UPPER TRIBUNAL (LANDS CHAMBER)

UT Neutral citation number: [2013] UKUT 0388 (LC)

UTLC Case Number: LCA/55/2013                                                                                         

                                                                             

                                                                             

 

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

 

 

COMPENSATION – mining subsidence – whether damage to residential property caused by nearby mining activities or whether long standing unrelated defects – burden of proof - whether compensating authority liable to make payment pursuant to section 38 of the Coal Mining Subsidence Act 1991 – Compensation determined at £38,715.39

 

                               IN THE MATTER OF A NOTICE OF REFERENCE

 

 

BETWEEN                                 MRS VIOLET ANN HICKS                                 Claimant

 

 

                                                                           and

 

 

                                                       THE COAL AUTHORITY                         Compensating                 Authority

 

 

 

 

re: Birchley Hall Farm, Windmill Lane, Corley,

Coventry CV7 8AN

 

                                                       Before: P R Francis FRICS

                                                                               

Sitting at: 43/45 Bedford Square, London WC1B 3AS

 

On: 16 & 17 April 2014

 

Richard Sage instructed by DAC Beachcroft Claims Ltd, Solicitors of Bristol, for the claimant

Michael Wright, solicitor of DLA Piper UK LLP, Sheffield, for the compensating authority

The following decisions were referred to in argument:

 

LB Haringey v Hines [2011] HLR 6

Re H [1996] AC 563

Loftus-Brigham v LB Ealing [2003] EWCA Civ 1490

 

                                                                    DECISION

Introduction

1.             This is a subrogated recovery claim made by Mrs Violet Ann Hicks (the claimant) on behalf of herself and Allianz Insurance PLC, her buildings’ insurers, for uninsured and insured losses in respect of subsidence damage to Birchley Hill Farm, Windmill Lane, Corley, Coventry CV7 8AN (the subject property), alleged to have occurred within the meaning of section 1 to the Coal Mining Subsidence Act 1991 (the 1991 Act).

2.             The original claim, set out in a statement of case appended to the Notice of Reference dated 8 April 2013, was for £252,848.64 relating to insured (£63,701.71) and uninsured (£189,146.93) losses alleged to have occurred as a result of significant structural and cosmetic damage to the farmhouse and outbuildings in 2007, coincident with the occurrence of long-wall mining activities at a point some 100 metres to the north-east.  The claim was for the cost of investigations, repairs, redecoration and associated expenditure together with alleged diminution in value to the property and distress and inconvenience.

3.             By the date of the hearing a number of issues had fallen away, including alleged damage to outbuildings, diminution in value, stress and inconvenience and any common law remedy that may have been sought in connection with alleged loss of rights of support.  The claim was thus reduced to £87,936.64, the remaining component parts of which are summarised under “issues” below. 

4.             Mr Richard Sage of counsel appeared for the claimant and called Mrs Hicks who gave evidence of fact, and Mr Nick Huband BSc (Hons) MICE FGS, an Associate with William J Marshall & Partners, Consulting Engineers and Architects of London SW1 who gave expert evidence in relation to the alleged structural damage.   An expert report from Mr T I Longworth MSc (Eng) CGeol CSci a consultant with Geo-Surv Ltd was also produced, but he was not called.

5.             Mr Michael Wright, a solicitor with DLA Piper LLP appeared for UK Coal and called Mr Clive Fleetwood, the subsidence claims manager for UK Coal Ltd who gave evidence of fact and Mr Nigel Hindley BScEng (Hons) C Eng FI Struct E a consultant Chartered Structural Engineer of Sheringham, Norfolk who gave expert evidence in respect of the alleged damage.

Facts

6.             The parties produced a brief statement of agreed facts and issues from which, together with the evidence, my inspection of the subject property on 29 April 2014 and the helpful closing submissions received by 9 May 2014, I find the following facts.   The subject property comprises a detached two storey farmhouse located in a pleasant rural position at the end of a country lane on the edge of Corley, a village lying about 4 miles to the north-west of Coventry.  The original part of the house is believed to have been built during the 16^th or 17^th century, but in 1974 the whole of the exterior was clad with a modern brick skin and re-roofed with modern concrete interlocking tiles.  At the same time a former single storey rear outrigger was partly re-constructed and enlarged to provide a two storey extension.  In about 1996 the wooden window frames throughout were replaced with modern uPVC double glazed units.

