England and Wales High Court (Queen's Bench Division) Decisions

Hallbeck Hall Hotel Limited (now Dawntime Limited), English Rose Hotels (Yorkshire) Limited (formerly Imfoss Limited and also formerly English Rose Hotels Limited), Scarborough Borough Council [1997] EWHC QB 363 (2nd October, 1997)

 

IN THE HIGH COURT OF JUSTICE 1995 ORB 561 QUEEN'S BENCH DIVISION

OFFICIAL REFEREES' BUSINESS

HIS HONOUR JUDGE HICKS QC

 

BETWEEN

HOLBECK HALL HOTEL LIMITED

(now known as Dawntime Limited)

First Plaintiff

- and -

 

ENGLISH ROSE HOTELS (YORKSHIRE) LIMITED

(formerly Imfoss Limited

and also formerly English Rose Hotels Limited)

Second Plaintiff

- and -

 

SCARBOROUGH BOROUGH COUNCIL

Defendant

 

 

 

1995 ORB 1193

 

AND BETWEEN

SCARBOROUGH BOROUGH COUNCIL

Plaintiff

- and -

 

GEOTECHNICAL ENGINEERING (NORTHERN) LIMITED

Defendant

 

 

 

JUDGMENT

 

 

Introduction

 

1. Holbeck Hall Hotel was a four-star hotel on what appeared to be an ideal site in the South Cliff area of Scarborough. It stood some 65 metres above sea level, with panoramic views of the centre of the town to the north, the coastline to the south and the North Sea to the east. (At this point the coastline in fact runs more nearly north-west to south-east, but I shall in this judgment follow the convention evident in the title deeds, and tacitly adopted during the trial, of treating it as being aligned north to south.) The building was separated by an extensive lawn from the edge of what was described as a "cliff", but would have appeared to the uninstructed eye to be a comparatively gentle grassy slope, criss-crossed with public paths (which included the Cleveland Way), running down to a much steeper face in the final 12 metres of the drop to sea level, where there were stone-built upper and lower promenades.

 

2. On the evening of Thursday 3 June 1993, however, there was a major slip of substantially the whole depth of this apparently unassuming slope, the head of the slip crossing the hotel's rose garden at the brow of the slope, just outside the front edge of the lawn. In the early morning of Friday 4 June that was followed by a second stage which removed some two thirds of the lawn. By 7.45 am guests and staff were being evacuated, and in the event no-one was hurt. That afternoon a third stage took the failure back to the main front wall of the building, removing the conservatory, and on Sunday 6 June the fourth and final stage occurred, involving almost the entire seaward wing of the main building. The remainder was unsafe and unusable and had to be demolished. The hotel ceased to exist as a building and as a business.

 

3. These actions are concerned with the consequences of that disaster. The owners and lessees of the land and buildings and the proprietors of the hotel business sue Scarborough Borough Council ("Scarborough") for damages, not in its capacity as local authority but as owner and occupier of the land between the hotel grounds and the sea. Scarborough, in turn, sues Geotechnical Engineering (Northern) Limited ("GEN"), a site investigation company which had investigated and reported on a part of the site of the slip in 1984 and 1985.

 

 

Geology and history

 

4. 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.

 

5. 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.

6. 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 these actions are 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.

 

7. There was much evidence from 1893 onwards of slips and collapses consistent with the above analysis along the stretch of coastline which included the grounds of Holbeck Hall. It is not necessary for present puposes to rehearse them in detail. Many were on a much smaller scale than that of 1993, including all of those which impinged on the site of the 1993 slip itself, but there were two, not far away, which seem to have been of comparable magnitude. Scarborough (I assume as owner, since no other capacity was suggested) carried out drainage and other remedial works in many instances, if not all, and I must consider the nature of some of that work later, as I must the detailed history of the site itself from 1982 onwards.

 

8. The other aspect of the historical background to be mentioned at this stage concerns the title to the properties. The whole of what were in 1993 the grounds of the hotel and the land between those grounds and the sea, extending in all to about nine acres, was conveyed on sale to George Alderson Smith by an Indenture dated 28 March 1878, and in about 1880 he erected the building which became the hotel. On 1 February 1887 he conveyed on sale the northern part (about half) of the "undercliff" forming the sloping eastern side of his property to the Borough of Scarborough. That conveyance contained no provisions relevant to the issues in this action. On 2 August 1895 he conveyed to the Borough the remaining (southern) part of the same undercliff in consideration of certain "conditions restrictions and obligations", which included covenants for the maintenance of the undercliff on which the Plaintiffs rely in this action. The freehold estate in the remainder of his land passed in due course to the First Plaintiff, which on 8 July 1980 granted to the Second Plaintiff a lease of the land and buildings for 21 years from 24 June 1979, under which the Second Plaintiff was at the time of the events of June 1993 in possession of the hotel building and grounds and was carrying on there the business of the hotel.

 

 

Soil mechanics

 

9. This is not the occasion for an extended exposition of the science of soil mechanics, nor am I fitted to give one, but certain basic concepts will frequently recur and need some explanation.

 

10. A slip is a shearing failure in the soil and therefore occurs when the shearing force operating on it exceeds its shear strength. The shear strength of a soil t (tau) is expressed in terms of two properties, cohesion and internal friction; for present purposes all soils can be taken to possess some degree of internal friction, but not all have any cohesion.

 

11. For any particular sample of soil cohesion (c) is a constant, not dependent on the load or pressure. It typically has a non-zero value in intact clays but is zero in non-clay soils or at surfaces which have already sheared.

 

12. The strength due to internal friction, on the other hand, is proportional to the normal load s (sigma) - "normal", of course, in the sense of "perpendicular to the relevant plane"; it is conventionally expressed as the load multiplied by the tangent of an angle f (phi) which is characteristic of the soil in question, giving s.tanf.

 

13. If water is present the total load is in part borne by the pore pressure of the groundwater (u) and in part by the pressure between adjoining grains of soil. Only the latter component makes an "effective" contribution to shear strength and it is therefore known as the effective load s' (sigma dash), so that s' = s - u. That is why, as noted at the end of paragraph 6 above, drained soil is generally stronger than undrained and can sustain a steeper slope.

 

14. It is in general the effective rather than the total values (in the above sense) of all the parameters which are the more relevant ones, and their symbols therefore normally appear with the dash superscript (') denoting "effective".

 

15. The general equation linking shear strength with the two characteristic soil properties, cohesion and internal friction, is therefore t' = c' + s'tanf'.

 

16. The values of c' and f' available in intact soil before failure are called "peak" values. Partial or total failure at any location reduces the values there towards or to a "residual" level, denoted by the subscript r (_r). The residual value is generally zero for c', so that the general equation simplifies to t'_r = s'tanf'_r.

 

17. Slips occur in many forms but a useful classification, relevant to this case, distinguishes between mudslides, shallow longitudinal slips and rotational or circular slips. In mudslides wet soil behaves during the phase of active movement essentially as a fluid. In the other two cases there is movement at and above a "slip plane", but otherwise the soil retains many of its normal characteristics, subject to the reduction of f' and (if present) c' to residual values at the slip plane and possibly towards them elsewhere above it, as described in paragraph 16 above. In longitudinal slips the slip plane is roughly parallel to the pre-slip surface; in rotational slips it is "circular", in the sense that a vertical section containing the direction of movement is an arc of a circle.

18. Because of their circular section rotational slips are much more accessible to mathematical analysis than others, but that does not entail that they are just convenient figments of the imagination of theoretical soil engineers; there are good physical reasons for their occurrence and they are indeed commonly encountered in practice. (One fact on which all the expert witnesses in this case are agreed is that the first stage of the 1993 collapse at Holbeck was a textbook example of a rotational slip.) The physical reason favouring their occurrence is that such a slip plane enables the moving mass of soil to do so as a whole, with little or no significant inner disturbance.

 

19. One result of the mathematical simplicity of the circle is that if sufficiently representative samples can be obtained and tested to enable reliable values for the effective cohesion and internal friction of the soil under a slope to be obtained it is possible by mathematical analysis, nowadays much facilitated and accelerated by the use of computer programmes, to predict what is the potential slip circle which has the lowest factor of safety and is therefore the most likely to be the seat of a slip (the "critical circle"), and what that factor of safety is, which gives a measure of the likelihood and imminence of such a failure. If the soil is not homogenous that complicates the process, and the complications can become so great as to make it impracticable, but some degree of departure from total homogeneity, such as the existence of two strata with different properties, does not by any means necessarily rule it out.

 

 

The issues.

 

20. The action against Scarborough, as issued and as pleaded down to the opening of the trial, was one by Holbeck Hall Ltd as owner and occupier of the hotel property and proprietor of the hotel business. It became apparent during the cross-examination of the Plaintiff's only factual witness that that company was not in June 1993 in possession of the property nor operating the business, and after an adjournment for some days and some canvassing of the position in court it was agreed that the Second Plaintiff should be joined and the Statement of Claim amended to reflect the true position, as set out in the last sentence of paragraph 8 above. Formal leave for the joinder and amendment was eventually given on the afternoon of the thirteenth day of the trial.

 

21. Although the Amended Statement of Claim now sets out the respective interests of the two Plaintiffs and allocates between them the parts of what was originally a single claim for damages, and although the closing submissions for the Plaintiffs and for Scarborough addressed some of the consequences of the division of estates and interests between the Plaintiffs, I am far from clear that I am in a position to do justice to all those consequences without further assistance. Questions, some of them potentially complex, may arise as to the party or parties to whom duties of the various kinds relied upon are owed and as to the heads and measure of the damages recoverable by each such party upon breach of each of those duties. Only when those questions are answered, by agreement or after further argument, will it be possible to proceed to the issue of quantum proper, as to which I gather that many of the figures, as such, are agreed. There is a discrete question whether the lease to the Second Plaintiff was determined by frustration upon the happening of the 1993 landslip, which has been argued for the Plaintiffs and which may affect other outstanding issues. I shall therefore consider that question so far as I can, but for the rest shall deal with the issues before me as if there were a single plaintiff with both ownership and possession of the property, who was also the proprietor of the business, leaving over those which require that assumption to be abandoned.

 

22. The Plaintiffs' claim against Scarborough is put in three ways:

 

(i) removal of support;

(ii) breach of common-law duty;

(iii) breach of covenant.

 

23. As to (i) the Amended Statement of Claim alleges first a natural right of support, secondly implied reservations of easements of support in the conveyances of 1887 and 1895, thirdly an easement derived from 20 years' enjoyment and a fictional "lost modern grant", and fourthly statutory prescription by 20 or 40 years' enjoyment. Only the first category of right was in the event relied upon, and in my view correctly so.

 

24. As to (ii) the duty relied upon is that of which the existence is said to have been established by the Court of Appeal in Leakey v National Trust [1980] 1 QB 485.

 

25. The covenants relied upon under (iii) are those contained in the 1895 conveyance. Scarborough, in turn, relies upon a proviso to those covenants as excluding liability not only under this head but also under heads (i) and (ii). There is the further issue how any liability or exclusion under these covenants is affected by the fact that they apply only to the southern part of the seat of the slip.

 

26. Scarborough's claim against GEN is entirely derivative, in the sense that the relief claimed is damages or a contribution, amounting in either event to an indemnity against any damages and costs payable by Scarborough to the Plaintiffs. The liability issue is whether GEN was, as Scarborough alleges, in breach of contract or negligent in its investigation and report in 1984 and 1985. In addition to denial of those allegations GEN alleges that Scarborough did not rely or act upon the report, or indeed even read it, but instead designed and executed in 1989 works which were inappropriate and different from those recommended.

