of the boundary...... As to preventive measures the scheme jointly advanced by the Plaintiffs' expert, Mr Chamley, and GEN's, Professor Denness, and which I accept as appropriate, would have involved the grading back of the cliff surface to a shallower angle of slope (some 24°), and that would have entailed the removal of the Plaintiffs' lawn to a depth of some 25 metres behind the then existing brow of the cliff."
As the plan on p217 illustrates the first phase of the slip extended only a comparatively short distance into the Claimants' land compared with the subsequent ones.
The judge's conclusion
22. At paragraph 81 the judge concluded that, "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:
(a) Mr Clement's letter of 29 September 1988. I have already commented on this in paragraphs 16 and 17.
(b) The proviso to the covenant in the 1895 conveyance. I cannot see how this can show actual awareness of the hazard in 1986 or subsequently; and Mr Symons QC on behalf of the Claimants did not seek to support this ground
(c) The entire history of cliff failures and remedial works along the coastline of which two slips were of comparable magnitude to that of 1993. I accept that this justifies the conclusion stated in paragraph 20 above, but I do not think that it goes any further than this.
23. On the basis of his finding of 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.
24. Having held that Scarborough were under a duty of care, the judge considered in what respects they were in breach of it. He made the following findings:
(a) That 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.
(b) At paragraph 112 he rejected the allegation that 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 -
(c) He said:
" The tone of those recommendations has to be gauged in the context of specific suggestions as to drainage which were designed to deal with the deepest conceivable slip surface and which therefore reduced the importance of locating that surface precisely. If those suggestions are disregarded the need to locate the slip surface returns and with it the force of the recommendations for further investigations, test and analyses. Secondly four years had elapsed and the 1986 slip had occurred; further investigation was clearly needed for that reason, especially in the light of the reservations in section 5.5 of the GEN report referred to in paragraph 97 above. Thirdly the scope of the GEN report was 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."
(d) The nature of these further investigations were described by the judge in paragraph 113:
" Those investigations would have involved the sinking of boreholes, the taking of samples for effective stress tests, the carrying out of such tests and the use of the resulting data to carry out a slope stability analysis. The area of that investigation might initially have been confined, without ground for criticism, to the site of the 1986 slip, but I accept the evidence of Mr Chamley and Professor Denness, who were in general altogether more impressive and credible witnesses than Professor Hanna, that the result would have been to indicate that the most likely failure was one also involving ground further up the slope, and that that would have led to the extension of the area of investigation. The end result (they say, and I accept) would have been advice that the most likely failure was a circular slip of the same order of magnitude as that which in the event occurred in 1993 and along a surface at or close to that of the first phase of the event, and that the factor of safety was at or near 1; in other words that the failure was in geological terms imminent, although that would not have enabled its actual date to be predicted to within months or even a few years."
(e) The judge further elucidated the significance of these findings at paragraph 117 where he said:
"A scheme confined to the area of the 1982 and 1986 slips gave no latitude for any reduction in the overall steepness of the slope. I accept the evidence of Mr Chamley and Professor Denness, however, that had the investigations and analyses described in paragraphs 112 and 113 above been carried out it would have become clear that to ensure long-term stability a more far-reaching scheme was needed, involving a flattening of the slope and consequentially a cutting back of the brow so as to remove part of the lawn of 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:
"The design made no attempt to lower the groundwater level, an objective which was rightly central to the GEN report and the importance and significance of which should have been apparent to 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."
It is important to note, however, and I do so at this stage, that this negligence was not causative of the loss. At paragraph 118 the judge said:
"Had these errors alone been corrected there would still have been only a scheme confined to the area of the 1982 and 1986 slips, which on the Plaintiffs' own case would not have been adequate, so causation would have been lacking."
25. It is apparent, therefore, that in order to ascertain the full extent of the hazard and enable remedial works to be carried out which would protect the Claimants in the long term, a two-stage investigation was necessary as described in paragraph 24(c) and (d).
The Appellant's submissions
26. Mr Stow makes the following submissions on behalf of 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.
(b) If the proposition in (a) is wrong, the judge's finding that 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.
(c) Where, in the authorities to which I shall come, the expression is used that the duty arises if the Defendant knew or ought to have known, the concept `ought to have known' is confined to a situation where the defect giving rise to the hazard is patent and can be observed by a reasonable landowner, or his responsible servant, exercising reasonable care in the management of his estate. He must have the means of knowledge, but he is not required to do extensive investigations either by himself or experts. This was not a case where Scarborough ought to have known of the hazard to the Claimants.