7.             A long-wall system of coal mining from Daw Mill Colliery took place in the vicinity in accordance with a licence granted pursuant to Part II of the Coal Industry Act 1994, commencing in 2004 with the “301’s panel” which lies about 300m to the south-west of the house and runs in a north-west to south-east direction.  There is no suggestion that this seam caused any damage to the subject property.  In 2006-2007, mining occurred within the “31’s panel” which was a seam of about 4.5 metres in height that extracted coal at a depth of approximately 750m below ground level.  At its nearest point the seam, which ran parallel to the 301’s panel, was a horizontal distance of about 110m to the north-east of the farmhouse.    The colliery closed in February 2013, and responsibility for the claim passed to the Coal Authority in July of that year.     

8.             On 9 August 2007, the claimant via her then advisers, Paxton-Brown, served a Damage Notice on UK Coal, pursuant to section 3 of the 1991 Act.   Although it initially contended that the Notice was invalid, in the light of the reduced nature of the claim and the removal as claimants of Mr Ivan Hicks and Mr Joseph Lewis Hicks, (who were originally joined with the claimant in respect of the Damage Notice)  UK Coal  no longer holds that to be the case.  By a letter of 15 May 2009, UK Coal gave notice that it did not consider itself to have a remedial obligation in respect of the subject property.

9.             Notice of Reference to this Tribunal was lodged by DAC Beachcroft Claims Ltd of Bristol on 8 April 2013.

Issues

10.         The issues between the parties can be summarised as follows:

1.            When the damage to the property occurred

2.            The cause of said damage

3.            Whether the respondent authority is liable to make any payment pursuant to s.38               of the 1991 Act

4.            Whether the respondent is liable to reimburse the following sums paid by the                     claimant’s insurers:

                           Sutton Civil Engineering                                            £30,150.00

              Internal redecorations (cash payment made)              £10,952.40

              Terrazzo flooring to parts of ground floor

                           (cash payment made)                                                  £15,720.00

              GAB Robins (Loss Adjusters)                                                £  6,219.31

              Ian Trotter (Monitoring)                                              £     481.75

              PC & D Ltd (Site investigation works)                      £     178.25

                                                                                                               £63,701.71

5.           Whether the respondent is liable to pay the following sums to the claimant:

              McBride & Bailey (Surfacing works)                         £13,021.54

              McBride & Bailey (Land drains)                                £  5,472.00

              Leigh Roofing Co                                                       £     784.11

              Wardell Armstrong                                                     £  2,162.95

              Paxton Brown                                                             £  2,794.33

                                                                                                               £24,234.93

              TOTAL                                                                       £87,936.54

The claimant’s case

11.         Mrs Hicks is currently the sole freehold owner of the subject property and lives there with her husband and son.   In her witness statement, she said that when she and her husband purchased it, together with about 40 ha (99 acres) of land in May 1973, the substantial farmhouse was in need of complete modernisation.  These works were undertaken between then and December 1974 when they moved in.  She said that despite the need for refurbishment, there was no significant damage to any part of the farmhouse (it being of solid construction with walls “two foot thick”) and she could not recall any damage occurring prior to noticing severe cracking in May 2007. 

12.         Indeed, she said, they had a re-valuation for mortgage purposes carried out by Bristol & West Building Society in connection with the transfer of part of the property to their two sons in August 2001.  No notable defects or crack damage were reported upon, and the only potentially adverse comment from the valuer was that some general updating was required.

13.         The cracking got progressively worse during the latter part of 2007 and early 2008, Mrs Hicks said, and included cracks to the brick walls on all external elevations and to internal plaster finishes.  Doors failed to close properly, and severe cracking occurred to the solid floors in the kitchen, lounge and cold-store areas.  Cracks were also noted to the driveway and parking area outside.  As a result of their concerns, the Hicks notified their insurance company and appointed Paxton Brown, Chartered Building Surveyors of Nuneaton, to carry out an inspection.  They advised that the damage was caused by the mining activity at Daw Mill Colliery, and a Damage Notice was submitted on Mr & Mrs Hicks’ behalf on 9 August 2007.