 

27. I propose to consider first the law relating to the issues between the Plaintiffs and Scarborough summarised in paragraphs 22 to 25 above, then the facts germane to those issues, then the issues between Scarborough and GEN and finally the frustration point mentioned in paragraph 21 above.

 

 

The law: removal of support

 

28. It is the Plaintiffs' case under head (ii) - breach of common law duty - that in relation to actual or threatened landslips an occupier of land has the same duty of care to his uphill neighbour as that established by the Leakey case in favour of a downhill neighbour. That is a duty which may require the occupier to take positive steps to avert damage to the neighbour, and conversely failure to take such steps may sound in damages. Mr Symons, for the Plaintiffs, nevertheless made it clear that he did not thereby abandon his pleaded claim based on removal of support, in the traditional sense, as a distinct cause of action.

29. This claim has its own distinctive attractions and drawbacks. The first attraction is that the natural right to support is a recognised right and, as Mr Darling for Scarborough accepts, existed here in favour of the Plaintiffs' land, whereas the existence of the Leakey-type duty is contested. The second attraction is that negligence is not a necessary condition for liability, as was expressly held in Humphries v Brogden (1850) 12 QB 739.

 

30. The drawback is that there is no obligation on the part of the servient occupier to take any active steps to maintain support; some positive act amounting to removal of support is required to found liability and failure to act is not enough. The authorities to which I was referred for that proposition (Sack v Jones [1925] Ch 235 and Macpherson v London Passenger Transport Board (1946) 175 LT 279) concern failure to maintain buildings or structures, but it is not in dispute that the same principle applies if the servient land is undeveloped.

 

31. So much is clear. Two questions of law, however, seem to me to be less easily answered. The first concerns what amounts to "removal" of support. Counsel were not able to direct me to any report of a successful claim in which the act complained of was not within the most obvious and literal field of reference of that word. Here the allegation is that support was diminished by work done Scarborough in 1989 to repair earlier slips, and specifically (i) by the distribution of fill laid to restore and regrade the surface as the concluding phase of the work, (ii) by the steepness of the slope of the regraded surface, and (iii) by the alleged obstruction of the natural escape of water from the interior of the slope.

 

32. In principle I see no justification for any kind of mechanical test turning on whether, on balance, more material was subtracted than added. Gale on Easements (16th edition) states that "[the] obligation of the servient owner is .... to refrain from any act which will diminish support" and I accept that as an accurate general formulation of the duty. It follows that if (for example) distribution of fill did in fact diminish support and was causative of the 1993 collapse Scarborough could in principle be liable on this cause of action.

 

33. I can, however, foresee the possibility that obstruction of the escape of water may be an exception. Interference with the passage of underground water in undefined channels is the subject of its own body of authority. It is, for example, not actionable to deprive a neighbour's land of support by extracting such water from beneath one's own property, thereby causing percolation from beneath his (Langbrook Properties Ltd v Surrey County Council [1970] 1 WLR 161), and it might be argued to be anomalous if there were liability in the reverse situation of preventing escape. I am not confident that discussion of this point has reached the stage at which I am in a position to reach a firm conclusion on it and I am therefore open to further submissions if the issue remains a live one on my findings of fact, or if for any other reason I am persuaded that I ought to deal with it.

 

34. The same is true of the question whether, if I hold that a common-law duty of care to maintain support exists, there can still also be an absolute duty not to withdraw or diminish support in the Humphries v Brogden sense.

 

 

The law: common-law duty

 

35. I think it is desirable, before I turn to the authorities,

to consider broader issues of principle and policy, both as to the history of the law of nuisance and as to the interrelation between private duties and natural forces.

 

36. The lack, hitherto, of any unifying rationale of the law of nuisance can readily be understood by reference to its origins in the forms of action. Interference with possession of land, falling short of ouster (for which the remedy was successively the writ of right, the assize of novel disseisin and the action of ejectment), lay either in trespass or on the case - a distinction itself not peculiar to torts affecting land, since it applied also to harm to the plaintiff's person or goods. Trespass lay for direct infringements such as personal entry on or over the land, excavation under it, or the placing or projection of objects on or into it. Indirect harm lay in case.

 

37. Since nuisance could therefore be defined only in a negative way, as actionable harm to the enjoyment of the possession of land not sounding in trespass, it was inherently disparate in nature. Various classifications can be adopted, each with its own merits and demerits. For present purposes it is helpful to identify and compare two categories. It is not necessary for this purpose that they should between them cover the whole field, and probably not the case that they do. They are, first, nuisances which involve the encroachment of harmful substances or conditions from the defendant's land into the plaintiff's, and secondly interference with easements or with analogous natural rights.

 

38. The former category, if broadly defined, covers a great deal of the whole field of nuisance and there is therefore a tendency for principles and rules developed within it to be taken to apply throughout that field. One characteristic of the development, for many years now, of the law in this area has been the increasing influence of concepts derived from the law of negligence. In particular, where nuisances of this type have not been created by the defendant but it is sought to make him answerable for situations originated by others or arising naturally, the potential for liability has been held to exist but its realisation has been dependent upon failure to take such preventive or remedial measures as would have been taken by a reasonable person in the defendant's position and personal circumstances. One way of framing the question posed by the present claim is whether that test should be extended to situations in which the potential harm to the neighbour's enjoyment of possession arises from failure of support rather than encroachment of materials or conditions.

 

39. That question could be answered out of hand by redefining interference with easements and rights of support out of the realm of nuisance altogether, as some textbook writers have done, or by disclaiming any attempt to find a principled reconciliation of the medley of decisions on particular causes of action. I do not find either approach satisfactory. Distinctions should be recognised and effect should be given to them where they rest on differences of importance, but not otherwise. Importance for this purpose may derive from the nature of the land, or from that of human activity, or from the interaction between the two.

 

40. I therefore turn to consider whether differences of that kind exist which justify a distinction between situations in which some positive duty of care, however qualified, is imposed, so that mere failure to fulfil that duty will give rise to liability, from those in which there is no such duty and liability can arise only from active interference with a neighbour's rights.

 

41. Such an enquiry cannot begin ex nihilo; some body of received doctrine must be accepted. Because it has the authority of the House of Lords, which has stood for over fifty years and is nowhere seriously called in question, I start with the proposition that there is a positive duty of the kind described in paragraph 38 above in the case of encroachments on another's land as the result of human activity, past or present, on the defendant's land, even if the defendant was not implicated in the origin of that activity. Is there properly a distinction between that situation and some or all of those in which the origin of the harm to the plaintiff's enjoyment of possession is "natural", in the sense of arising without human intervention?

 

42. In my view there is a significant distinction between natural events which occur randomly and at particular points, such as lightning strikes, and those which are part of a large-scale, long-term process, even if the events arising from that process are individually unpredictable in date, location and scale. Important examples of the second category are the effects of tectonic movement and of the advance and retreat of glaciation, including the initial upthrust and subsequent progressive degradation of mountain chains, the rise and fall of sea levels relative to the land, and the multiple movements of rock and soil at a wide range of scales and intervals which constitute and accompany these phenomena.

 

43. I can well understand that the first category, like the acts of strangers, can suitably be the subject of a duty of care to neighbours of the kind described in paragraphs 38 and 41 above. There will be many occasions when dangers created by events of this kind can readily and without onerous expense be contained, and therefore should be. When that is not so, because of the magnitude of the disaster or the limited resources of the occupier, or for any other reason, the flexible nature of the duty can accommodate the situation.

 

44. In the latter category, however, one is contemplating forces and effects which (with one possible exception, to which I shall return) no presently conceivable level of human technology or resources can halt or, except marginally and temporarily, modify. Nothing within human contemplation can prevent the creation of a new Himalaya if two continental plates collide, a new Laurentian Shield if a mountain system remains long enough subject to erosion, or a new Hawaii over a sub-oceanic hot spot in the earth's mantle. Nor are such changes only on that scale; a significant proportion of the surface of the British Isles is continuously undergoing modifications which in any but the most peripheral and temporary sense will not be averted by human intervention.

 

45. In principle I find very persuasive a policy that responsibility for such events, and adjustment of their financial consequences, are not suitable subjects for private rights and duties (unless, of course, voluntarily assumed). How far they shall be resisted (as for instance by coastal defences or a Thames barrage) or permitted is more suitably a matter for political decision, as are the issues of funding in the former event and compensation in the latter, and their relationship with the availability of privately arranged insurance. That includes effects, if established, which are not purely natural but result from the interaction between natural changes of the kind under consideration (for example glaciation and its reversal) and the unintentional results of human activities which, exceptionally, may be large enough in scale to affect them (for example global warming).

 

46. Such a distinction would, of course, give rise to debateable questions about the category appropriate to particular factual situations, but so do all distinctions. "Duty situations" must end somewhere, and the test suggested above is, to say the least, no more difficult to apply than that which currently prevails in the field of liability for negligently caused economic loss.

 

47. On that basis the common-law duty on the part of Scarborough alleged by the Plaintiffs would not exist. I am not free to reach that conclusion, however, without taking into account the effect of authority.

 

48. The case referred to in paragraph 41 above is Sedleigh-Denfield v O'Callaghan [1940] AC 880. Nothing more need be said about the facts than that they involved the overflow of water from the defendants' property to the plaintiff's as the result of the blockage of an inappropriately gridded culvert, which had been installed by a trespasser without the defendants' consent, but which they had allowed to remain uncorrected for some three years with knowledge of its existence and condition. The House of Lords held them liable. The duty is said to be to take reasonable means to bring such a nuisance to an end (pp 893, 894, 913, 919), but whether that imports the objective standard of care of the tort of negligence or some other standard is not explored. The case is binding on me, but does not concern harm arising from natural causes.

 

49. In Goldman v Hargrave [1967] AC 645 lightning struck a redgum tree on the defendant's land, setting it on fire. The trial judge found that if he had taken reasonable care he could have put the fire out, but he did not, and it spread to the plaintiffs' properties, causing damage there. The Privy Council upheld the decision of the High Court of Australia in the plaintiffs' favour. In delivering the judgment of the Board Lord Wilberforce said:

 

[The textbooks] endorse the development which their Lordships find in the decisions, towards a measured duty of care by occupiers to remove or reduce hazards to their neighbours. (p 662)

 

.... the standard ought to be to require of the occupier what 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 circumstances should, have done more. (p 663)

 

That is of very high persuasive authority, but is not strictly binding. It concerns hazards of natural origin, but within the first of the two categories discussed in paragraphs 42 to 46 above.

 

50. Finally there is Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] 1 QB 485. There the plaintiffs' houses had been built at the foot of a large natural mound on the defendants' land, which by reason of its "geological structure, content and contours .... and the effect thereon of sun, rain, wind, and frost and such-like natural phenomena" (p 508A), and not of any human intervention, had a long history of falls of soil and other material into the plaintiffs' land. In 1976 the plaintiffs drew the defendants' attention to the imminent danger of a further major fall but the defendants disclaimed responsibility. A fall indeed occurred, causing damage to the plaintiffs' property, and they sued the defendants. The Court of Appeal upheld the trial judge's decision in the plaintiffs' favour.