The Law
27. Does the principle enunciated in Leakey's case apply to cases of failure of support by the servient tenement to the land of the dominant tenement where there has been no withdrawal of support but mere omission? A number of cases at first instance established the rule that while the dominant tenement had a right of support from the land of the servient tenement, the owner of the servient tenement was only liable if he did something to withdraw support. There was no positive duty to provide support. (See Sack 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:
"The nature of the right of support is not open to dispute. The owner of the servient tenement is under no obligation to repair that part of his building which provides support for his neighbour. He can let it fall into decay. If it does so, and support is removed, the owner of the dominant tenement has no cause for complaint. On the other hand, the owner of the dominant tenement is not bound to sit by and watch the gradual deterioration of the support constituted by his neighbour's building. He is entitled to enter and take the necessary steps to ensure that the support continues by effecting repairs, and so forth, to the part of the building which gives the support. But what the owner of the servient tenement is not entitled to do is, by an act of his own, to remove the support without providing an equivalent. There is the qualification upon his ownership of his own building that he is bound to deal with it, and can only deal with it, subject to the rights in it which are vested in his neighbour."
The dictum was obiter; but there is little doubt that it represented the law as it was understood. It is worth noting that if the owner of the servient tenement withdrew support he was liable irrespective of negligence.
28. To a similar effect were the cases of Greenwell 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.
29. Originally in private nuisance only the person who by himself or his servant or agent created the nuisance on his land which interfered with the use and enjoyment of his neighbour's land was liable. The position was different in public nuisances where once the existence of a nuisance on his land comes to the knowledge of the occupier it is his duty to abate it or endeavour to do so. (See Barker 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:
"When a nuisance has been created by the act of a trespasser, or otherwise without the act, authority, or permission of the occupier, the occupier is not responsible for that nuisance unless, with knowledge or means of knowledge of its existence, he suffers it to continue without taking reasonably prompt and efficient means for its abatement."
And a little later he said:
"The landowner in possession is liable for a nuisance created by a trespasser, which causes damage to others, if he could, after he knows or ought to have known of it, prevent by reasonable care its spreading."
30. In Sedleigh-Denfield 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.
31. In Goldman 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:
"The fallacy of this argument is that, as already explained, the basis of the occupier's liability lies not in the use of his land: in the absence of "adoption" there is no such use; but in the neglect of action in the face of something which may damage his neighbour. To this, the suggested distinction is irrelevant."
32. In both Sedleigh-Denfield's case and Goldman's case the hazard arose entirely on the Defendant's land; the Plaintiff had no knowledge of it before the damage was done; the Defendant was liable for failing to take steps to stop the spread or escape to the Plaintiff's land, steps which he could reasonably take.
33. In Leakey 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.
34. Megaw LJ, with whose judgment Cumming-Bruce LJ agreed, said at p523F:
"If, as a result of the working of the forces of nature, there is, poised above my land, or above my house, a boulder or a rotten tree, which is liable to fall at any moment of the day or night, perhaps destroying my house, and perhaps killing or injuring me or members of my family, am I without remedy? (Of course the standard of care required may be much higher where there is risk of life or limb as contrasted with mere risk to property, but can it be said that the duty exists in the one case and not in the other?). Must I, in such a case, if my protests to my neighbour go unheeded, sit and wait and hope that the worst will not befall? If it is said that I have in such circumstances a remedy of going on my neighbour's land to abate the nuisance, that would, or might, be an unsatisfactory remedy. But in any event, if there were such a right of abatement, it would, as counsel for the Plaintiffs rightly contended, be because my neighbour owed me a duty. There is, I think, ample authority that, if I have a right of abatement, I have also a remedy in damages if the nuisance remains unabated and causes me damage or personal injury. That is what Scrutton LJ said in the Job Edwards case [1924] 1 KB 341, 359, with particular reference to Attorney-General 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."
35. The support cases which I have referred to in paragraph 27 were not cited in Leakey's case. Mr Stow submits that the Court of Appeal, in that case, cannot have intended to modify the effect of the decisions without even adverting to them. This seems to be the 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.
36. There have been two cases since Leakey where the courts have applied the principles in that case to claim for loss of support. The first is Bradburn 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.
37. The second case is Bar Gur 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:
"The judge rightly recognised that in the light of Leakey's case that statement needs to be qualified and is no longer good law."
There is no further discussion of the matter. It is clear that both Evans LJ and I proceeded on the basis that Leakey applied and had we thought that the wall constituted a nuisance, we would have dismissed the appeal.
38. It may be doubted whether we had full argument on the point since the Appellant was in person. But the judgments were reserved and it is clear from Dillon LJ's judgment that we must have had in mind the law as stated in Bond. I cannot accept Mr Stow's submission that both Evans LJ and I might have distinguished Leakey, but did not do so because we decided the case on the facts. That being so, the decision is binding upon us; Mr Stow does not submit it was per incuriam, though he reserved the right to argue elsewhere that Leakey's case was wrongly decided, and it follows that he would make the same reservation with regard to Bar Gur's case. In any event, for reasons which I have given, I do not think there is any difference in principle between a danger due to lack of support and danger due to escape or encroachment of a noxious thing so far as the Sedleigh-Denfield / Leakey principle is concerned. I therefore reject Mr Stow's first submission.
