COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
(His Honour Judge MacKay)
Monday, 22nd January 2001
B e f o r e :
LORD JUSTICE BUXTON
|(1) LESLIE ROBERTS|
|(2) RITA ROBERTS|
|- v -|
|(1) ROY BETTANY|
|(2) JENNIFER ANN BETTANY|
190 Fleet Street, London EC4A 2AG
Telephone No: 0171-421 4040
Fax No: 0171-831 8838
Official Shorthand Writers to the Court)
MR. M. WOOD (instructed by Messrs Dipp Lupton Alsop, Liverpool) appeared on behalf of the Respondents/Defendants.
Crown Copyright ©
"It is the plaintiffs' case that the serious subsidence was caused by the excavation works which were a necessary consequence of the underground fires."
"I have concluded that the excessive settlements experienced have been the direct result of the use of clay backfill, inadequately compacted, to reinstate the whole of the slope.
This and the resulting costs could have been avoided..."
"In my opinion this situation was avoidable such that the losses in issue would not have been incurred."
"It may well be that the works were defective clearly or defective marginally or subsidence was inevitable to a certain degree but the force of Mr Crowther's report is that the damage of which the claimants make complaint was caused by the excessive subsidence of the infill which was caused by the fault of the local authority in either not using the correct materials to infill, because Mr Crowther agrees that excavation infill was the appropriate remedy for the situation that confronted the local authority, or failing to compact that infill to such an extent that excessive subsidence would not be caused."
"What is the substance of the defendants' contention? The substance is that the damage was caused by the failure of the infill and that while the infill may have been necessary and the excavation may have been necessary, there is, to use an old phrase a novus actus interveniens or a nova causa interveniens and it cannot be blamed on the fire."
"I have come to the conclusion that if damage followed the infill and the infill was not adequate, either by the negligence of the local authority or by the plain fact of the case without negligence because I am not involved in any claim against the local authority, then the liability on the part of the defendants who caused the situation that had to be remedied ends."
"We are concerned with damage that resulted from the professional activities of a local authority and its professional subordinates or persons with whom it was in contract in remedying a situation. That situation may have been brought to book by the defendants and they are to be blamed for creating that situation perhaps if the court were to find them to be the author of the fire underneath the ground but in excavating and in infilling, the purpose of that activity was to make it safe, to make it as good - not the same as but as good as - the old material on the embankment. If that material breaks down and if there is settlement or subsidence and if damage is caused then one cannot blame the author of the original cause of the circumstances which brought about the infill which later failed."
"The question of the effect of a novus actus 'can only be answered on a consideration of all the circumstances and, in particular, the quality of that later act or event.'"
"Four issues need to be addressed. Was the intervening conduct of the third party such as to render the original wrongdoing merely a part of the history of the events? Was the third party's conduct either deliberate or wholly unreasonable? Was the intervention foreseeable? Is the conduct of the third party wholly independent of the defendant, ie does the defendant owe the claimant any responsibility for the conduct of that intervening third party?"
"The more unreasonable the conduct of the third party, the more likely that conduct is to constitute a novus actus. A defendant creating an obstruction on the road likely to trigger further accidents may normally expect to bear responsibility for the further consequences of his initial negligence. If a subsequent collision is caused by outright recklessness, or total bungling by those involved in dealing with the first incident, the chain of causation may be broken."
"Whatever its form the novus actus must constitute an event of such impact that it rightly obliterates the wrongdoing of the defendant. The question which ought to be asked is 'whether that intervening cause was of so powerful a nature that the conduct of the plaintiffs was not a cause at all but was merely a part of the surrounding circumstances."