14.         Mrs Hicks went on to explain that several representatives of UK Coal carried out inspections in October 2008, March 2009 when a crop failed due to damaged land drains and May 2009 when flooding occurred within the cellar.   They also undertook a “tilt” survey.   She said that whilst Mr Clive Fleetwood of UK Coal agreed in a letter dated 20 October 2008 that the Authority would pay for the cost of repair to part of the lane leading to the property, and repair the storm-water drains that had caused the cellar flooding, they refused to accept responsibility for the damage to the house. She said that a quote had been received from McBride & Bailey for £13,021.54 for resurfacing a 700 metre section of the drive (as part of a much wider quote extending to other works which were not being claimed for) and they also incurred costs of £4,500 in respect of the drains [in fact, the invoice was for £5,472.00].  As to any other damage, it was suggested to her by the Authority’s representatives that it was of long standing and had occurred many years before the mining took place, however she insisted that there was no cracking evident prior to 2007.   It was not just her property that was affected, she said, and there were many houses within the village that had also suffered.

15.         Professional fees totalling just under £5,000 had been expended, and emergency repairs were carried out to the farmhouse roof (prior to the works authorised by the insurance company), and Mrs Hicks produced an estimate from Leigh Roofing for £784.11 for works required to ridge and “Rosemary” tiles.  

16.         In cross-examination, Mrs Hicks explained that, in respect of the cash payment made by her insurers for redecoration (£10,952) and terrazzo flooring (£15,720) these sums had been derived from quotations received.  However, the redecoration which included plaster repairs, re-wallpapering and painting was actually undertaken by three other contractors who were paid cash-in-hand, and she did not have their invoices available. She said she thought the total charged by the three decorators added up to what she had received.  Mrs Hicks acknowledged that whilst she had also received payment of £15,720 for replacement terrazzo flooring, no works had been undertaken to date because “the cracks are still going on, and there will be a huge amount of upheaval to get the works done”.   Pressed on the question of timing, Mrs Hicks insisted that the extensive cracking to the external brickwork, and to internal walls and ceilings, together with those to the floors, had not been evident before 2007.  It was not just that she had not noted them – they were simply not there. 

17.           Regarding the drainage works, it was put to Mrs Hicks that Mr Fleetwood had only accepted liability for two small breaks in the drain, rather than the 54 metres of works that were claimed for.  However, it was submitted in closing that Land Drainage Solutions, who inspected the work on behalf of insurers, advised that the  contractors who had been appointed by Mr Hicks were “undertaking a proper repair”, and there was no suggestion that unnecessary work was being carried out.  Mrs Hicks accepted that the alleged damage to field drains was not something that was being claimed for, and neither was underpinning of the farmhouse which had been quoted by Sutton Civil Engineering Ltd at around £48,000.  In connection with the repairs to the driveway, Mrs Hicks accepted that nothing has so far been done to effect the repairs.  In respect of the claim for roof repairs in the sum of £784 in accordance with the quote received from Leigh Roofing, Mrs Hicks admitted that that firm did not carry out the works, but someone else did them, for which they received cash.   Regarding the claim for the replacement of the oak beam in the dining room, Mrs Hicks insisted that although it had shown signs of cracking before 2007, it was not until then that it actually split.

18.         Asked why the original claim for damage to the outbuildings had been dropped, Mrs Hicks said that she and her husband had initially thought they were covered under her buildings insurance policy, but were then advised that they were not.  The damage to those, she said, was even worse than to the house, and she did not accept the suggestion that the claim for damage to the farmhouse was an opportunistic one pursued when it was realised the outbuildings were not covered.    

19.         As to why the initial damage notice had been submitted by Paxton Brown, Mrs Hicks said that they had been initially instructed as they were acting for other affected parties in the Corley Moor area. They acted for her between 2 August 2007 and 14 December 2009.  She said that DAC Beachcroft had been subsequently appointed to manage the claim by her insurers, and, in respect of their initial letter advising UK Coal of their involvement and setting out their understanding of the situation as it stood at 25 May 2010, she said she did not know why they had said crack damage was first discovered in summer 2006.  She reiterated that it was early 2007 when the problems first became apparent.  

20.         As well as the input of Paxton Brown, the claimant and her husband engaged the services of Wardell Armstrong who also inspected the property, researched mining records, prepared subsidence calculations, produced a report and attended a meeting with UK Coal within the period November 2009 to January 2010.  The fees of Paxton Brown and Wardell Armstrong are sought within the claim.

