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

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		15 March 2001

Mr Justice Douglas Brown:

1. These two actions have been tried together. The Claimant, Mrs Mason and the Claimants, Mr Flaherty and Miss Hughes claim damages for negligence against the Coal Authority as statutory successor to the National Coal Board and the British Coal Corporation ('The Authority').
2. Mrs Mason alleges negligence in the preparation of the mining report by the Authority which she relied upon when entering into her initial purchase of 16 Best Street, Fenton, Staffordshire in 1986. She also claims that in reliance on a further negligent report in 1990 she invested in improvements to the property paid for by a re-mortgage.
3. Mr Flaherty and Miss Hughes allege negligence in the preparation of a mining report in 1984 which they relied on in entering into the initial purchase of 78 Birmingham New Road, Parkfield, Wolverhampton.
4. The claimants allege that the Authority did not disclose the existence of mine shafts which were a geological risk to their properties and which had a detrimental effect on the values of their homes.

Background to the purchases

Best Street

5. Mrs Mason and her then husband tendered to purchase Best Street in early 1956. Their Solicitors wrote to the area surveyor and minerals manager on 7 January 1986 asking for a coal mining report, enclosing a cheque for £14.43 in payment of the usual fee. On the original letter in handwriting are the words:

"Clear of Shaft number 29"

which is the relevant shaft in this case.

6. The prompt reply dated 13 January 1986 headed "Underground coal mining under and in the vicinity of the property" dealt with past, present and future mining, an absence of subsidence claims during the past three years and with open cast mining. No specific mention was made of mine shafts or adits.
7. The Masons proceeded to purchase the property with a 100% mortgage at the asking price of £11,500.
8. In 1990 they sought to remortgage the property and increase the advance. By this time, after consulting the Authority, the Law Society had issued guidance to its members including a list of questions to be put to the Authority known as CON 29 M. In answer to a question about mine shafts and adits "in the vicinity" of the property the mining report dated 6 August 1990 stated that:

"The property is clear of disused mine shafts and adits shown on our records".

9. By 1993 Mr and Mrs Mason had separated and wished to sell Best Street. The house was marketed at £26,000 in May 1993 and an offer was received to purchase the property for £25,000.
10. The purchasers' solicitors requested a mining report and by this time a revised Law Society questionnaire asked for information as to mine shafts and adits within 20 metres of the property. The mining report dated 13 October 1993 this time stated:

"Shafts and Adits. According to our records which may not be complete one shaft is situated under or close to the property. For your information I have indicated that shaft on the attached plan. Please note that due to the varying age, scale and accuracy of the plan information held by British Coal, plus projection difficulties, only approximate positions can be known.

British Coal has no record of what steps if any were taken at the time of abandonment to render the shaft safe or of any subsequent remedial treatment afforded thereto".

11. The mortgage lender approached by the purchasers was not prepared to accept Best Street as a suitable mortgage security in view of the proximity of the mine shaft and the purchasers withdrew from the transaction.

Birmingham New Road

12. Solicitors instructed by Mr Flaherty and Miss Hughes requested a search from the Authority and the reply dated 8 November 1984 stated:

"additional information: The property is clear of disused mine shafts and adits shown on our records".

Mr Flaherty and Miss Hughes purchased the property at near the asking price of £26,995.

13. In March 1993 they decided to sell Birmingham New Road and the property was marketed at an asking price of £55,000. Their next door neighbour, Mr Grewall, made an offer of £53,000. He wanted to buy the property for his daughter to live in. The reduction of £2,000 from the asking price reflected the cost of underpinning works needed to an extension and garage.
14. Mr Grewall's solicitors requested a mining report. That report dated 27 April 1993 showed that there were two shafts under or close to the property.
15. In the result the mortgage offer from the Building Society Mr Grewall had obtained was withdrawn.
16. The property was again put on the market at the reduced price of £35,000 with an indication that the property was unmortgageable.
17. No offers were received except from Mr Grewall who finally purchased the house for £40,000.