The extent of the Defendant's knowledge
39. In order to give rise to a measured duty of care, the Defendant must know or be presumed to know of the defect or condition giving rise to the hazard and must, as a reasonable man, foresee that the defect or condition will, if not remedied, cause damage to the Claimant's land. In Goldman, Leakey, Bradburn and Bar Gur the Defendant had actual knowledge of the defect or condition giving rise to the hazard or alleged hazard. In Sedleigh-Denfield the Defendant's responsible servant knew. In each case it was reasonably foreseeable that damage would occur to the Plaintiff's land if nothing was done.
40. What then is meant by presumed knowledge or as the expression is sometimes used `ought to know'. In Sedleigh-Denfield Viscount Maugham said at p887:
"All that is necessary in such a case is to show that the owner or occupier of the land with such a possible cause of nuisance upon it knows or must be taken to know of it. An absentee owner or an occupier oblivious of what is happening under his eyes is in no better position than the man who looks after his property including such necessary adjuncts to it in such a case as we are considering as its hedges and ditches."
At p893 he approved Salmond's reference, adopted by Scrutton LJ of the occupier "with knowledge or the means of knowledge." And in his statement of principle at p894 he used the expression "knowledge or presumed knowledge." Lord Romer agreed with this formulation (see p913). Lord Atkin considered that the Defendant's "by their responsible agents had knowledge both of the erection of the pipe and a reasonable expectation that it might be obstructed and the result of such obstruction" (see p896). Lord Wright said, "If he is to be liable a further consideration is necessary, namely that he had the knowledge or means of knowledge, that he knew or should have known of the nuisance in time to correct it and obviate its mischievous effects." (See p904). I do not consider that Lord Wright was intending to extend or widen the scope beyond what the other Lords indicated. Finally Lord Parker said at p917:
"The Respondents at least acquired knowledge of the existence of the pipe and the position of the grid after it had been erected even if they did not acquire that knowledge at the time of its erection in 1934. Their servants knew, and they certainly ought to have known, immediately after the insertion of the pipe what the position of affairs was."
41. In Leakey's case Megaw LJ said at p518D:
"So long as the defect remains "latent" there is no duty on the occupier, whether the defect has been caused by a trespasser or by nature. Equally, once the latent becomes patent, a duty will arise, whether the causative agent of the defect is man or nature. But the mere fact that there is a duty does not necessarily mean that inaction constitutes a breach of the duty."
In that passage Megaw LJ referred to the defect. At p522D he said:
"....the duty arising from a nuisance which is not brought about by human agency does not arise unless and until the defendant has, or ought to have had, knowledge of the existence of the defect and the danger thereby created."
Here the Lord Justice is referring both to the defect and the danger arising from it. And again at p524G when discussing the scope of the duty he posed this question:
"Was there sufficient time for preventive action to have been taken, by persons acting reasonably in relation to the known risk, between the time when it became known to, or should have been realised by, the defendant, and the time when the damage occurred?"
Here Megaw LJ refers to the risk or the danger.
42. The duty arises when the defect is known and the hazard or danger to the Claimants' land is reasonably foreseeable, that is to say it is a danger which a reasonable man with knowledge of the defect should have foreseen as likely to eventuate in the reasonably near future. It is the existence of the defect coupled with the danger that constitutes the nuisance; it is knowledge or presumed knowledge of the nuisance that involves liability for continuing it when it could reasonably be abated. Mr Stow submits that the defect must be patent and not latent; that is to say that it is a defect which can be observed; it is no answer for the landowner to say that he did not observe it, if a responsible servant did so; or if as a reasonable landowner he, or the person to whom he entrusted the responsibility of looking after the land, should have seen it. But if the defect is latent, the landowner or occupier is not to be held liable simply because, if he had made further investigation, he would have discovered it. I accept Mr Stow's submission; in my judgment that is what is meant by the expression `knowledge or presumed knowledge'.
43. Mr Stow further submits that although 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.
44. The critical question is whether these distinctions affect 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.
45. Mr Symons submits that that principle is applicable here; provided 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:
"My Lords, in my 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."...."
In my judgment this does not assist the Claimants in this case. It was an application of the ordinary rule which I have referred to in the previous paragraph; the unpredictable nature of the accident did not make the damage too remote.
46. But the present is a case of non-feasance: 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:
"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. 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."