21.         Mr Longworth was then, in January 2010, instructed by the claimant’s insurers, via their advisors DAC Beachcroft Claims Ltd, to prepare a report giving his professional opinion as to whether or not the damage had been caused by coal mining activities, the nature of the damage and what characteristics of it were likely to be caused by mining subsidence.   He was also asked to advise upon UK Coal’s liabilities under the Coal Mining Subsidence Act 1991.  His report dated 5 May 2010 and a rebuttal report dated 6 September 2010 commenting upon Mr Hindley’s evidence was before me, but he was not called - the insurers having then turned, on 7 October 2010, to Mr Huband.

22.         In summary, following his investigations, Mr Longworth concluded in his report that the majority (but not all) the damage to the farmhouse was characterised by in-plane tensile and shear cracking to external and internal walls and ceilings consistent with tensile strains (stretching and tilting) within the ground caused by mining subsidence.  He went on to describe in detail the characteristics of this form of movement (known to be a common result of long-wall mining subsidence) as against differential settlement or thermal movement as propounded by Mr Hindley.  There were some areas of older cracking and settlement (for instance to the two original front bay windows) which clearly pre-dated any mining activities, but which may have been exacerbated by it.  The same could be said for the splitting to the dining room beam.   There was also some question over the cracking to the floors and whether this was related, and the cracks were very dirty and ingrained suggesting that they might be older and pre-mining activities.

23.         It was evident, Mr Longworth’s report said, from the pattern of cracking within the walls of the new external skin that had been constructed in 1975-76, that the building was being stretched in a north-east/south-west direction.  It was situated at the top of a slope created by the mining subsidence and it was at this location that tensile strains were the strongest, and the effect of the stretching was that the building would try to “lozenge”.   This he demonstrated schematically on a plan that showed the expected effects on particular parts of the property, and when put alongside a plan indicating the location of specific cracking both within and without the farmhouse, showed them to coincide.  The effect, put simply, was that the building was being “pulled apart” due to the predicted (from his calculations) subsidence beneath the farmhouse of some 451mm, and total predicted ground extension of 1.75mm per metre.  He vehemently disagreed with Mr Hindley’s conclusions that the principal reason for the damage to the modern external brick skin was due to thermal movement, and explained why this was unlikely to be the case.  He did agree with Mr Hindley that much of the distortion to internal (original) walls and doorways was of great age and not recent. 

24.         Mr Huband’s principal report was dated 30 March 2011 and stated that “Our [his firm’s] views are based on a selection of documents provided to us by Beachcroft and a single visit to site.”  He said that those views must remain subject to review in the light of further information becoming available.  He was assisted by a senior technician colleague, Mr D A Wilson, who had prepared schematic and diagrammatic plans. Mr Huband noted that reports had been undertaken by Wardell Armstrong and Mr Longworth for the claimant, and by Mr Hindley for UK Coal.  He also referred to a report that had been prepared by Gleeds who had prepared a level survey for UK Coal.  He went on to summarise the findings set out in those reports before offering his own conclusions.     

25.         As to Mr Longworth’s investigations, it was noted that the conclusions set out in his report had been assisted by a programme of crack monitoring that had been undertaken between November 2009 and April 2010 by Ian Trotter Associates, three trial pits/boreholes that had been dug by another contractor and the testing of soil samples.  Some opening up had also been carried out to the modern brick outer skin above window openings, and it revealed that no proper lintels had been installed – that probably being the reason for cracking in those locations.   Mr Huband said that his own inspection confirmed Mr Longworth’s findings, and he generally agreed with them in relation to the crack patterns, although as to some of the internal cracking and tearing of wallpaper, it was difficult to discern any particular pattern of damage.  He thought that much of the cracking was “relatively recent”, and he agreed with the conclusions from the crack monitoring and soil tests that the movement did not appear to be the result of seasonal ground movement, and there was no evidence of damage that could have been caused by tree roots. 

26.         Mr Huband said that his inspection revealed the distortion to floor levels internally to be consistent with Gleeds’ internal survey, but due to a number of discrepancies within the external tilt survey, he said he felt he could place no reliance on it. 

27.         He then proceeded to explain the long-wall mining technique which has been used as a method of extracting the maximum amount of coal from deep underground seams since the 17^th century.   Now fully mechanised, it involves a rotary cutter moving from side to side through the coal face, the cut coal falling onto a conveyor which carries it away to the surface.  As the coal is cut, steel shields and hydraulic jacks are inserted behind the cutting machine.  As the process moves forward, the shields and jacks are removed, allowing the unsupported roof to collapse.  This collapse transfers to the surface within a matter of days, and a slope develops between the undisturbed ground ahead of the mining and the disturbed ground behind it.   A wide, shallow slope similarly develops to the sides of the line of the extraction.