Historical Background

18. There are, unsurprisingly, a number of claims similar to these against the Authority. Mr Justice Garland gave judgment on 16 November 1998 in what is described as the lead case, Leppington v The Coal Authority. He succinctly summarised the relevant history beginning at page one of his unreported judgment. I cannot improve on that and gratefully incorporate that summary in this judgment.
History of Mining Reports

"The Defendant is the successor to the British Coal Corporation which was formerly known as the National Coal Board. One of the Coal Authority's functions is to maintain records of all past and current coal mining operations and to provide information, for which a fee is charged, to, amongst others, intending purchasers of property in mining areas past or present. Some records have been kept from early times in order to comply with mining leases and in 1850 there was legislation for keeping mine plans but without any obligation to deposit them. It became obligatory in 1872 to prepare and deposit abandonment plans to guard against the risk of flooding from abandoned workings. However, such plans were not prepared to any common standard or scale and it was not until the Coal Act of 1911 that mine owners were required to keep accurate plans on a scale of not less than 2 chains to 1 inch (1:1584) revised at not more than three-monthly intervals. The Authority by its staff of mine surveyors transfers the information contained in old maps and plans onto 1:2500 Ordnance Survey maps using a form of adjustable projection which can be corrected for scale, paper shrinkage and distortion. However, there may be inaccuracies in old maps, the original datum points may have disappeared, the alignment may be suspect due to the natural shift in Magnetic North, and, as Mr Turner FICE on behalf of the Plaintiff stated:

"It is not uncommon to find the same shaft plotted in a number of places when its position has been derived from more than one mine plan. In fact on a number of occasions it may not be possible to decide if the record is describing one shaft or a pair of shafts in close proximity. Sometimes a mine shaft shown on a mine may in fact relate to an inter-seam shaft with no physical surface expression. In my experience it is not uncommon for different interpreted positions to differ by as much as 5 metres".

19. Like Mr Justice Garland, I was taken to the main events and documents since 1976. In 1976 the National Coal Board issued standing instructions in this field introduced by these words:

"It is the policy of the Board that within the guidelines set out in this instruction the fullest possible information shall be provided in reply to all inquiries about their mining and other operations that could affect the owners of the surface or others having interests in it".

20. Up to 1989 there was no standardised form of approach to be used by solicitors in making mining inquiries. It was common for solicitors to write letters such as those written in the instant case.
21. In 1989 following a suggestion by a House of Commons Trade and Industry Committee the Law Society, after detailed discussions with Authority, introduced a standard Coal Mining Search Standard Inquiry known as CON29M which identified seven separate matters which should be the subject of inquiry. These included past, present and future underground coal mining and shafts and adits.
22. In relation to past, present and future mining, suggested questions to be asked were:

(a) Is the property within the zone of possible physical influence (my emphasis) on the surface of past coal workings recorded on the plans of such workings in the possession of British Coal.

(b) If yes please indicate the seams involved and the approximate place of working. In respect of all three the phrase "the zone of possible physical influence on the surface" was included.

However, under shafts and adits the questions were:

(a) Are there any shafts, adits or other entries to coal mine workings in the vicinity of the property ...my emphasis) recorded on the plans in the possession of British Coal.

(b) If yes please supply any relevant information in the possession of British Coal regarding any such shafts, adits or entries including where available details of any treatment carried out.

23. There was agreement between the engineering experts in this case (Mr Turner for the Claimants and Mr Brown for the Authority) that because the position of abandoned shafts and adits might be difficult to ascertain with accuracy and the effects of the collapse would depend on diameter of the shaft, its depth, the surrounding terrain and the angle of repose after collapse, the phrase "in the vicinity of " was itself imprecise and gave rise to uncertainty.
24. This was considered after CON29M had been in use for about two years and after further discussions with the Authority, the Law Society introduced an amended form of questionnaire. Under the first three headings the same question was asked as before but under shafts and adits the question at 4 (a) became:

"Are there any shafts, adits or other entries to coal mine workings within or within 20 metres of the boundary of the property recorded on the plans in possession of British Coal?"