47. In the passage which I have underlined Lord Wilberforce refers expressly only to the existence of the duty; but the passage occurs in the middle of that part of the judgment dealing with the scope of the duty. It seems to me that Lord Wilberforce could equally have said "existence and scope of the duty", especially as ability to abate it is related to the subjective characteristics of the Defendant
48. In Leakey's case Megaw LJ dealt with the scope of the duty at p524E:
"The duty is a duty to do that which is reasonable in all the circumstances, and no more than what, if anything, is reasonable, to prevent or minimise the known risk of damage or injury to one's neighbour or to his property. The considerations with which the law is familiar are all to be taken into account in deciding whether there had been a breach of duty, and, if so, what that breach is, and whether it is causative of the damage in respect of which the claim is made. Thus, there will fall to be considered the extent of the risk; what, so far as reasonably can be foreseen, are the chances that anything untoward will happen or that any damage will be caused? What is to be foreseen as to the possible extent of the damage if the risk becomes a reality? Is it practicable to prevent, or to minimise, the happening of any damage? If it is practicable, how simple or how difficult are the measures which could be taken, how much and how lengthy work do they involve, and what is the probable cost of such work? Was there sufficient time for preventive action to have been taken, by persons acting reasonably in relation to the known risk, between the time when it became known to, or should have been realised by, the defendant, and the time when the damage occurred? Factors such as these, so far as they apply in a particular case, fall to be weighed in deciding whether the defendant's duty of care requires, or required, him to do anything, and, if so, what."
49. In both these passages concentration tends to be upon the ease and expense of abatement and the ability of the Defendant to achieve it. But in the passage in Megaw LJ's judgment which I have underlined, the extent of the foreseen damage is said to be a relevant consideration. Moreover, I do not think either judge was purporting to give an exhaustive list of relevant considerations. While I agree with Megaw LJ (see p524B) that it would be a grievous blot on our law if there was no liability on the Defendants in those cases, I do not think justice requires that a Defendant should be held liable for damage which, albeit of the same type, was 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.
50. It is clear that Shaw LJ had considerable reservations about the extension of the law as exemplified by Goldman's case. He said at p528E:
"There are, however, so it seems to me, powerful arguments the other way. Why should a nuisance which has its origin in some natural phenomenon and which manifests itself without any human intervention cast a liability upon a person who has no other connection with that nuisance than the title to the land on which it chances to originate? This 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?
The old common law duty of a landowner on whose land there arose a nuisance from natural causes only, without any human intervention, was to afford a neighbour whose property or person was threatened by the nuisance a reasonable opportunity to abate that nuisance. This entailed (1) that the landowner should on becoming aware of the nuisance give reasonable warning of it to his neighbour; (2) that the landowner should give to the neighbour such access to the land as was reasonably requisite to enable him to abate the nuisance.
The principle was relatively clear in its application and served in broad terms to do justice between the parties concerned. The development of "the good neighbour" concept has however blurred the definition of rights and liabilities between persons who stand in such a relationship as may involve them in reciprocal rights and liabilities"
He also regarded Goldman's case as the climax of the development of the law in this field (see p529E) and evidently must have been unwilling to extend it further. If the scope of the duty is linked to an obligation to take care to avoid damage which is reasonably foreseeable, then the Defendant is only liable to that extent.
51. The cases of Goldman and Leakey were decided before the decision of the House of Lords in Caparo Industries Ltd 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.
52. The judge did not address the question of the extent of the damage that could reasonably have been foreseen other than in the respects which I have indicated, namely that 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.
53. In these circumstances he held, as I understand it, that 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).
54. For the reasons I have given I conclude that the scope of 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.
55. Taking the first approach the question is, what was the extent of the damage to the Claimants' land which 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. .
56. I turn to consider the second approach referred to in paragraph 54. In the course of argument some of the problems that are likely to arise in considering the measured duty of care were canvassed. In particular, what should be the position if both parties knew of the defect and the potential risk on their respective land? Mr Symons submitted that each would owe a duty of care to the other and if together they failed to take effective remedial action, 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.
57. It might be thought in a situation like the present, where the defect existed on both parties' land, where the 1982 and 1986 slips together with the 1989 remedial works were plain for everyone to see, that the Claimants were in as good a position to assess the problem as 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.
58. I think it could well be argued that on the facts of this case 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.
59. Finally I would wish to pay tribute to the clear and careful judgment of the learned judge. Reading paragraphs 45 to 47 of his judgment, it appears to me that he was not altogether at ease with the decision which he felt, as a matter of law, he should reach.
60. For these reasons I would allow this appeal and enter judgment for the Defendants.
LORD JUSTICE SCHIEMANN: I agree
LORD JUSTICE TUCKEY: I also agree
Hearing against GEN- not costs paid to GEN or costs of interlocutories re: joining them. Costs allowed insofar as trail lengthened by proceedings against GEN. Leave to appeal was refused. Order does not form part of the approved judgment.