28.         As the ground deforms to accommodate the subsidence, it stretches or puts into tension the area at the top of the slope whilst it compresses the area at the bottom.  The tension generated at the top of the slope can cause cracking in the ground and in structures built upon it.  Authoritative guidance for calculating the magnitude of the subsidence, and the tensile strains generated by long-wall mining is set out in the “Subsidence Engineers’ Handbook” which was published by the mining department of the National Coal Board in 1975.   Mr Longworth had used that guidance to calculate the effect upon the subject property and Mr Huband said he had checked this and agreed with the conclusion that the tensile strains in the property could only have been caused by the mining that took place within Panel 31.  

29.         Mr Huband carried out a number of further calculations which indicated a north-east/south-west tilt to the building towards the seam of approximately 1:450.  However, whilst the building as a whole may have subsided by this amount and rotated, there will be very little differential movement between the various parts of the building.  Thus, the fact that the vertical cracking on the north wall (at the site of the main trail hole) which extended below ground level was not found to have passed through the foundations is, he said, not surprising.  However, in cross-examination he accepted that with the foundations being only about half the recommended depth for the Corley Moor area (per NHBC guidance), he would have expected the cracks to extend through them, and the most likely place for them to be found would be immediately below the  cracks in the brickwork above.  It was a possibility, he said, that the building had effectively slipped on the foundations.  He also said the fact that most of the cracks that had been identified in the external brickwork were of a constant width was also commensurate with tensile strains in that there was an absence of abrupt or isolated movements.

30.         On the basis of the information that he had analysed, and from his own inspections, Mr Huband concluded that much of the damage to the exterior of the farmhouse was undoubtedly caused by mining subsidence, and whilst the damage caused above window openings was most likely due to inadequate lintels, it could have been exacerbated by the mining.  As to the damage and movement to the walls, doorways and floors in the original part of the house, whilst much of this could have been due to long term and historic settling down and was only to be expected in such an old house, cracks in the areas calculated to be the most vulnerable to the tensile movement described could well be a direct result of the mining.  Regarding the cracks to the solid floors in the kitchen and utility area, the origin of these was, he said, unclear and they certainly looked old.           

31.         In connection with Mr Hindley’s conclusions that all of the damage pre-dated the mining activity, Mr Huband said that whilst much of the internal movement was of a nature that could just as easily be found in many old buildings with inadequate foundations, in this case the cracking in parts of the interior and most of the external skin were most likely to be due to the tensile strains that he had described.  It was important to note, he said, that the largest crack on the north wall was on a sheltered side of the house that did not get the sun, so could not be the result of thermal movement as Mr Hindley had suggested.  All of the cracking to the external brickwork certainly appeared recent as the openings were not dirty, and the edges were not eroded.  Furthermore, he said that if the external damage had been due to thermal movement or differential settlement, this would have become apparent much sooner after the external skin was built, not after some 30 years. 

32.         Finally, Mr Huband said that Mr Hindley had produced no evidence to support his assertions whereas the investigations carried out on behalf of the claimant did just that.

33.         Mr Huband then produced a rebuttal to Mr Hindley’s supplemental report of October 2013, which had been produced following a joint site visit in September, and provided a further analysis of the effects of horizontal strains to a building using the Subsidence Engineers’ Handbook methodology.  He said he did not agree with his conclusions because he seemed to have calculated the very small difference in movement between the two ends of the building as a whole rather then the distortion (stretching) which is to be assessed by calculating the strain resulting from the mining at the nearest and furthest point of the house to the centre of the seam and calculating the average of these two figures.  He demonstrated what would actually happen by reference to “the rubber band model”.  If a rubber band, marked with equidistant dots is stretched, the dots move apart, each by the same amount.  The overall elongation is the sum of all these movements between dots.

34.         Mr Huband also did not agree with Mr Hindley’s suggestion that there was no noticeable difference between the marked contour lines on 2004 (pre-mining) and 2008 (post-mining) Ordnance Survey maps.  He said that that data was not conclusive and whilst overlaying one on the other showed differences, the OS methodology used in producing each of the maps was different, and he accepted that, in any event, the use of this scale of map was unlikely to reveal such small overall movements as had occurred.