25. This revised question 4 (a) was in operation in 1993 when both Mrs Mason's respective purchaser's solicitors and those acting for Mr Grewall requested mining reports from the Authority.

The Issues

26. In Leppington Mr Justice Garland said this at page 25:

"The argument really amounted to this: "vicinity" whether on its own or by synonyms such as "neighbourhood" or "close to" has no graspable meaning unless one turns to the reason for using the word. To say "sufficiently close to affect a value" begs the question as to why the value should be affected. It is only affected if there is a geological risk, or at most, a not unreasonable perception of risk to the stability of the property – the whole plot, not the structure only. In my judgment, the uncertainty involved in plotting a shaft or adit accurately is an important factor………… However, even taking the possibility of taking plotting error into account I am compelled to the view that "vicinity" can only be reduced from uncertainty to bearing a sufficiently clear meaning by consideration of the risk of physical instability of any part of the property. As I have already indicated, whether that risk is considered in direct physical terms or indirectly by its impact on the open market value of the property, a word incapable of having a precise meaning has to be given a sufficient degree of precision in this way if it is to found a duty of care. That some people, whether purchasers, lenders or their insurers might have been deterred by a shaft or adit that posed no possible threat to a property I do not doubt for one moment, but how far away does a shaft or adit have to be to constitute a market deterrent without in fact being a geological risk?"

Both Mr Wood QC for the Claimants and Mr Grime QC for the Authority, agreed that I should follow Mr Justice Garland's approach.

27. It is also agreed, with one qualification, that the issues for decision are: one, were the answers given by the Authority in the two mining reports in the case for Best Street and the one report in respect of Birmingham New Road incorrect in that the shaft to the Southeast subsequently identified in the Best Street mining report and the shaft to the West subsequently identified in the Birmingham New Road mining report were (or might be) in the vicinity of the two properties as defined by Mr Justice Garland in Leppington, namely within such a distance of the properties that they posed a physical risk? Mr Grime sought to qualify that issue by the deletion of the words "or might be". Two: if the answer to issue one is yes, were the answers given by the Authority in reply to the Claimants respective enquiries given negligently?. Three, if the replies were given negligently, what loss of the Claimants incurred in reliance on the answers.

Case for the Claimants

28. The Claimants do not criticise the "'best plot'" assessment. Their complaint is that when reports subsequently came to be prepared in relation to particular properties the relevant entries taken off the information transferred to the 1:2500 Ordnance Survey Map should not have been treated as if those entries were absolutely accurate giving the impression that they were locations which had been established with absolute accuracy by physical survey.
29. The Claimants also make the case that the Authority were plainly aware that their shaft records were not accurate. Their own later reports repeatedly used wording such as:

"Due to the varying age, scale and accuracy of plan information held by British Coal, plus projection difficulties, only approximate positions can be known".

Mr Leighfield, formerly a senior Mining Surveyor with the Authority, had no reason to disagree with Mr Brown's view that where the search record is an abandonment plan in most cases a shaft is located physically within 8 metres of the 'best plot' position.

30. Mr Pennington, another Mine Surveyor, thought that the position of a located shaft could be 8 metres in distance from the 'best plot' position.
31. Only Mr Dearden, another Mining Surveyor, disputed this and said that in his experience actual shafts were found pretty well in the position of that identified as the 'best plot' position.
32. This departure, or location error as it is called, was well known to the Authority and its officers in 1984 and 1986 when the mining reports in this case were provided.
33. The Claimants' case is that the agreed expert evidence here is that consultant mining engineering firms such as Mr Brown's and Mr Turner's would have taken location error into account in preparing reports for clients and they say that it is plain here on the evidence that the Authority or its predecessors should not merely have reported what was shown on their plans but using their engineering judgment provided some information as to location error. It was accepted by the Authority's witnesses that there would be no difficulty or extra cost involved in providing information as to location error.
34. Finally, the Claimants rely on Mr Brown's opinion in paragraph 1.5 of his report:

"If however the court finds that departure is an issue that BCC should have taken into account, then in such circumstances BCC failed to provide satisfactory reports at the material dates".