 

51. In his judgment Megaw LJ stated that the main issue in the appeal was whether Goldman v Hargrave accurately stated the law of England (p 508C). He concluded that, as a matter of policy, the law ought to recognise a duty of care of the kind propounded in that case (p 524D). He had earlier rejected a distinction between encroachment by the spread of fire, on the one hand, and by a slip of soil or rock, on the other (p 514C). Shaw LJ, after referring to "powerful arguments the other way" (p 528E) concurred "with diffident reluctance" in the dismissal of the appeal (p 529E). Cumming-Bruce LJ agreed with Megaw LJ.

 

52. It is noteworthy that the discussion in Leakey v National Trust, both in argument and in the judgments, is couched solely in terms of encroachment, so that in relation to soil instability and movement attention is (it would seem unwittingly) directed exclusively to the duties of the uphill occupier, without regard to those of his downhill neighbour, who is cast only in the role of victim. Humphries v Brogden, Sack v Jones and Macpherson v LPTB were not cited, nor apparently any other support case. Megaw LJ justified his refusal to distinguish Goldman v Hargrave by stating that any such distinction "would make the law on this topic incoherent, artificial, uncertain and unpredictable" (p 514D), but did not discuss whether equal or greater anomalies might be created by a distinction between a duty to prevent earth falls from above and the absence of any duty to provide support from below.

 

53. I have given reasons in paragraphs 42 to 46 above for believing that a distinction beween Goldman v Hargrave and Leakey v National Trust would have been neither incoherent nor artificial, and need have been no less certain or predictable than any comparable rule. The anomalies which arise if both the latter case and the Sack v Jones and Macpherson v LPTB line of authority stand are to my mind altogether sharper and more intransigent. There can, of course, be cases, such as that of the toppling of a loose rock from a formation wholly on the higher land, in which one's natural reaction is that if there is to be any responsibility it must lie with the uphill occupier. There may, conversely, although it is difficult to compose such a clearcut example, be cases where the only responsibility (if there is to be any) would be that of the downhill occupier. In such cases it would at least be workable, although doubtfully just, to have different liability rules in the two situations. In many instances, however, and perhaps in most of any magnitude or complexity, it is simply not the case that the seat of the trouble lies wholly on one side of the boundary or the other or, accordingly, that the presence or absence of a duty of care is a question to be raised as to one occupier only. In that situation I find it difficult to see how there can be a potential duty upon one of them but not on the other.

 

54. The facts of the present case furnish an adequate example, although by no means the most striking which could be given. 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; indeed, although the necessary calculations were not put in evidence, my own computations on a simplified model assuming uniform density indicate that on a section of the first phase slip, as conjectured by Mr Chamley, where it penetrated most deeply into the Plaintiffs' land something like 46% of the shearing force would be developed on the Plaintiffs' side of the boundary. (The full computations are available for checking by the parties' experts if desired.) 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 24⁰), 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.

 

55. It is important to exclude from consideration for this purpose two adventitious circumstances which colour the relationship between the present Plaintiffs and Scarborough. In the first place it is not suggested that the Plaintiffs knew or ought to have known of the potential dangers, so it is not, and could not have been, alleged that any potential duty on their part became actual. Secondly the Plaintiffs had a valuable hotel on their land, whereas Scarborough's was undeveloped. The potential anomalies are therefore not realised here. In each respect, however, the position might have been reversed, as in the second it was in Leakey v National Trust. What is, or should be, the overall rule cannot depend on such irrelevancies. If both occupiers are aware of the potential danger, if the threatened movement is of the land of both, if both would have to be involved in any effective steps to avert it, and if one or both would suffer in his enjoyment of possession if it is not averted, how can it be a defensible rule that the uphill occupier is under a duty to act (Leakey v National Trust) but the downhill occupier not (Sack v Jones and Macpherson v LPTB)? Either both should be, or neither.

 

56. Leakey v National Trust is a decision of the Court of Appeal and binding on me. Sack v Jones and Macpherson v LPTB are decisions at first instance and not strictly binding, although the principle for which they are authority has for long been taken to be firmly established. In those circumstances there are three ways in which the law could develop, of which two are open to me and the other only to a court not bound by Leakey v National Trust. One is to accept the policy described in paragraphs 45 to 47 above and, in effect, make the rule in Sack v Jones general by excluding any common-law duty to prevent land movements forming part of geological developments. That, although for the reasons given above a course which has attractions, is not one open to me, since it would involve departing from Leakey v National Trust. The second is to accept both lines of authority and the resulting distinction between nuisances involving encroachments and those concerning interference with support, so that in the present case there would again be no common-law duty on Scarborough. The third is to accept that for the reasons given in paragraphs 53 to 55 above no such distinction is defensible, and that since in point of authority I must follow Leakey v National Trust there is such a duty here.

 

57. I consider that I should follow the third course rather than the second. The disadvantage of that is that it produces the opposite result in the instant case to that which I would ideally prefer. As to that, however, I am alive to the fact that my preference arises from my view on a very general policy issue on which opinions may legitimately differ. Nor am I concerned here with parties exposed to personal hardship by an adverse decision or financially disabled from testing it elsewhere. The drawbacks of a decision the other way are in my view much more severe. It would in my judgment be a serious blot on any rational system of law to tolerate, and unworkable in practice to attempt to accommodate, anomalies of the kind which would follow from a rule which perpetuated a distinction between the duties of uphill and downhill neighbours, as illustrated in paragraphs 53 to 55 above.

 

58. I therefore hold that Scarborough were under a common-law duty to the Plaintiffs to exercise a "measured duty of care", to the standard set out in the extract from the judgment in Goldman v Hargrave quoted in paragraph 49 above, to remove or reduce any hazard to the Plaintiffs of which they were aware,or should have been aware, constituted by potential failure of support of the Plaintiffs' land by Scarborough's.

 

 

The law: breach of covenant

 

59. In the conveyance of 2 August 1895 the mayor, aldermen and burgesses of the borough of Scarborough, as grantees, covenanted with George Alderson Smith as grantor. The covenant was with the grantor "his heirs and assigns", the grantees were expressed to enter into it "for themselves their successors and assigns" and it is common ground that the First Plaintiffs and Scarborough, as at present constituted and as parties to this action, are entitled and subject to the benefit and burden of those covenants. The question of law is as to the construction and effect of covenant 1. It reads as follows:

 

1. [(a)] That they [the grantees] will with all reasonable speed commence and carry out such works of drainage filling and banking up and other works as are in the opinion of [the grantees] or their Borough Surveyor necessary for the preservation of the said Undercliff and the public footpath therein and for the purpose of preventing the same from slipping or otherwise suffering damage

[(b)] And will at all times thereafter use their best endeavours to maintain and preserve the said Undercliff and footpath

[(c)] And also in the event of any damage at any time hereafter happening to the said Undercliff and public footpath by sinking slipping or from any other cause whatsoever [the grantees] will with all reasonable speed thereafter repair and make good so far as practicable such damage and reinstate so far as practicable the said Undercliff and footpath

[(d)] Provided always and it is hereby expressly agreed and declared that [the grantees] shall not be liable for any damage that may be caused to any part of [the property retained by the grantor] owing to any slip or sinking that may take place in the said Undercliff or public footpath

 

There follow covenants 2 to 6, on which neither party relied, and then:

 

[(e)] And it is hereby further agreed and declared that in the event of any question arising out of any covenant or agreement herein contained such question shall be referred to two Arbitrators one to be appointed by [the grantor] his heirs or assigns owner or owners for the time being of [the retained property] and the other by [the grantees] or to an Umpire to be appointed by such two Arbitrators whose decision shall be final.

 

The paragraphing and the letters in square brackets have been inserted for ease of reference; in the copy in evidence 1 is continuous and unmarked and (e) appears as if a part of covenant 6.

 

60. To dispose first of (a) and (e), it is common ground that (a) was a "once for all" obligation to be performed immediately or within a short period after the conveyance and long since spent, and neither party has invoked the arbitration provisions of (e) or argued that they constitute any bar to the exercise of the court's jurisdiction.

 

61. Little, if anything, was written or said in argument about the construction or effect of (b), as distinct from (i) whether there has been any breach, and (ii) if so, the effect on Scarborough's liability of the proviso in (d). I agree that on the face of it (b) simply means what it says and requires no further gloss, but the covenant must be read as a whole and the possibility must be borne in mind that (d) affects he construction of (b) as well as vice versa, a point to which I must return when considering the scope of (d). It is not in dispute that (b) explicitly imposes an obligation to use best endeavours rather than to achieve a specified result.

 

62. The meaning of (c), equally, was not much debated. Mr Darling appeared at one stage to conflate the requirement to use best endeavours in (b) with that to make good so far as practicable in (c), so as to produce a composite obligation in both to "use best endeavours to do what is practicable", which he equated with a duty of care. That cannot be right. The requirement in (c), in contrast with that in (b), is clearly to achieve a result (the repair and making good of damage, and reinstatement of the undercliff and footpath) "so far as practicable". It is also to be noted that (c) follows naturally on from (b), in the sense that it may be activated by a breach of the latter, although it may equally take effect without any such breach if, despite Scarborough's best endeavours, damage to the undercliff or footpath occurs. As with (b), I reserve the question how far the construction of (c) is affected by (d).

 

63. That brings me to (d) itself, on which most of the dispute centres. Mr Symons seeks to confine its scope, on the ground that if read literally it renders the obligation to maintain in (b) useless. He does so by submitting that it is to be construed as excluding only, "for the avoidance of doubt", liability which Scarborough would have incurred without breach of (b) or (c), not liability for breach of those provisions themselves. That, however, would either make (d) itself vacuous or give it the sole effect of excluding liability for removal of support or for breach of the common-law duty which Mr Symons was at such pains to establish - hardly a result he wants to achieve, although the relationship between the proviso and the Plaintiffs' common-law rights is indeed one which I must consider later.

 

64. In my view the position of (d), forming as it does an integral part of a single covenant containing the continuing obligations of (b) and (c), strongly reinforces the conclusion which would follow from the natural meaning of the words used, that its intention and effect are to limit or exclude liability which would or might otherwise have arisen on breach of (b) or (c). It is grammatically and verbally a proviso and that is the normal function of such a clause, particularly in a professionally drawn conveyancing document (as this plainly was) of that vintage. I have already suggested that (b) and (c) themselves should be construed in the light of (d), and I believe that when that is done they are to be understood as directed primarily to the maintenance and reinstatement of the undercliff and footpath as amenities in their own right rather than as means of support for the retained land above them. Nevertheless a failure to fulfil the grantee's obligations under them could clearly also result in the occurrence of, or in failure to make good, a "slip or sinking" in the undercliff or footpath which would cause damage to the retained property, and the plain purpose and effect of (d) is to exclude liability for such damage.

65. Such an exclusion by no means deprives (b) and (c) of their meaning or effect. The only sanction for their enforcement which is removed is an action for damages for "damage" (which must in the context mean physical damage) to the retained property. I see no reason why there should not be a claim for specific performance, at least of (c). The reluctance of equity to order specific performance of contracts requiring supervision can be overcome where there are countervailing considerations, of which the absence of an adequate remedy in damages would surely be a powerful example. Such a claim under (c) would, of course, itself be subject to the words "so far as practicable", and would be prejudiced and possibly defeated by delay, either or both of which factors may well explain its absence from these proceedings; indeed the impracticability of reinstating the 1993 movement has been conceded for the purposes of the damages claim (see paragraph 128 below). As to other remedies outside the exclusion it is possible, although I am not called upon to decide such issues, that damages could be awarded in lieu of specific performance under Lord Cairns' Act, or for loss suffered by breach of (b) or (c) but not involving physical damage to the retained property.

