A1/00/2210
Neutral Citation Number: [2001] EWCA Civ 109
IN THE SUPREME COURT OF JUDICATURE
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)
                   Royal Courts of Justice
                                    Strand
                                    London WC2
 
                          Monday, 22nd January 2001
B e f o r e :

LORD JUSTICE LAWS
LORD JUSTICE BUXTON
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(1) LESLIE ROBERTS
(2) RITA ROBERTS
Appellants
‑ v ‑
(1) ROY BETTANY
(2) JENNIFER ANN BETTANY
Respondents
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 (Computer Aided Transcript of the Stenograph Notes of Smith Bernal Reporting Limited
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MR. S. BOOTH (instructed by Messrs Norman Jones Grayston, Birkenhead, Merseyside) appeared on behalf of the Appellants/Claimants.
MR. M. WOOD (instructed by Messrs Dipp Lupton Alsop, Liverpool) appeared on behalf of the Respondents/Defendants.
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J U D G M E N T
1.	LORD JUSTICE BUXTON: The proceedings in which this appeal arises concern a dispute between two neighbours in an area of North Wales. The claimants, the appellants in this appeal, are Mr. and Mrs Roberts who occupy a property known as Sea Haze. Their neighbours are the defendants, Mr. and Bettany, who occupy and own a property called Grove House.
2.	It will be convenient first to set out the background facts. Although there appear to have been a series of property transactions between the parties at a stage before the matters of which complaint is made arose, it will be convenient to start in 1990 when the defendants purchased Grove House. At the back of Grove House there is an embankment which in fact forms part of a colliery spoil heap, upon which the claimants’ property, Sea Haze, is built. In September 1991 the defendants employed a gardener to clear and put into order part of the embankment on their property, in the course of which a number of bonfires were lit. Some two or three months thereafter fires were discovered underground and the Fire Brigade intervened, followed by inspection by representatives of British Coal.
3.	In March 1992 the local authority, the Delyn Borough Council (“Delyn”) served an abatement notice requiring the underground fire to be extinguished within 35 days, which they followed with a further notice. Quite what happened in response to that notice is not clear. I think probably nothing. In the event, in May 1992 Delyn itself intervened in order to undertake works to excavate the embankment and, having excavated it, fill the area from which the burning material had been removed with inert material. It is not disputed that, in so acting, Delyn were acting properly within the ambit of their statutory powers. Having done that and successfully extinguished the fire, Delyn then reinstated the properties and the area of the embankment.
4.	Not long after that, in September 1992, cracking of garden walls appeared in the claimants’ property and further damage to the property by ground movement was thereafter identified. It is in respect of the damage to their property from that movement of the ground that the claimants bring their action.
5.	The proceedings were not issued, however, until August 1997. After that there was significant delay, it would  appear principally on the part of the claimants. The judge who had conduct of the proceedings in the High Court in Liverpool, His Honour Judge MacKay, made various orders as to the production of evidence, both as to liability and as to damage, not all of which appear to have been complied with by the claimants. In the event, an application was taken out by the defendants in March 2000 for the proceedings in effect to be struck out. That was not precisely the nature of the application but it is accepted before us that that was its substance. That application was successful on the basis, as I shall explain in more detail shortly, that the action on the state of the evidence as it then was before the judge, the judge having determined that no further evidence should be permitted to be adduced, was bound to fail.
6.	With that introduction, it is necessary to turn to the terms of the action and the grounds upon which the judge proceeded. The claimants’ case is most conveniently summarised in one sentence of a reply to a request for further and better particulars, in which they were asked, effectively, to state the nature of their case. They replied as follows:
“It is the plaintiffs’ case that the serious subsidence was caused by the excavation works which were a necessary consequence of the underground fires.”
7.	That is to say, the claimants said that the subsidence had not been immediately caused by the fire but it had been caused by the work done by Delyn and Delyn had been obliged so to work by the need that they or somebody should extinguish the underground fires. For the purposes of this appeal, but not otherwise, it is accepted that the underground fires were caused by the defendants or at least by someone for whom they were responsible. The issue, therefore, is whether the subsidence can be attributed in law to those fires.
8.	The defendants relied before the judge upon expert evidence given by a Mr. Crowther. The judge held that Mr. Crowther’s evidence had not been challenged by the claimants and further held that, in the light of the history of the matter, it was not open, at that stage of the process before him, for further evidence to be called seeking to rebut and differ from what Mr. Crowther said. For my part, I consider, in the light of the history which I have reviewed, that the judge was entitled to shut out further evidence at that stage. Mr. Crowther concluded in his summary of his report as follows:
“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...”
9.	Then Mr Crowther goes on to say how in his view the work ought to have been done by Delyn so that the settlement would not have occurred.
10.	In paragraph 5 of his report, headed “Criticism of Works Undertaken by the Council”, he explains in more detail how in his view the matter ought to have been done, and says in paragraph 5.2.5  that the use of clay had caused  the ground to be unstable and therefore vulnerable to excessive movement according to weather conditions. He went on to say:
“In my opinion this situation was avoidable such that the losses in issue would not have been incurred.” 
11.	Based upon Mr. Crowther’s report the defendants advance the defence of novus actus interveniens; that is to say, they say that the cause of or attribution of the damage was attributable to Delyn, and that what Delyn did or did not do was sufficient in law to break the chain of causation between the fire which set these events in motion and the actual damage suffered; that is to say, the cracking of and subsidence of the claimants’ property.