That view was expressed in the same terms in both the Best Street and Birmingham New Road reports.

35. Before coming to the Authority's response I must refer to the circumstances of each property separately in more detail.

Best Street

36. Until 7 February 2001 both Mr Turner and Mr Brown reported on the basis that Shaft 29, the 'best plotted location, was possibly (Mr Brown) and certainly (Mr Turner) in the position of a shaft which collapsed in 1965. Part of the information considered by Mr Turner and Mr Brown was the report of Wardell Armstrong (Mr Brown's firm) in March 1994 to the solicitors acting for Mr and Mrs Mason which said after referring to three abandonment plans:

"The source documents provide a positive record of a former mine shaft in the general position referred to by BCC. The nature of the source document prevents a definitive position of the mine shaft from being identified. However our "'best plot'" interpretation indicates it to be situated some 10 metres to the West of Best Street beneath an adjacent terraced property. This position accords closely with the approximate position shown on the plan accompanying BCC's mining report".

"Having made new allowance for the potential error in the positioning of the shaft considering the possible area of ground loss in the event of a collapse, it is considered that part of the property is situated at the limit of or just within the zone of risk".

37. There was also in evidence a copy of the Authority's Register of Disused Shafts on which the three abandonment plans referred to are identified and hand-written remarks on a schedule now known to be in Mr Pennington's handwriting appear:

"Ran in March 1965 8 foot 6 inches diameter, 10 feet deep, filled up with pit dirt".

38. Both experts thought that this shaft collapse provided support in differing degrees for the 'best plot' location.
39. Both considered the three memoranda by the Authority's staff between March and May 1965 dealing with the collapse and infilling of an old shaft at the junction of Best Street and Dennis Street, Fenton. Beyond that general description it is not possible from this correspondence to identify the site of the shaft collapse with any accuracy at all.
40. However the Area Chief Surveyor's memorandum of 24 March refers to a news item in the Evening Sentinel dealing with the shaft collapse. Very recently, the Authority's solicitors gained a copy of that article. Its contents gave rise to doubts as to whether the incident could in fact relate to Shaft 29 and after a further search of the mining records office and scrutiny of a plan, the plan clearly showed that the shaft in question was on spare land adjoining 4 Dennis Street. This was clearly not Shaft 29 and was a previously unrecorded mine shaft. Accordingly the Authority's solicitors wrote to the Claimant's solicitors on the 7 February 2001 informing them that:

"In our clients opinion collapse reported in 1965 is not related to the shaft subject to these proceedings".

41. In the ordinary way it would not be necessary to refer to the 1965 collapse at all save to say that in evidence both experts disregarded it. However the position changed when Mr Pennington gave evidence. Mr Pennington is an Assistant Manager in the Mining Reports and Subsidence Damage Office of the Authority. From February 1981 he worked on mining reports in the North Staffordshire area. The first report on 16 Best Street in January 1986 was prepared by his senior colleague Mr Jervis, who trained him. Mr Pennington prepared the second report on 6 August. He also prepared the third report dated 13 October 1993 which referred to one shaft within 20 metres of the property. In his written evidence he made it clear that he took into account the plotted position of the shaft, any information on the likely relative thickness of the main ground in the area, the source information of the shaft and the likely shaft diameter. In relation to the 1993 report his source records were the abandonment plans.
42. However, when he gave evidence he said to the surprise if not the astonishment of both parties that his sole source of information was the correspondence in relation to the 1965 collapse. He thought it very probable that Mr Jervis had used the same material. No explanation for this fundamental change in his evidence was given save that it was some time since he made his statement in February 1999. He had now seen the correspondence. No supplemental witness statement was prepared dealing with this.
43. Mr Wood said that if Mr Pennington's recollection now was correct then his preparation of the report was not just negligent but verging on the reckless. It was impossible to tell from the correspondence in 1965 where this shaft was, and if he is right, he assigned a position for it entirely at random. Again if he was right, it was a remarkable commentary on the 'best plot' approach which he readily cast aside and replaced by another exercise.