 

66. I can deal more briefly with the remaining arguments against the natural construction of (d). Both the appeal to the familiar line of authorities identified with Alderslade v Hendon Laundry Ltd [1945] 1 KB 189 and the suggestion that the provisions of (d) did not "run with the land" treat (d) as if it were a free-standing provision instead of a proviso limiting the scope of the covenant of which it forms part, although I shall return to both when considering how far (d) excludes claims other than those for breach of that covenant. Nor do I find the authorities on when an owner of underground minerals has or has not a right to let down the surface in working them of any assistance.

 

67. Since this action is one entirely concerned with damage to the retained property it follows that the claim for breach of covenant must fail.

 

68. There remains the question whether (d) excludes or limits liability arising otherwise than from breach of covenant. Here its position and status as a proviso in covenant 1 tells in the Plaintiffs' favour, in contrast to the situation discussed in paragraphs 63 to 66 above. In my view the natural construction of (d) confines its scope to the covenantors' liability under covenant 1. It would require something much more specific to exclude liability for infringement of the natural right of support, even inter partes, while to bind successors in title would involve not merely the use of contractual words but the reservation of a right in the nature of a proprietary interest to carry out works on the grantees' land which included the removal of support for the grantor's. As to the common-law duty, that was plainly not in the contemplation of the parties in 1895 but the natural construction of the words, as expressed above, entails that it is not displaced or curtailed, and that conclusion gains some support from the Alderslade principle that liability in negligence is not within the scope of an exclusion or limitation clause unless it is the only liability available.

 

69. I conclude that nothing in the 1895 conveyance excludes or limits Scarborough's liability in tort.

 

 

The facts: removal of support

 

70. As indicated in paragraph 31 above, the issues of fact under this head are whether the support of the Plaintiffs' land by Scarborough's was diminished by work done by the latter in 1989, (i) by the distribution of fill, (ii) by the steepness of the regraded slope, and (iii) by obstructing the escape of water.

 

71. I shall need to describe the 1989 works a little more fully in the next section, but for present purposes it is sufficient to record that they involved repairs to cliff surfaces affected by slips in 1982 and 1986, covering part only of what became the site of the 1993 slip, in particular by being much narrower and by extending only some two thirds of the way up the sloping part of the cliff. They consisted briefly of the removal of some 300 mm of surface material, the laying of a drainage "blanket" on the exposed face and the covering of that blanket by imported fill material, which was then regraded to a uniform slope.

 

72. I shall leave complaint (i) until last, as requiring rather more attention than the others. In my judgment there is nothing in (ii), for the simple reason that the top and bottom of the regraded slope were fixed, the former by the level at which it had to join the undisturbed slope above and the latter by the top of the retaining wall of the upper promenade. The average slope between those limits was therefore inevitably the same as it had been before and any change was confined to removing local inequalities of slope, which cannot as such have made matters worse.

 

73. The Plaintiffs' case in (iii) is that the 1982 and 1986 slips had left the site covered by slip material, much of which had the characteristics of a largely impervious clay and which therefore prevented or obstructed the emergence and drainage away of water percolating through relatively pervious horizons in the subsoil. The 1989 works, it is said, should have removed all this slip material, but did not do so, so that some was left under the drainage blanket and prevented water from reaching it, so that it could not perform its intended function. That is obviously an important criticism of the efficacy of the 1989 works, to which I must return when dealing with the allegations of breach of duty, but for present purposes it suffers from the fatal flaw that it is by its nature an allegation not that things were made worse, but simply that they were not made better. It is true that at a late stage there was some suggestion that the works traffic over the exposed face would have had a "puddling" effect, but that was very much a makeweight and an afterthought which Scarborough had not had an adequate opportunity of meeting and on which it would not be right to found a decision even if I were otherwise impressed by it, which I am not.

74. Under (i) the starting point, as for (iii), is the allegation of failure to remove all the slip material. In consequence, it is said, the 1982 and 1986 slip surfaces remained as sources of weakness, since in them cohesion and internal friction would be at or near residual levels. Since those slips had, by their nature, carried material downhill, the process of regrading would inevitably entail adding greater depths and therefore heavier amounts of new fill at the upper levels of the area under repair. That would, the allegation goes, have a destabilising effect, at least if either or both of the earlier slips had been cicular.

 

75. The reason for that conclusion can, as I understand it, be put in two ways. The first depends on the fact that weight added to a slope to the uphill side of a vertical through the centre of the critical circle increases the likelihood of failure, whereas weight to the downhill side of that vertical (the "neutral point") reduces it. The second is perhaps less sophisticated but more direct. It starts explicitly (as the first way does implicitly) from the fact that there had already been failures at a time when cohesion and internal friction at the failure surfaces may well have been at peak values and were certainly as high as or higher than they were afterwards. If, then, the pre-failure loading is restored, there is every reason to expect that the failure will be repeated.

 

76. Accepting, for present purposes, the assumption that the slip material was not removed down to the slip surfaces, which were therefore not repaired, this claim still faces three obstacles. The first is that it has not been established that either the 1982 or the 1986 slip was circular; indeed Scarborough's failure to find the slip surfaces is precisely one of the complaints of breach of duty in the next section. The second is that in the event there was no reactivation of either of those slips between 1989 and 1993. The third, which is connected with the second, is that the 1993 failure was not along any postulated 1982 or 1986 slip surface, so that causation is lacking.

 

77. When I asked Mr Chamley in what way this aspect of the 1989 works could have contributed to the 1993 slip his reply was (in effect) that if the 1982 slip had been the deeper, circular, alternative of the two possibilities canvassed in the GEN report, then at its lowest point it would have been tangential to the 1993 slip circle and so would in that part of the latter have provided a predisposing source of weakness. It is not at all clear, on a comparison of Mr Chamley's own conjectured 1993 slip surface with GEN's postulated deeper slip, that even the geometry necessary to that theory is made out (although I accept that the lowest point of the 1993 slip was in the lower part of the mudstone and reject Professor Hanna's opinion that the slip circle penetrated the sandstone below), and in the light of that and the other difficulties facing this claim it does not approach anywhere near the threshhold of the balance of probabilities.

 

78. I therefore reject the claim based on the removal of support on the facts, so that the points of law left outstanding in paragraphs 33 and 34 above do not arise unless for other reasons the parties persuade me that I should decide them, in which case I shall need further submissions on them when this judgment is handed down.

 

 

The facts: breach of common-law duty

 

79. I have given a general description of the geology and history of the slope in question in paragraphs 4 to 7 above and some further details in paragraph 71. The 1982 slip referred to in the latter passage had its base between the last groyne and the end of the promenade. There is some discrepancy in the documents as to its extent. The plan issued with the tender documents scales to a width of some 50 to 60 metres at the base and suggests a depth between one third and one half of the way up the sloping part of the cliff. The GEN report describes a "landslide measuring some 35 X 35m in plan area" and attaches a plan showing approximately those dimensions. I consider the report the more reliable. For the most part this slip involved the mudstone stratum, but the upper part just penetrated into the glacial till. The 1984/85 investigation by GEN was concerned with the causes and consequences of that slip. The 1986 slip included the site of the preceding one but extended further back - some two thirds of the way up the slope. Mr Hall, Scarborough's Group Engineer, reporting on it on 1 December 1986, wrote:

 

On 27th November 86 it was reported to me that further slippage had occurred on the cliffs below the Holbeck Hall Hotel. This area has been a problem for a number of years because of cliff movement .... .

 

The slipped material has now come down over the upper prom, pushed a short length of railing over and extended itself over the lower prom and onto the beach. ....

 

80. Scarborough would have liked to obtain central governmental funding for a remedial scheme, but could not do so because the slips at this point were neither caused by nor likely to result in any failure of coastal defences. On 29 September 1988 the Director of Technical Services, Mr Clements, wrote to Councillor Allanson, the Chairman of the Council's Environmental Health and Control Committee, as follows:

 

You may recall that some weeks ago I advised you of my concern regarding a substantial cliff slip that has existed to the south of Holbeck Ravine for some considerable period of time, and requested that you contact me with a view to us visiting the site when it was convenient.

 

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. ....

 

81. In those circumstances I find 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's. Actual awareness is evidenced by Mr Clements' letter of 29 September 1988 and by the proviso to covenant 1 in the conveyance of 2 August 1895. Grounds for being aware are constituted by the entire history of cliff failures and remedial works by Scarborough along the coastline of the area, of which there was much evidence which I take into account but do not think it necessary to rehearse here, but of which the most significant for present purposes was that of the two events of comparable magnitude to that of 1993 referred to in paragraph 7 above.

 

82. That was the position at the date of the letter of 29 September 1988. Since in the event, following that letter and various committee meetings, remedial works were authorised and carried out in 1989, there is further support for a finding that Scarborough should by then have been aware of the hazard in the conclusions which I reach in paragraphs 112 and 113 below as to the investigations which Scarborough should have carried out or commissioned before embarking upon the 1989 works, and what would have been the result of such investigations.

 

83. On that finding of fact the duty of care defined in paragraph 58 above arose, and I turn to the question whether it was fulfilled. As I understand the impact of a defendant's "individual circumstances" on the standard of care, as explained in the extract from the judgment in Goldman v Hargrave set out in paragraph 49 above, it operates by reducing that standard in the light of relevant mitigating features, such as infirmity, limitation of resources, or the reasonableness of seeking a contribution from the neighbour at risk, below what would be expected in the absence of any such mitigation, which by implication would be the ordinary standard of due care and skill applied in the tort of negligence. In Leakey v National Trust Megaw LJ described the duty as one "to do that which is reasonable .... to prevent or minimise the known risk" and said that "the considerations with which the law is familiar" were to be taken into account in relation to breach and causation, which again seems to be a summary of the same ordinary standard. It seems convenient, therefore, to consider first whether there was compliance with that ordinary standard of due care and skill, and (if not) then to turn to the impact, if any, of alleged mitigating factors. Consideration of the ordinary standard is, in any event, almost unavoidable in the light of the way in which the cases for the parties have been pleaded and argued. In discussing that issue I shall, in the interests of brevity, use "negligence" to mean failure to comply with that standard, but that is to be understood to be without prejudice to the question whether as a result of such "mitigating factors" there was no actionable breach of the "measured duty" in operation here.

 

84. A number of the allegations of breach of duty turn on whether Scarborough took due account of the GEN report, and much of Scarborough's defence consists in substance of the assertion that the 1989 works were carried out in reasonable reliance on that report and in conformity with its recommendations. Although many of the same allegations and answers, and some additional ones, are also made independently of reference to the report, it is not possible to embark upon consideration of the issue of compliance or otherwise with the duty of care without first assessing the place of the GEN report in any resolution of that issue.

 

85. The report begins, after a short general introduction, with a description of the site and its geology, concluding with the folowing paragraph:

 

Groundwater seepages were noted issuing from a small hollow in sand within the Glacial Drift at about 27m O.D., from a thin sandy siltstone band at about 25m O.D. and from within the body of the slip.