12.	Although the doctrine of novus actus and the defence of novus actus are sometimes talked of as and presented as simply a question of causation, which at first sight might appear to be an issue of fact, it is well recognized that the matter is more complex than that. The issue is one of law, whereby the court has to be satisfied that the acts of the third party were sufficient as a matter of law to exculpate the defendants from liability for the particular result,  proximate or distant though it might have been, of his negligent act. The judge held that that condition was satisfied in this case. It is necessary to quote a number of passages in his judgment. At page 3G he said this:
“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.”
13.	And then at page 5A:
“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.”
14.	And then at page 5D:
“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.” 
15.	And then at page 5H: 
“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.”
16.	I have to say, with respect, that I do not think that the judge’s approach to this question was an adequate one. I do not know what authorities were directly put to him on this application but he does not refer to any of the considerable amount of available learning and authority on the doctrine of novus actus interveniens. As he describes the matter, it seems to me that he comes close to saying that any incompetent intervention by a third party will suffice to break the chain of causation or, alternatively, will suffice for, indeed will necessarily fulfil, the doctrine of novus actus. I also have to say that, in his moderate and concise submissions before us, Mr. Wood for the respondent, equally it seemed to me, came close to advancing that proposition.
17.	That such an approach is not one that is correct in law can be seen by reference to works of authority. I will cite some paragraphs from the 18th edition of Clerk & Lindsell on Tort. I cite the book without going to the underlying authorities because, having scrutinized the passages carefully, I am satisfied that they are borne out by the authorities to which they refer. First of all, at paragraph 2‑41 the learned authors say this:
“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.’” 
18.	For that internal quotation the authority is cited of Lord Simmons in Hogan v Bentinck West Hartley Collieries (Owners) Limited [1949] 1 All ER 588, 593. The quotation from Clerk & Lindsell continues:
“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?”
19.	Then, dealing with the nature or quality of the conduct of a third party, at paragraph 2‑45 of the report the learned authors say this:
“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.”
20.	The learned authors go on to emphasize that it is not only deliberate or wholly unreasonable conduct that can constitute a novus actus. What is necessary, however, is to look carefully at the nature of the intervening conduct in the context in particular of the original act of negligence.
21.	A further observation that I have found of assistance is contained in paragraph 2‑24 of the 17th edition of Clerk & Lindsell, which was the edition then current when the authorities now before the court were made up. This particular piece of guidance does not seem to be repeated in the 18th edition of Clerk & Lindsell: which, for my part, I feel to be a pity, because it seems to me to be cogent. The authors of the 17th edition said this:
“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.”
22.	The question that is posed by Clerk & Lindsell was in fact the question posed in the judgment in the Queen’s Bench Divisional Court of Cooke J, a judgment agreed by the other two members of the court, Lord Parker CJ and Melford‑Stephenson J, in the case of Impress (Worcester) Ltd v Rees (1971) 115 S.J. 245.
23.	Bearing in mind that guidance, the relevant factors in this case seem to me to be as follows. First of all, the defendants had created a situation of fire ‑ what is more, underground fire, a threatening and unstable condition that plainly and urgently needed intervention to correct it. Secondly, the accepted way of dealing with that fire was to dig out the combustible material. That having been done, it was necessary, and plainly necessary, for infilling to take place in order to avoid a contingent hazard to the claimants’ property:  which, as Mr Crowther’s report said, was by the act of digging out exposed to lack of support. The situation was therefore an urgent one and one that required intervention. As Mr. Wood stressed, the report of Mr. Crowther demonstrates, or is to be taken to demonstrate, that Delyn could have acted in a way that avoided this particular damage. It was not suggested by Mr. Crowther, and was not held by the judge, that Delyn  had actually been negligent. Indeed, the passage that I quoted from his judgment establishes that he would have come to the conclusion that he did, even if Delyn had been positively found merely to have been incompetent or ill‑advised or ill‑judged, rather than negligent. This combination of circumstances falls far short of what is required in law to constitute a successful defence of novus actus interveniens. To some extent that is a matter of impression but only to some extent. What has to be demonstrated, in my judgement, is that the intervention has, as Cooke J said, turned the negligent act of the defendant into a matter of surrounding circumstances. That is plainly not this case. What was done was in direct response to a hazardous situation created by the defendants. It was at their peril that an intervener might not act with full competence and might cause some further or different injury. That is apparently, on the evidence before the judge, what happened in this case, but it does not exculpate in law, in the circumstances of this case, the defendants from the consequences of their original act of negligence. The point is a short one. But I am satisfied that the judge approached it too shortly and approached it on a too mechanistic and narrow view of the doctrine of novus actus. This was not an appropriate basis upon which to  strike out this action and it should not have been struck out. I therefore, for my part, would allow the appeal and reverse the decision of the judge below.
24.	The question then arises as to what should happen now. We were asked to give directions as to the adduction of further evidence. For my part, I do not think that it would be appropriate for this court to intervene in that matter. The case must proceed to trial and it will be for the judge who has the conduct of that trial to determine, in the light of the observations of this court about the law, how that trial should proceed. I, for my part, and subject to any view that my Lord may take, would urge the parties, more particularly the claimants, to seek an early appointment for directions so that this matter, which has hung around for far too long, may be properly tried and determined.
25.	LORD JUSTICE LAWS: I agree that the appeal should be allowed for the reasons given by my Lord. I also agree that in the circumstances of the case we should not give directions for the future conduct of the action. The parties should seek an appropriate hearing as soon as may be.
Order:  Appeal allowed with costs here and below.
(Order not part of the judgment of the court)