Birmingham New Road

44. It is now known that there are two shafts for which 'best plot' positions can be given. One, the easterly shaft, is situated more or less under number 78. The other, the westerly shaft, assuming the shaft to be at the 'best plot' position, is in the corner of the next door garden.
45. It is common ground that the failure to give information about the easterly shaft in 1984 was not negligent. It was not known and could not have been known to the Authority until 1987 when a Mining Surveyor employed by Wolverhampton Metropolitan Borough Council sent a copy to the Authority of an old estate plan found by him at Dudley Library.
46. The westerly shaft is shown on the First Edition Ordnance Survey plan and this position has been accepted as the 'best plot' position for this shaft.
47. In summary, to use Mr Brown's definition, the zone within which the area at risk would be expected to be confined, in the case of Best Street includes part of the house and most of the garden of 16 Best Street and in the case of the westerly shaft at 78 Birmingham New Road, the building itself is not within that area but a portion of the garden is.

The Defendant Authority's case

48. Mr Grime stressed that the Authority were providers of information and not advisors. He said the significance of that difference could be seen from the speech of Lord Hoffman in Banque Bruxelles Lambert SA v. Eagle Star Insurance Company Ltd 1997 AC 191 at 214:

"The principal thus stated distinguishes between a duty to provide information for the purpose of enabling someone else to decide upon a course of action and a duty to advise someone as to what course of action he should take. If the duty is to advise whether or not a course of action should be taken, the adviser must take reasonable care to consider all the potential consequences of that course of action. If he is negligent, he will therefore be responsible for all the foreseeable loss which is a consequence of that course of action having been taken. If his duty is only to supply information, he must take reasonable care to ensure the information is correct and, if he is negligent, he will be responsible for all the foreseeable consequences of the information being wrong".

49. The Authority were not giving any warranties. Their duty was to be accurate in making the statements they made.
50. Mr Grime said the standard of care could be derived from the judgment of Mr Justice McNair in Bolam v. Friern Hospital Management Committee 1957 1 WLR 581 at 587:

"A man is not negligent if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view".

51. Mr Grime submitted that this was a case where different engineers or others may take differing views of the risk of collapse and the factors relevant to it.
52. Mr Grime admitted that the Authority were suppliers of information based on a judgment whether from the records or other material in that position there were mining features that posed a physical risk to the property (land and buildings).
53. The sources of material, and the list was possibly not exhaustive, to be used in answering enquiries were mining records in their possession, general mapping information such as the Ordnance Survey, specialised mapping information such as the Geological Survey Maps, other information as to mining features such as reports about discovery or position of mine features or records from third party sources such as the estate map showing the easterly shaft at Birmingham New Road, the knowledge and history and practice of mining in the area and a knowledge of ground conditions and other local factors.
54. The standard of care involved using such care as would be expected from a public body processing large numbers of enquiries quickly and at modest cost and wishing neither to cause unnecessary alarm or blighting property nor to expose purchasers to physical risk.
55. Evidence from Authority's witnesses: first was Mr Leighfield. He was not aware of any instruction from the Authority to surveyors that they should take into account location error. There was no contingency for a buffer zone.
56. Mr Pennington: If the 'best plot' circle did not touch the property concerned then if they were a metre or two apart he would consult Mr Bowie or Mr Jervis and either disclose or not. If more than 5 metres apart very few were disclosed during the 1980's.
57. Mr Dearden: If the circle did not quite touch the boundaries of the property then the search was clear.
58. Mr Brown's evidence on this is contained in paragraphs 5.6, 5.7 and 5.8 of his report:

"As Consulting Engineers, when we are instructed by a client to report on a mine shaft, it is incumbent upon us to take into account issues of departure through our awareness of such inaccuracies and the impact they can have on the actual position of a shaft. As we are aware of such issues through our experience of searching for and locating shafts, it can be argued that it is part of our duty of care to report on such matters. However, in the case of British Coal it is perhaps not so clear whether they would have been obliged to have regard to "departure".