 

There is then a short paragraph about the prevalence and signs of instability in the area, followed by a description of the ground investigation undertaken, comprising two boreholes drilled by a rotary rig just outside the slip area and four by a hand auger (three within the slip area), the logging of that process and the laboratory tests carried out on samples. Schedules of the borehole logs, groundwater levels and test results are attached.

 

86. The remainder of the report is headed "5. Discussion and Conclusions" and is the most material for present purposes. It begins at 5.1 with a more detailed description of the geology, as appearing from the investigation. There is a reference in this section, on which the Plaintiffs relied, to "some polished slickensided surfaces [in the mudstone] dipping at between 25 and 40 degrees". Slickensided surfaces are, as the expert witnesses agree, evidence of past shearing movements within the ground, and their presence may be indicative of a potential surface of failure. Scarborough's officers would or should have understood that (see paragraph 89 below).

 

87. Section 5.2 concerns groundwater. It records a groundwater seepage in one borehole and evidence of a perched water table in another, and states that "groundwater is present from time to time in the landslip, but there appears to be no definite pattern to the water level measurements".

 

88. Slope stability is discussed in section 5.3. It needs to be set out in full:

 

The hand auger boreholes were unable to detect the slip surface with any certainty and so as a first approximation slope stability analyses have been made assuming the slip surface coincides with the depth at which the hand auger boreholes met refusal. A soft band was encountered in borehole 3B just above this depth and it could be that this is the slip plane. It is likely that an effective stress analysis is more applicable than a total stress analysis. In the absence of effective stress parameters a back analysis has been carried out assuming a factor of safety of 1 applies to the postulated slip surface when the piezometric head on the slip surface coincides with the highest water levels recorded in the standpipes. Assuming the effective cohesion, c', along the slip surface is zero, this analysis [yielded] an effective angle of internal shearing resistance, f', of 31.5 degrees, which is not an unreasonable value for the type of clay suggested by the index test results, figure B11, (Skempton, 1964).

 

A second analysis was carried out assuming that the slip surface occurs at a deeper level with the top of the thicker sandstones forming the base of the slip and material being pushed over the steeper part of the cliffs and sliding onto the upper promenade. A postulated slip surface for this deeper case is shown on the section figure B12. Assuming a c' value of zero and a water table coincident with the highest readings obtained in the standpipes within the slip back analysis gave a f' value of about 33 degrees.

 

Lowering the groundwater within the slip mass to just below the shallower of the postulated slip surfaces increases the factor of safety in the analysis from 1 to 1.4. Lowering the groundwater to the base of the deeper postulated slip surface increases the factor in this case to about 1.7. If in this second case the water was only lowered to about 1.5m bgl then the factor of safety would increase to about 1.2.

 

89. There was much argument about what Scarborough should have understood from that section and, as a preliminary to that substantive issue, about what level of expertise should be attributed to the officers in the department who would or should have read it (since there was no direct evidence from anyone with any effective recollection of actually doing so). As to that, the report is manifestly addressed not to a lay readership, but to one with at least the elementary understanding of soil mechanics which I have attempted to summarise in paragraphs 9 to 19 above, and indeed rather more, since a familiarity with the process and significance of "back analysis" is assumed, as is access to such an authority as Skempton and the ability to verify there the relevant data for which it is cited. There was no evidence of any protest at the time that those expectations were pitched too high, and in so far as any of Scarborough's witnesses suggested at trial that they were (it is not at all clear to me that they plainly did) I reject any such suggestion. Mr Clements' account of a meeting at which the report was closely considered by himself and three of his officers in 1993 (see paragraph 102 below) gives every appearance of shared assumptions of easy familiarity with the concepts and vocabulary of the discipline. All the relevant officers of any seniority had civil engineering qualifications and experience, they would all have been introduced to the basic principles of soil mechanics in their degree courses, and the stability of cliff slopes was one of the constant practical concerns of the department. I am satisfied that they would all have either understood the technical references at first reading or had no difficulty in refreshing or supplementing their knowledge of the subject as necessary for that purpose by recourse to standard works of reference, their colleagues or GEN, as they plainly should have done if they needed to. That is also the reason for my finding in paragraph 86 above as to their understanding of the reference to slickensides.

 

90. It was common ground among the expert witnesses that back analysis is a recognised and (within its inherent limitations) appropriate procedure where a full effective stress analysis is not possible for lack of effective stress parameters. Its purpose is to establish the minimum drained angle of friction (f') which the material in question must possess if the slope is to remain stable under the conditions assumed for the purpose of the analysis. Thus the factor of safety, which in a full analysis would be part of the product of the exercise (see paragraph 19 above) is here part of the input, and is set at 1, the critical value at (or just below) which failure occurs.

 

91. On that basis I find that section 5.3 of the report conveyed to Scarborough, or should if properly attended to have conveyed, the following:

 

(1) The slip surface had not been identified.

 

(2) One possibility was a slip surface at the depth at which the hand augers met refusal. By reference to the "Tentative Geological Section" annexed to the report that could be seen to be, and was described as, a "shallow slip surface" some 1m to 1.5m below the slope profile after the slip and perhaps about twice that depth below the pre-slip profile.

 

(3) An effective stress analysis was "more applicable" than a total stress analysis, but a full effective stress analysis could not be carried out for lack of effective stress parameters.

 

(4) A back analysis of the postulated shallow slip surface, on the assumptions stated in the report, yielded a value for f' of 31.5⁰ as the minimum required for stability.

 

(5) That was "not an unreasonable value" for the type of clay suggested by the test results. Those are not the clearest of words, but in the context of the remainder of the section and in the light of the next section on remedial works they could plainly not safely be understood as conveying any assurance of stability.

(6) An alternative possibility was a deeper slip surface, with its base at the top of the sandstone. The "Tentative Geological Section" shows this as essentially a circular slip, except that the toe is carried out horizontally instead of following a strictly circular arc upwards.

 

(7) A similar back analysis of that postulated slip surface yielded a value for f' of about 33⁰.

 

(8) That value, without even any such comment as "not .... unreasonable", conveyed in comparison with (5) the clear possibility, at least, that on the assumptions of the second back analysis the cliff was unstable and, being greater than the value in (4), that if any conclusion could validly be drawn from a comparison between the two analyses it would be that the deeper slip surface was the more likely.

 

(9) Stability would be improved by drainage which lowered the groundwater level within the slip mass. If the slip surface was the shallower one lowering the groundwater level to just below it would make a substantial difference, but that degree of drainage would be significantly less effective if the slip surface was the deeper one, although in that event taking the level down to the base of the postulated slip would produce a big improvement.

 

92. Some explanation of those findings is needed in two respects. In the first place there was much dispute as to whether the GEN report contemplated only a shallow slip, as Scarborough contended, or also the possibility of a deeper one, and in the latter event whether it conveyed any, and if so what, opinion as to their relative probabilities. That it contemplated both is in my view plain beyond argument. As to the relative probabilities there are just two possible pointers. On the one hand there is the reference to the "soft band" in borehole 3B, which "could be" the slip plane. That cannot, on any rational view, be of much weight. On the other hand there is the comparison between the two back analyses. Mr Chamley's view was that that comparison showed the deeper slip to be the more likely, and if the comparison is valid at all that conclusion follows inescapably from the nature of the exercise. To resist a slip at the deeper surface required, on the face of GEN's conclusions, a stronger material (in the sense of one with greater internal friction, as measured by its value for f') than to resist a slip at the shallower surface. The other experts do not, as I understand it, dispute the logic of that. Their criticisms, however expressed, seem to me to amount to saying that the comparison is not valid because the simplifying assumptions inherent in back analysis, or imported by GEN, or implied by the comparison itself (for example that c' was zero at both levels and that the soil had the same characteristics at the two postulated surfaces) vitiate it. Those criticisms, and those made by Mr Chamley himself of the reliability of the absolute values obtained (he considers them too high) may, in whole or in part, be justified, and would, had they occurred to Scarborough's officers, have entitled them not to draw any firm conclusion from the difference between the two results, especially since GEN themselves did not do so. My finding at (8) in paragraph 91 above concerns only the conclusions which Scarborough could have prayed in aid as against the Plaintiffs had they read the GEN report and taken the comparison between the two results at face value.

 

93. The other explanation concerns finding (9), which I have expressed in general terms, omitting the figures in the last paragraph of section 5.3 of the report. That is because of the question whether it is valid to compare factors of safety not deduced from any stress analysis but simply assumed for the purpose of back analyses, and corresponding to different values of f'. I had no evidence how much the figures of 1.2 and 1.7 should be adjusted (it would obviously be downwards) to compare with that of 1.4 if f' were taken to be the same 31.5⁰ in both cases, nor did I have any evidence or argument as to whether Scarborough's officers would or should have considered such points. That this paragraph of the report was intended, and would or should have been understood, to emphasise (i) the improvement obtainable by lowering the groundwater level, and (ii) that on the deeper slip postulate only taking it down to the base of that slip surface was likely to be effective, is nevertheless clear.

 

94. Section 5.4 of the report concerned remedial measures. To begin by stating the obvious, this section takes it for granted that the reader of 5.3 will have understood from it that remedial measures are necessary. The first paragraph states that before designing remedial measures "it may be prudent" to carry out further investigation by trial pits to try to locate the slip plane and to obtain samples for effective stress testing, so that a rigorous slope stability analysis can be carried out. Mr Darling naturally emphasised, and I accept, that that was not the language of firm and positive advice.

 

95. The second paragraph states that "in the meantime" the analyses in 5.3, although hypothetical, "suggest that the provision of suitable drainage will play a major role in reducing instability", and the remainder of this section discusses the nature of such drainage. What is suggested is a herring-bone pattern of trenches filled with suitable granular material and leading to counterfort drains "keyed to bedrock". Counterfort drains are defined in the relevant British Standard as "trench drains which are carried into solid ground below a slip surface". They would in GEN's proposal run at right angles to the contours of the slope and serve as the "spines" of the herring-bone "ribs". As to their depth the British Standard is clear and "keyed to bedrock" is self-explanatory. In my view the reconciliation between the tentative nature of the advice as to further investigation and the specific suggestions as to drainage lies in the fact that counterfort drains "keyed to bedrock", that is to the sandstone, would on any view be at or below the base of any conceivable slip surface.

 

96. Section 5.4 also proposes that "the slipped mass on the lower cliff" should be regraded to a gradient of "perhaps 1 in 2 or 1 in 1.5".

 

97. The report concludes in section 5.5 with "general remarks". In part they bear the marks of standard reservations, but Scarborough was not for that reason entitled to disregard them and in at least one respect they have clearly been adapted to the specific conditions of the site. Two are of some significance. The first is that because there may be conditions at or adjacent to the site which have not been considered in the report "a careful watch should be maintained during any future groundwork and the recommendations of this report reviewed as necessary". The second is that the recommendations should not be used for any other schemes on or adjacent to the site without further reference to GEN.

 

98. The 1989 works were designed and supervised by Mr Frank Davies, a group engineer in Scarborough's engineering department. The contract documents included Bills of Quantities. Bill 2/7 read: "Excavation over site area depth 300mm to receive filter blanket". The filter blanket referred to was to provide drainage to a transverse collector drain at the foot of the slope, and was to be laid over the site area after the above excavation. No other drainage relevant to the issues before me was provided for. The blanket was then itself to be covered by imported Glacial Till fill, which was to be graded to an angle of 30.5⁰, which was the angle required to provide a uniform slope from the top of the 1986 slip backscar down to the new gabion retaining wall provided as part of the works to protect the promenades at the foot of the slope.