"To assist in determining whether British Coal were obliged to speculate with regard to departure, the following points are raised:

•    The 'best plot' position constitutes a plot that has been derived from the best available information.

•    'Best plot' constitutes the 'mean' position and the real position of the entry is equally likely to be further from the property than it is likely to be closer.

•    Does the standard question regarding mine entries imply that a singular (most likely) position requires consideration?

•    Some source records are particularly imprecise and the interpretation in the positioning of an entry could vary by as much as 50m to 100m.

•    BCC were obliged to consider mine entry positions on 'plans' in their possession. Such plans would not by themselves necessarily provide for an assessment of 'departure'.

"In considering all of the above it seems that if BCC are asked to consider departure, different individuals within the organisation are being asked to make subjective decisions about accuracy. Whilst that may be part of, say, a Consultant's professional duty of care, it is debatable if it is a requirement of an organisation which is simply required to report on mine shafts based on plans in their possession.

59. Mr Turner used software to carry out a Monte Carlo assessment and Mr Brown was critical of this. However, as Mr Turner was not suggesting that the Authority should have used this method in the 1980's, it calls for no further reference in this judgment.
60. Mr Grime also submitted that in the case of Best Street the first mining report being silent as to the presence or absence of shafts, no information was given, accurate or inaccurate, and the Claimant's case falls at the first hurdle.

Decision

61. The Bolam test relied upon by Mr Grime is of no assistance in this case. Mr Grime did obtain from a number of witnesses answers that showed that differences of opinion as to the extent of the zone of physical influence of a shaft were within the bracket of reasonable disagreement. The evidence and the literature fully bears this out.
62. That however, is not the answer to the right question. That question is whether the Authority's policy or the way it was interpreted was right in not taking into account departure or location error when providing mining reports?.
63. The answer to that question is that they were wrong and negligently wrong not to take into account location error.
64. Those providing the clear reports in this case plainly ignored the Authority's standing instructions as to disclosure of information given in 1976 paragraph one of which reads:

"It is the policy of the board that, within the guidelines set out in this instruction, the fullest possible information (my emphasis) shall be provided in reply to all enquiries about their mining and other operations that could affect the owners of the surface or others having interest in it".

Paragraph 3 includes this instruction:

"Brief details shall also be given on past mining and the enquirer's attention shall be drawn specifically to any old shallow workings or old shafts whether recorded or suspected ...my emphasis)