 

99. The Bill clearly calls for the removal of a layer of uniform thickness, not down to a slip surface to be discovered in the course of excavation. The contract drawing is consistent with that conclusion. The final account shows that this item was approved and paid at the same quantity as that in the tender documents; that of course shows only that the average depth excavated was 300mm, but it would be a remarkable coincidence if an excavation varied to accord with a previously unknown slip surface happened to produce the exact quantity calculated by reference to a specified uniform depth. The documentary evidence, therefore, points clearly to the conclusion that no attempt was made to identify the slip surface or to remove all the slipped material above it.

 

100. Unhappily Mr Davies had died before trial, and indeed before any witness statement was taken from him. No other witness with direct knowledge of the 1989 works was called. The only evidence of what happened apart from the documents, and some photographs which do not assist on the present point, was that of Mr Clements and Mr Riby (the then principal engineer) as to what Mr Davies said at a meeting shortly after the 1993 landslide. Mr Clements made a statement as to this meeting on 12 March 1997, which was at or shortly after he was first asked to recall it. Mr Riby saw that statement and agreed with it as "reflecting the tenor of the meeting", but had nothing to add or clarify from any independent recollection of his own.

 

101. Mr Clements' statement describes the meeting as happening within two to three weeks after the 1993 landslide. In addition to the three persons already mentioned there was present Mr Hurst, Mr Clements' deputy, who had line management responsibility for engineering matters. Mr Clements described it in cross-examination as an investigatory meeting at which he wanted witnesses. He accepted that Mr Davies was presumably feeling quite defensive.

 

102. Omitting passages which do not materially bear on the issues before me Mr Clements' statement as to the course of the meeting is as folows:

 

2. Mr Davies confirmed that he was aware of [GEN's] report and that he had had regard to it when considering his design and also when supervising the works.

 

3. I referred Mr Davies to the .... report and asked him if he had carried out any trial pitting to confirm the ground conditions, as suggested .... . He confirmed that he had done so with the assistance of the main contractor and prior to the remedial work proper being commenced, and also as necessary during the works. .... at no location had he been able to identify what he felt was an identifiable slip plane. ....

 

4. I asked him if he had had any further soils testing done and he said no. When asked to explain why, he said that he did not feel that further testing would have materially added to the knowledge already available.

 

5. He said that he had concluded that the most appropriate course of action would be to remove from the site all unsuitable (slumped and waterlogged) material down to a level where the ground material appeared sound, and then to provide a drainage blanket .... . He commented that he had concluded that such a process would provide the most effective drainage .... and meet the requirement for the provision of suitable dainage in a more effective and comprehensive manner than by the introduction of herringbone drains. ....

 

6. When questioned on how he decided what level to excavate to he said by visual inspection .... and the exercise of his professional judgment .... .

 

7. I questioned him about the report's suggestion regarding the introduction of counterfort drains keyed to the bedrock. He stated that the results of the trial pitting had failed to establish bedrock and that .... he did not feel that the proposal was achievable in practice. ....

 

8. [Further question and answer as to the drainage system, substantially as in the second part of 5.] He also said that he felt that the drainage blanket would assist stability as the angle of internal friction of the .... blanket material was higher than the soils it would be in association with.

 

9. He confirmed that this technique (use of drainage blanket) had been used successfully in similar shallow slips elsewhere and, in his view, offered an effective and proven design solution .... .

 

103. At the close of the meeting Mr Clements asked Mr Davies to prepare a written confirmatory statement, but it appears that he did not do so and was not reminded of the instruction. Mr Clements took no note, nor (despite his expressed need for witnesses) did he require Mr Hurst or Mr Riby to do so. Mr Riby does not seem to have taken one of his own volition; Mr Hurst, although alive and well, was not called and no note of his was, I take it, disclosed on discovery.

 

104. Despite the frequent and detailed references to the report Mr Clements was "pretty sure" in cross-examination that no copy was physically present or looked at during the meeting. He agreed that although his statement sometimes has Mr Davies apparently uttering fairly extensive connected passages the meeting probably consisted basically of his asking questions, based on his study of the report, and Mr Davies' giving short answers. He said that he had wished to establish whether a slip plane had been found, not only because of the suggestion in the first paragraph of section 5.4 of the report but also because he himself felt it was an important question and he wished to be clear on it. On being asked whether, when told that none had been found, he had asked Mr Davies why he had not gone back to GEN or carried out some further investigation himself, he initially replied that he did not do so and later that he could not remember. He certainly gave no evidence of any answer by Mr Davies to such a question, and I find that his first answer was correct.

 

105. Mr Clements was asked some questions in cross-examination as to the genesis of Mr Davies' drainage scheme:

 

Q. He, of course, had just recently finished the Whitby

scheme, had he not, in 1989?

A. Yes.

Q. Have you concluded in your own mind, Mr Clements, that

the 300-millimetre drainage blanket came in his mind

from the Whitby scheme?

A. Yes, I think he had learnt from that experience .... .

Q. But when you say in paragraph 9 that Mr Davies had used

this technique successfully in similar shallow slips

elsewhere, was Mr Davies referring to Whitby then?

A. I think he was, yes.

Q. Was Whitby mentioned?

A. I think it probably was, yes.

Q. Yes. Because what you concluded, was it not, as a

result of this meeting, that Mr Davies had used what

he believed to be the system at Whitby and transferred

it onto the slope?

A. Yes, I think he had felt that the Whitby solution for

shallow slips was one which was applicable.

Q. He --

A. To deal with seepage erosions.

Q. He had tried to follow that scheme?

A. Yes.

Q. It follows from that that he had not followed the GEN

scheme?

A. He did not adopt the GEN scheme, no.

 

106. It is most unsatisfactory that no record was kept of this important meeting, so that the only evidence of it is that of Mr Clements' unaided recollection some four years later. It is clear that he omitted altogether from his statement the significant fact that Mr Davies had simply "transferred" the Whitby drainage scheme. However, I have no doubt that he was doing his best, and I accept that although there may be other omissions the passages included do reflect the "tenor", as Mr Riby put it, of things that were said by Mr Davies, although probably much more by way of "yes/no" answers to Mr Clements' questions than in the more connected way which the statement implies. Although it was an "investigatory" meeting Mr Davies' account was plainly not probed or followed up by Mr Clements in any depth: for example he did not ask Mr Davies why trial pitting had occurred after design instead of before, nor why he had accepted his failure to discover a slip plane without reference back to GEN or further investigation, nor how his account of deciding excavation levels on site related to the contract specification.

 

107. Mr Symons submitted that Mr Davies had in truth not read the GEN report before designing the 1989 works, relying on this and other evidence. I do not find it necessary to reach a conclusion about that, because what is in my view quite clear is that, whether or not he had read it, he paid no regard to its contents. It is plain, and was eventually accepted by Mr Clements, that the drainage design bore no relation to GEN's recommendations.

 

108. Mr Clements sought to suggest that the reference to removing "all unsuitable (slumped and waterlogged) material" should be understood as meaning that all slipped material was removed down to the slip surface, but that is belied by the plain and unequivocal statement that no slip plane was anywhere identified, as well as being contrary to the documentary evidence that a uniform 300mm was removed, and I reject it. There may have been slight variations in depth on site instructions from Mr Davies, but I find that they were at most inconsequential and that in substance the excavation was in accordance with Bill 2/7. For much of the trial it seemed self-evident that on that basis the excavation was not only not designed or executed with the intention of reaching the slip surface but would not in fact have done so, even on the shallow slip postulate, and Mr Chamley gave evidence, by reference to the borehole logs, as to the minimum depth of claylike slip material which would have remained at particular spots. At a late stage the basis of his calculations was challenged on the ground that contemporaneous notes showed that GEN's measurements of distances had been along the slope rather than horizontally. Upon investigation that, surprisingly, appeared to be the case. However, Mr Chamley reworked his calculations on that new basis and although the depths of unremoved clay were reduced they were not eliminated, and those reworked calculations were not challenged. I therefore find that

a layer of unexcavated claylike slip material remained after the removal of the top 300mm.

 

109. Against the background of those findings as to what Scarborough should have understood from the GEN report, and as to the nature of the 1989 design, I turn to the allegations of breach of duty in paragraph 18 of the Re-Amended Statement of Claim, which I shall re-order into related groups:

 

110. I take first items (a) and (e):

 

(a) Failed to appreciate from the findings of GEN's back analysis that a deep seated slip was more likely.

 

(e) .... designed and carried out works appropriate only to a shallow slide when it knew or ought to have appreciated from [GEN's] report that it was more likely that a deep slip had occurred.

I have dealt with this topic in paragraphs 91 and 92 above. It follows from my findings there that there was no negligence in failing to appreciate from the report (and indeed it arguably may not have been the case) that a deep seated slip was the more likely, but that it was a breach to design and carry out works appropriate only to a shallow slide without excluding the possibility that the 1982 and/or 1986 slip had been deep seated. That possibility had been plainly raised and (at least) left open in relation to the 1982 slip by the GEN report; it had not been investigated, let alone excluded, in relation to the 1986 slip; no slip plane was identified in designing or executing the works.

 

111. Next there is the first part of (b) and (h)(iv):

 

(b) .... failed to appreciate that the finding of slickensided shear surfaces in the mudstone indicated that movement had previously taken place in the mudstone, alternatively .... failed to act upon the same.

 

(h)(iv) The design did not recognise the presence of a zone of slickensided fracture surfaces which represented a zone of weakness.

 

These allegations fail for lack of specificity and of relevant pleaded consequences. There had on any view been previous movement in the mudstone, as everyone knew, and it is not alleged that the slickensided surfaces found were on the slip plane either of the 1982 slip which was being investigated or of the 1993 slip which damaged the Plaintiffs, nor did the GEN report suggest that they helped to identify the former.

 

112. The remainder of (b) needs to be taken with (c), (g) and (h)(i):

 

(b) .... should have followed the recommendations in GEN's report .... to:

(i) carry out further investigations by way of trial pits dug within the slip mass to locate the slip plane and to obtain suitable samples;

(ii) carry out suitable effective stress testing; and

(iii) carry out a rigorous slope stability analysis.

 

(c) .... failed to conduct further investigations .... by means of boreholes and pits ....[particulars of five types of investigation are given].

 

(g) Following GEN's investigation and prior to stabilisation works, further and more extensive slipping took place with new debris over-riding the area investigated by GEN, the Defendant should have, but failed to carry out any further investigation works.

 

(h)(i) There were no analyses to confirm the adequacy of the design.

 

As stated in paragraph 94 above GEN's recommendations summarised in (b)(i) to (iii) were not expressed in firm or positive terms, and if that were all it would not have been negligent to have failed to implement them. However that was not all. In the first place, as pointed out in paragraph 95 above, 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.

 

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 that 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.

 

114. The next group of allegations concerns drainage. It contains a good deal of repetitive matter and I need not set it out verbatim. Item (d) alleges failure to heed or act on GEN's advice in this respect or to provide drainage to the water-bearing horizons within the mudstone rock beneath the slipped mass. Item (h)(ii) complains that there was no provision for removal of the slipped mass. Item (h)(iii) is to the same effect as (d), (h)(v) adds that the drainage blanket was laid on top of slipped clay and (h)(vi) that the blanket was likely to have become clogged during the works. Item (k) alleges that the slipped mass and clay acted to trap water in the water-bearing strata within the slope, preventing the dissipation of water pressure within the slope and contributing to a reduction in stability. Apart from (h)(vi), which was not established, I find these allegations proved and Scarborough to have been negligent in these respects. 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.