65. Mr Grime's argument that the first Best Street report carries no liability because it is silent on the presence or otherwise of shafts, is plainly wrong. The author of the report in writing 'clear of shaft 29' clearly regarded the presence of shafts as part of the enquiry and the standard words 'clear of shafts or adits' was obviously omitted by inadvertance by its employees. In the 1980's and no doubt before, when solicitors made enquiries and sought mining reports they were seeking information on all aspects so that they could advise their clients on the biggest financial outlay they were likely probably to make, namely the purchase of a house. In the case of Birmingham New Road that was made clear beyond doubt by the statement "we act on behalf of the proposed purchasers of the above mentioned property".
66. It does not assist the Authority to argue that until the amended question in CON29M in 1991 introducing a 20 metre limit they were under no duty to qualify the meaning of the word 'clear'. These were, it is true, reports made in large numbers speedily and for a modest charge compared with the hundreds of pounds a specialist mining geology firm would charge. The giving of a more cautious report based on the possibility of location error was easy to do and added little if anything to the cost of giving the mining report. The giving of statements such as "the property is clear of disused mine shafts" was positively misleading and gave an impression of accuracy which was not justified.
67. The Bolam test has no application since the Authority were in a unique position and could not be compared with expert mining consultants.
68. I have carefully considered Mr Brown's contribution to the 'debate' as he calls it paragraph 5.7 and 5.8 of his report. There he contents himself largely with posing questions, rather than answering. Mr Wood in his final submissions provided some answers.
69. Mr Wood's answer to some of these questions which I think is plainly right is that the Authority's surveyors should have answered on the lines "We do not know where the shaft is but on the basis of our records you should investigate further before buying property". Further, while it is true that some source records are particularly imprecise and interpretation in positioning of an entry could vary by as much as 50 metres to 100 metres, that does not justify the Authority in saying that 'we will tell you nothing' or make a positive averment that 'the property is clear of shafts'.
70. The approach of the Authority was far too restricted and did not take into account or take fully into account the effect of a shaft collapse not just on one property but on others connected with it such as terraced property. Nor did they give attention to the risks involved in a shaft failure in gardens. The risk may be a small one but the consequences if the risk becomes a reality could be disastrous. The problem with mine shafts as the experts agreed, is that any shaft must be assumed to present a risk whether it is filled or not. There are many variables in the subsoil condition. There may be water courses or drains. Very often disused shafts were filled down to the level of a wooden staging which in time would rot. No assumption could be made about the stability of any mine shaft.
71. Mr Pennington's evidence is troublesome. He was obviously an honest witness doing his best to recollect events many years ago. So adamant was he that he only had regard to the correspondence file that despite his witness evidence, I think it probable that is what he did. In those circumstances his location of Plot 29 and his statement that the property was clear of disused shafts and adits were plainly negligent, as the correspondence gave no clue as to the whereabouts of the collapsed shaft.
72. In the result on that basis in the case of Best Street and on the basis originally relied on the Authority must be held liable for dogmatic statements of absence of risk made at a time when they knew from their own records they were not wholly reliable.

Damages

73. In the case of Best Street damages have been agreed in the sum of £14,350 inclusive of interest.
74. The position with Birmingham New Road is not so straight forward. Mr Paul Evans, a Chartered Surveyor with over 14 years experience in valuation of residential property to the west of Birmingham City Centre with experience of preparation of reports on properties in a coal mining area and sales of similar property, in his original report for the Claimants put the value of the property without disclosure of the mine shafts both easterly and westerly in November 1984 as £20,000 and with disclosure of those shafts, £9,000 giving a claim for damages without interest of £11,000.
75. Mr Wood argued that although the easterly shaft had to be disregarded for negligence purposes, it had to be taken into account for valuation purposes. Mr Grime disputed this.
76. Mr Evans was asked very recently to prepare a supplementary report dealing with the valuation on the basis that only the westerly shaft was taken into account. His view was that a plot of the westerly shaft within 20 metres of the boundary of the property would not render the property unmortgageable but there would be a reduction in the price the purchaser would be willing to pay, a reduction which he expressed as being between £16,500 and £18,000 giving a damages figure of between £2,000 and £3,500.
77. When he was cross examined he was shown a report prepared for Mr Flaherty and Miss Hughes by Johnson Poole and Bloomer, Geotechnical Land and Mineral Resource Engineers, who work in the same field as Mr Turner and Mr Brown, which contained the statement that:

"The westerly of the mine shafts is considered to be in excess of 20 metres from the building in question and as such presents no risk of structural damage to the above property".

78. Mr Grime obtained an answer in cross-examination from Mr Evans that if this report had been seen in 1984 the value of the property would probably not have been affected. Even with the view contained in that report the value might depend on properties available in the area. Mr Grime submitted that in those circumstances the Claimants had not made out a case for anything other than nominal damages.
79. In my view the Johnson Poole and Bloom report should not, when fully explained, have caused Mr Evans to give the evidence he did. The report makes no allowance for location error. Crucially, it is confined to damage to the structure of the house and does not contemplate or advise on a collapse involving the garden. On that basis I am not assisted by Mr Evan's answer in cross examination.
80. I am not persuaded that the loss should be calculated by reference to two shafts. When the negligence is confined to one shaft it does not seem to me to be logical to base an award of damages on two shafts. Doing the best I can to gauge how the market would have reacted in 1984 if the risk from the Westerly shaft had been revealed I assess the damages at £2750.