 

115. Item (f) alleges that even if the 1982 slip was a shallow slide the design and work allowed for an inadequate factor of safety against a shallow slip, namely 1.05. This allegation adds nothing to the more specific ones made elsewhere and ignores both the existing fact of the 1986 slip and the subsequent event that the 1993 failure was deep, not shallow. It needs no separate finding.

 

116. Item (i) raises the same point, about the distribution of fill and the resulting increase in the load over the upper part of the slope, made in the Plaintiffs' case on removal of support and dealt with in paragraphs 74 to 77 above. I have now found that the slipped material was not all removed and it is apparent from Scarborough's own profile of the slope in the contract drawings that the fill was to be deeper over the upper part of the area under repair than over the lower. It must follow for the second of the reasons given in paragraph 75 above that that risked a repetition of the earlier slips and was therefore negligent, although for the reasons given in paragraphs 76 and 77 the Plaintiffs have failed to establish that it was causative of the 1993 landslide.

 

117. That leaves (j), which again is a repetition of a ground relied upon under removal of support, namely that the design angle of 30.5⁰ was too steep. This complaint cannot be sustained under the head of disregard of GEN's report, which as stated in paragraph 96 above proposed a gradient of "perhaps 1 in 2 [26.6^0] or 1 in 1.5 [33.7⁰]". Moreover, for the reasons given in paragraph 72 above, 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.

 

118. I have therefore found Scarborough negligent in the respects discussed in paragraphs 110, 112/113, 114, 116 and 117 above. Those in paragraphs 110, 112/113 and 117, taken together, were clearly causative of the 1993 slip. I have already stated that that in 116 was not. There remain the drainage items dealt with in 114. 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. In any proper design following adequate investigation, however, they would have been avoided, and in that sense remain relevant.

 

119. That brings me to the question left over from paragraph 83 above, as to whether the liability which would have followed from the above findings had Scarborough been under a full duty of care by the objective standards of the tort of negligence is mitigated by reason of its "individual circumstances".

 

120. The first type of circumstance referred to in Goldman v Hargrave by the words "less must be expected of the infirm than of the able-bodied" seems by its nature to be applicable only to defendants who are natural persons. In Leakey v National Trust Megaw LJ seems to confine the materiality of age and physical condition to cases where "physical effort is required to avert an immediate danger" (p 526E). On neither approach is it relevant here, nor do I understand Scarborough to suggest otherwise.

 

121. The next category concerns financial resources and interests. In Goldman v Hargrave the Privy Council compared the owner of a "small property" on which there is a hazard threatening a neighbour with "substantial interests" with another with "larger interests of his own at stake and greater resources to protect them". In Leakey v National Trust Megaw LJ said that "where the expenditure of money is required, the defendant's capacity to find the money is relevant" (p 526F). It was not suggested, nor could have been, that Scarborough was the owner of a "small property", and the relevance of the Plaintiffs' interests and resources is better dealt with separately as part of a third category of circumstances. There remains at this stage the factor of Scarborough's resources or "capacity to find the money".

 

122. Scarborough is a substantial local authority. I had no evidence of the magnitude of its financial capacity generally in terms of total annual income and expenditure, revenue-raising base, assets or borrowing potential, so it is not in a position to suggest impecuniosity on that basis. It is clear that it was reluctant to spend its own money if there was any hope of funding works from government grants, but that cannot be of any relevance. It is equally clear that there was, as one would expect in any such authority, a budgetting process in which, on the expenditure side, competing candidates for incorporation in annual programmes of works were advanced by their advocates among officials or members and accepted, rejected or postponed, and that remedial works to the site with which I am concerned were in the operation of that process not authorised until 1989 and then only on a basis which I have found to be wholly inadequate. In my view that is not of any relevance either, because it is quite clear first that what was being assessed was (relative) priority rather than (absolute) affordability, and secondly that the factors taken into account did not include the fulfilment of any legal duty to the Plaintiffs but were simply those which governed the council's priorities as an elected local authority generally. High on the list of those priorities, so far as cliff stabilisation works were concerned, was the preservation and enhancement of amenities of attraction to visitors, the revenue from whom was naturally and properly of the highest interest to the council and its electorate.

 

123. Mr Clements was asked some questions about the likely willingness of Scarborough, if advised that there was a serious likelihood of what in the event happened in 1993, to spend the sort of money required to carry out a scheme adequate to meet the Plaintiffs' case as to what was needed to give a reasonable assurance of stability. The value of that sort of hypothetical evidence would be limited at best and in the event I do not feel the need to rely on it. The question is not what Scarborough would have done but what they reasonably could and should have done, and in my judgment they have adduced no evidence in reliance on which the answer could properly be affected on the basis of lack of financial resources on their part.

 

124. The third category of mitigating feature envisaged in paragraph 83 above is the reasonableness of seeking a contribution from the neighbour at risk. That is in part suggested by some of the phrases quoted from the judgment in Goldman v Hargrave in paragraph 121 above, but they were used in a context in which only the neighbour's own interests called for consideration. In the present case the Plaintiffs would, if informed by Scarborough of the situation, for example after investigations and advice of the kind described in paragraph 113 above, have had not only to consider their own interests but also to take into account their concurrent "Leakey" duty to Scarborough as the uphill occupier of unstable property, in the light of facts such as those set out in paragraph 54 above. That consideration, however, although it may be of significance in arriving at the true measure of damages, cannot assist Scarborough on the present point, since they did not at any stage give the Plaintiffs any such information or make any demand or request for a contribution to the cost of any works or for the incorporation of any part of the Plaintiffs' land in any remedial scheme.

 

125. I therefore conclude that Scarborough is liable to the Plaintiffs in damages for breach of the duty described in paragraph 58 above and found in paragraph 83 above to have arisen in the present case.

 

 

The facts: breach of covenant

 

126. I have already held in paragraph 67 above that the claim for damages for breach of covenant fails in law, as being excluded by the proviso to the covenant relied upon. In case I am held to have been wrong about that I shall indicate my views about whether there were on the facts any breaches of the covenant, but in the circumstances I propose to do so quite summarily. In that I am assisted by the way in which this claim is advanced and by the fact that I have already covered much of the ground in dealing with the claim for breach of common-law duty. I bear in mind that the covenant bound Scarborough in respect of only about half of the cliff (see paragraph 8 above).

 

127. The first relevant part of the covenant is that by which Scarborough were at all times to "use their best endeavours to maintain and preserve the said Undercliff and footpath". I was not referred to any authorities on the standard required by the words "best endeavours" but I cannot see that it can be lower than that required by the ordinary duty of care in the tort of negligence. On that basis the findings of negligence summarised in paragraph 118 above entail that Scarborough was in breach of covenant in the same respects.

 

128. The other relevant part of the covenant requires Scarborough, in the event of damage to the cliff or path, with all reasonable speed to repair, make good and reinstate, so far as practicable. There is an important limitation on the claim advanced under this part of the covenant, in that the Plaintiffs concede that works of reinstatement to repair the 1993 slip were not practicable. So far as repair of the 1982 and 1986 slips is concerned there may well have been a breach of the requirement to act "with all reasonable speed", but no damages are claimed for delay in the carrying out of the 1989 works; the complaint is of their efficacy. I am doubtful whether there was a breach in that respect - the cliff was in one sense fully "reinstated" - but I do not find it necessary to resolve my doubts on that point in view of the fact that the issue is doubly hypothetical: it does not arise at all unless I am wrong about the construction of the proviso, and if it arises and there was a breach that breach arose from the same facts and caused the same damage as that of the first part of the covenant, already dealt with.

 

 

Scarborough's claim against GEN

 

129. Scarborough's claim against GEN is pleaded as one for damages in contract and tort and for a contribution under the Civil Liability (Contribution) Act 1979. The claim in contract, however, was met by a Limitation Act defence which was conceded in opening to be unanswerable, and the contribution claim was rightly abandoned in Mr Darling's closing submissions. I am left, therefore, to decide the tort claim, which is one in negligence concurrent with that part of the abandoned contractual claim which relied upon breach of a duty to "exercise all reasonable care and skill to be expected of specialists in site investigations and/or interpretation of the results of site investigations".

 

130. I have already summarised GEN's report in paragraphs 85 to 97 above and need not repeat that summary for the purposes of the present claim. It is, however, necessary to consider that report and Scarborough's complaints about it in the light of the contract for GEN's engagement, since although the contract claim has gone the scope of GEN's tort duty must be ascertained in the light of its contractual responsibilities.

 

131. The contract was based on a set of documents which included a form of tender, conditions of contract incorporating the fifth edition (June 1973) of the standard I.C.E. Conditions with variations, a specification, bills of quantities and contract plans.

 

132. By clause 5.02 of the specification the object of the works is stated to be "to determine the types of cliff and treatment required to make them stable and prevent further slips occurring". In a sheet issued with the tender documents "for information and tendering purposes" but expressed not to form part of the contract it is stated that "[a] report is required to advise on the treatment required to the cliffs to make them stable and prevent further slipping of material onto the paths and promenades below" and that "[t]here is also a problem with ground water and recommendations are required as to what drainage facilities should be provided ....". That cannot add to GEN's contractual obligations under clause 5.02 but is of some significance as showing Scarborough's knowledge or belief that the cliffs were not stable and that there was a "problem with ground water", and its concern as being primarily with the slipping of material over the paths and promenades below rather than with the removal of support for other persons' land above.

 

133. By clause 5.66.1 the report was to be submitted in two sections, of which the first was to contain factual information such as borehole and test records and the second was to contain the following information where applicable:

 

f. The written report including any interpretation of subsoil conditions.

 

g. Any calculations, analyses and recommendations which have been called for by the Engineer.

 

134. Clearly sections 5.1 to 5.5 of the report, as summarised and discussed in paragraphs 86 to 97 above, were directed to the words "treatment required" in clause 5.02 and to the requirements of clause 5.66.1.f. and g. and were treated by both parties as "applicable information" for the purposes of the latter clause.

135. Professor Denness gave evidence that in his opinion GEN's function was simply that of a mechanical contractor, but in the light of the terms of clauses 5.02 and 5.66.1 and of the way in which they were implemented in the report that cannot be right; GEN's duties clearly included the provision of interpretation, advice and recommendations. I consider that in truth that is simply a straightforward matter of the construction of the contract, but in so far as it is a matter on which expert evidence assists I prefer, in this one instance, the contrary view of Professor Hanna.

 

136. GEN relied upon a number of contractual terms as showing that it was not entitled to make any changes in the tender documents, was not responsible for the design or specification of the (investigatory) works and was subject to the instructions of "the Engineer" (who was Mr Clements) in the execution of the contract generally and in the methods of exploration employed in particular, that general provisions as to any particular mode of investigation applied only if there was an item for that mode in the bills of quantities, and that there was no such item for such matters as effective stress testing or the installation of piezometers. I do not think I need set out those terms in full or discuss them further, because in the end no allegation was persisted in on which GEN needed their assistance.

 

137. It is not in doubt or dispute that in order to succeed against GEN Scarborough must establish reliance on GEN's advice. That is put in two ways. Paragraph 11 of the Statement of Claim begins:

 

In reliance on the GEN Report, Scarborough designed and caused to be carried out remedial works in 1989, in accordance with and in the light of the findings, opinions and recommendations contained in the GEN Report.

 

138. I have dealt with the genesis and nature of the 1989 works in paragraphs 98 to 108 above. For the reasons appearing there I am satisfied that in designing and carrying out those works Scarborough did not in any way rely upon the report. For the

same reasons I am equally satisfied that Scarborough did not act in accordance with the findings, opinions or recommendations contained in it, with the sole exception that the angle to which the slope was regraded was within the limits suggested by GEN - a matter of which no complaint is made against GEN.

 

139. By amendment an allegation of what was called in argument "negative reliance" was added to paragraph 11. It was, in substance, that had GEN advised clearly or explicitly that the need for further investigation was more urgent or important than the report conveys by the words "it may be prudent" that advice would have been followed. That is said to be an inference of law for which no separate facts are relied upon. I see no ground for any such inference; what Scarborough would have done had such advice been given must just as much be a question of fact as what in the event it did in relation to the advice which was given, and indeed my finding as to the latter is very germane to the resolution of the former, although it would not be decisive if there were other evidence to set against it.

 

140. There was no such evidence. No witness was called by Scarborough who had read the report when it was received. It passed through Mr Corrie's hands but he expressly said that he did not consider it. Mr Clements did not recall seeing it but thought that it would have been seen by Mr Hall. Mr Hall was available but not called. Mr Riby's first involvement with the site was not until April 1993 and he says nothing about the report. The only evidence bearing on the point tells the other way, that is to say it tends to reinforce rather than undermine the inference that Scarborough would have paid no more attention to the sort of recommendation postulated in this allegation than they did to those which they actually received. It is that of the meeting with Mr Davies, as summarised in paragraph 102 above. In that meeting, at which on Mr Clements' recollection the report itself was not to hand, Mr Clements questioned Mr Davies about a series of recommendations in the report, including those for further investigations and tests. The relevant point for present purposes is that, so far as appears from Mr Clements' account, he did not in his questions distinguish between the different recommendations as being more or less urgent or important, nor did he or Mr Davies apparently refer to the qualification imported by the words "it may be prudent" on which such weight is now placed, nor does he recall Mr Davies as saying that his reason for not following this advice was that it was only tentative, unemphatic, qualified or anything of that kind.

 

141. In view of the inevitable limitations on the weight which can be attached to any detailed aspect of that meeting I do not place great importance on that point, but for what it is worth it tends to confirm me, rather than otherwise, in the conclusion which I would have reached without it, namely that Scarborough has not established its allegation of "negative reliance". Since I have already rejected its "positive" counterpart it follows that Scarborough's claim against GEN fails.

 

142. I have deferred dealing with a submission by Mr Mauleverer, for GEN, which might logically have been taken first, as going to the scope of the duty of care, although it also bears on questions of the measure of damages and the foreseeability of the type of loss alleged. It arises from a principle stated by Lord Bridge in Caparo Industries Plc v Dickman [1990] 2 AC 605 at p 627:

 

It is never sufficient to ask simply whether A owes B a duty of care. It is always necessary to determine the scope of the duty by reference to the kind of damage from which A must take care to save B harmless.

 

In Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1997] AC 191 Lord Hoffmann, at p 211, adopted that statement and added that in the case before him the real question was the kind of loss in respect of which the duty was owed. Here, the argument goes, GEN's duty of care did not extend to protecting Scarborough against claims by the Plaintiffs, which were not contemplated by the contract nor a foreseeable consequence of its breach. Since Scarborough fail in any event on the issue of reliance I shall not canvass this further objection in detail, but in my view it is well founded, given the terms and context of GEN's contract.

 

143. In case I am held to have been wrong in my decisions on both of the above issues I shall briefly record my findings on the pleaded particulars of negligence, so far as still alive. They are numbered (i) to (xvi) but (v), (ix) and (xiv) were deleted by amendment and (iv), (vi), (viii) and (xvi) were abandoned in Mr Darling's closing submissions.

 

144. I shall consider the remainder in groups. Items (i), (ii), (iii) and (xi) are all variations on the theme that the report gave too much emphasis to the likelihood of a surface slip and ignored or gave too little emphasis to that of a deep-seated one. For reasons largely apparent from the discussion of this topic in paragraphs 91, 92 and 110 above there is nothing in these allegations. The report plainly advanced a deep-seated rotational slip as one of two possibilities, and if anything leaned in its favour, but rightly conveyed that the location of the slip surface had not been identified, as it could not have been from the site investigation as conducted or the data as obtained, of which no complaint is made. It is indeed somewhat ironic that this case should be persisted in in the face of insistent evidence from Mr Clements that Mr Davies was justified in relying on his own professional judgment that the 1982 and 1986 slips were shallow ones and from Professor Hanna that they were in his view to be classified as mud slides.

 

145. Item (xii) complains of failure to point out that the finding of slickensided shear surfaces in the mudstone indicated that movement had previously taken place there. This allegation also fails. For the reasons given in paragraph 89 above Scarborough's officers were perfectly capable of drawing this conclusion for themselves, or should have been, and if they were not they could and should have made the necessary enquiries. GEN were in my view entitled to assume that that was so.

 

146. The remaining items, (vii), (x), (xiii) and (xv), all arise out of the failure of the report to recommend further investigations more specifically or urgently than it did. I do not consider it necessary in this summary to make findings on each of the varied ways in which this allegation is put or on each of the specific investigations which it is said should have been recommended, but in my judgment this complaint is justified in principle. The importance of identifying the slip surface, if at all possible, before designing remedial works, is significantly underrated by the words "it may be prudent" and "try to". The report should at least have made the recommendations in the first paragraph of section 5.4 without those qualifications.

 

147. Had I not found that Scarborough's claim fails for other reasons, therefore, I would have found GEN negligent to the above extent.

 

148. I do not consider that the terms of the "general remarks" in section 5.5 of the report enable GEN to escape from that conclusion. I have taken them into account in dealing with Scarborough's breach of duty to the Plaintiffs in paragraph 112 above. They would, if necessary, assist GEN on reliance, but I have already found that Scarborough fail for other reasons on that issue, and they might also be relevant to the issue of contributory negligence, although I am not clear that they are pleaded as having that effect. It is clear from my findings in the action against Scarborough that some of the allegations of contributory negligence which are pleaded would succeed, but I do not propose at this stage to go into the detail of that, still less to make any consequential apportionment; if either party wishes me to do so an application can be made on the appointment to hand down this judgment. The same applies to any outstanding issues as to damages capable of resolution at this stage.

 

 

Frustration

 

149. Mr Symons submits that the effect of the 1993 slip was to discharge the lease from the First Plaintiff to the Second by frustration. I have not found where in the pleadings any issue in this regard is raised or joined, which is no doubt connected with the fact that it arises only in consequence of the procedural events described in paragraph 20 above. Nor have I found any reasoned submissions by Mr Darling on the subject. I therefore propose to deal with it in a provisional way only at this stage.

 

150. After many years of doubt whether the doctrine of frustration could ever apply to a lease it was held by the House of Lords in National Carriers Ltd v Panalpina (Northern) Ltd [1981] AC 675 that in principle it could, although very rarely and not on the facts of that case. Mr Symons says that this is one of those rare cases, and in support of that contention he points to the fact that two of their Lordships give something very similar, if not identical, as examples of the sort of situation in which frustration will occur:

 

Coastal erosion .... can, even in this island, cause houses, gardens, even villages and their churches, to fall into the North Sea .... (per Lord Hailsham at p 691B).

 

There are several places on the coast of England where sea erosion has undermined a cliff causing property on the top of the cliff to be totally lost for occupation: obviously occupation of a dwelling house is something significantly different in nature from its aqualung contemplation after it has suffered a sea change (per Lord Simon at p 700H0.

 

151. I see the force of that argument, and it is to be remembered that physical destruction of the subject-matter was the first recognised frustrating event in relation to contracts generally. I am therefore prepared to assume for present purposes, without deciding, that in an issue contested between lessor and lessee it would be held that the lease had been discharged by frustration, presumably at the date when it became apparent that there was no prospect of the continuation or restoration of a hotel on the site.

 

152. There is, however, no such issue. The lessor and lessee are co-plaintiffs and seek to obtain this finding as against the defendant, a stranger to the contract. Nor, on the other hand, is there any evidence that the Plaintiffs have or have not done anything in conveyancing, accounting or other respects to treat the lease as discharged by frustration or to affirm it. It is clear that the Plaintiffs are under common control, so that anything they may have done or may do is likely to be consensual rather than at arm's length.

 

153. Mr Symons was unable to refer me to any authority in which an issue of frustration has arisen or been decided otherwise than one joined at arm's length between the parties to the relevant contract. If I am to decide whether it can be litigated in the present circumstances, and if so with what result, I shall need further assistance. The points which occur to me as arising from first principles are as follows. As between the parties to a contract I see no reason why discharge by frustration should be imposed or withheld against their joint will. Certainly if there were a dispute as to whether it had occurred one would expect that that dispute could properly be settled by a binding compromise, which could be to the effect that the contract does or does not continue in force, and it is not easy to see why the position should be different if the parties reach the same accommodation without overt dispute. In many cases no third party would be affected or could complain, but where a lease is involved there could be consequences of the fact that the lease not only constitutes a contract but creates an estate in land. There could, for example, be a sub-lease. There are complex rules as to the circumstances in which dealings between the head lessor and lessee can affect the estate of the sub-lessee, and the effect of "consensual" frustration would have to be considered in relation to those rules. That might cast some light on the position of other third parties, such as the Defendant in this case. The question whether any agreement between the principal parties was bona fide might arise where third party interests were involved.

 

 

Conclusion

 

154. For the reasons given in paragraph 21 above that completes my consideration of the issues with which I propose to deal at this stage. The parties no doubt already had views as to what issues remain and how they should be resolved, but they may need to reconsider those views in the light of my findings. I have raised specific questions in paragraphs 78, 148 and 153 above. On all these matters and any others which any party may wish to raise there should be consultation in advance of the appointment for the formal handing down of this judgment and notes should be lodged of any agreed or disputed submissions.

 

 

 

2 October 1997 The above judgment was handed down. In response to the invitation to check the additional computations referred to in paragraph 54 Scarborough and GEN indicated that they accepted them. The Plaintiff, which had not asked for the full computations until a few days before the appoi

 

ntment to hand down, indicated that its expert's comments were not yet available. The judgment was therefore handed down subject to the reservation that a supplement explaining the computations might be required if they were challenged. Submissions on other matters left open in the judgment were adjourned.

 

 

30 October 1997 The Plaintiff's expert's comments on the above computations were received today. He does not challenge the methodology or the resulting figure of 46%. He draws attention to the simplifying assumptions already stated in the above judgment and to the fact that the computations deal only with the shearing force and not with the resisting force, as is also apparent on the face of the judgment. It is obvious from an elementary understanding of the physics of a slip circle that the ratio between the resisting forces developed on each side of any intersecting boundary will be very diferent from that between the corresponding shearing forces. Plainly it is only the latter which are the subject of the computations referred to in paragraph 54. The above judgment therefore requires no amendment or supplementation at this stage and is now released for publication with the added notes of 2 October 1997 and of today's date.

Index of Judgments