35.         In cross-examination, Mr Huband accepted that his first report to Beachcroft, dated 8 November 2010, was a “desk-top” exercise based upon the documents received and that he had not then inspected the property.  He acknowledged that his expert witness report in connection with this reference was, apart from some additional paragraphs added following an approximately four and a half hour inspection, to all intents and purposes the same.  He said that the inspection served to confirm the initial views that he had formed.  Although it was the first coal mining case he had dealt with, Mr Huband said he had experience in connection with chalk mines, swallow and dean holes.    

36.         Asked about the drawings prepared by Gleeds that had been provided to him with his instructions showing levels and slopes to floors [bundle pages 290-292], Mr Huband agreed that the overall distortion was very slight, and that it was difficult to differentiate what might have been long term and what could be more recent subsidence.  He vehemently disagreed with the suggestion put to him that the vertical cracking in the external walls was not typical of coal mining subsidence and reiterated that it was most likely to have been caused by the tensile strains described by Mr Longworth - with whose conclusions he agreed.  Referred to the photographs of the cracking to the north walls [pages 134, 135, 227 and 229] he said these were the clearest evidence of tensile strain.  Although he accepted that the vertical crack above the north window to the kitchen did not extend through the top four courses of brickwork, he said that it was likely that the movement transferred horizontally at that point to the base of the first floor window frame immediately to the right of the vertical cracks.   He said that the extensive cracking to the dwarf garden walls, whilst not corresponding with the position of cracks in the house, were in his view tensile strains and further supported the mining subsidence theory.  As to the fact that some further cracking had become apparent following the repairs to the brickwork, he said that it was only hairline in nature and was to be expected.

37.         In response to a question from me as to whether the cracking on the north wall could be the result of differential settlement at the point where the original single-storey kitchen and utility room had been extended to provide a first floor, Mr Huband said that was unlikely because the cracks were uniform in width rather than tapered.   As to whether or not the complete splitting to the beam across the lounge could have been caused by mining subsidence, he said that was a tricky one to fathom.   

Compensating authority’s case

38.         Mr Fleetwood has 32 years experience of dealing with mining subsidence claims for UK Coal Ltd and, he said, had dealt with thousands of claims during that period.   He explained that following a disastrous fire at Daw Mill Colliery in February 2013, it was closed down and UK Coal’s licence to work the Warwickshire Thick Coal Seam was revoked in July 2013.   Under section 43(3) and (4) of the 1994 Act, responsibility for dealing with subsidence claims then passed to the respondent Coal Authority.    

39.         In response to the Damage Notice served by Paxton Brown, Mr Fleetwood said that because mining operations were at the time still in progress, he served a Stop Notice pursuant to section 16 of the 1991 Act indicating that UK Coal would accept liability for any recent coal mining subsidence damage that fell within section 1 of the 1991 Act.  Then, in accordance with section 17 of the Act, on 28 April 2008 that notice was revoked, allowing previously deferred repair works to be carried out.   He said that he inspected the property on 17 February 2009 and having formed the view that what he saw was old movement and not that which would be expected from mining subsidence, thought it appropriate to have the property inspected by Gleeds to undertake a tilt survey, and for Mr Hindley to provide a full report.   Having received Mr Hindley’s report, Mr Fleetwood said he then informed Paxton Brown that UK Coal did not consider itself under any remedial obligation pursuant to section 2 of the 1991 Act.

40.         However, during 2008, and prior to his own inspection, Mr Fleetwood said that he had had a conversation with Paxton Brown regarding alleged flooding to the cellar and surface water run off from the adjacent field.   He said he instructed Steve Vine from Land Solutions Ltd to provide an urgent report.   That report, dated 17 October 2008, advised that the cellar had been drained by the repair of its drain which was said to have been broken in two places some 10 and 15 metres to the south-west in the garden and beyond.  The cellar drain itself appeared to be properly constructed and the contractors seemed to Mr Vine to be undertaking a proper repair.   Mr Vine said that despite there being inherent problems with the land unrelated to mining subsidence, there was a possibility that the mining could have aggravated the position.  

41.         Mr Fleetwood said that as a result of the report, he wrote to Paxton Brown on 20 October 2008 saying that given the timing of the water problem, the location of the recent mining and the findings of the investigation, UK Coal would reimburse the reasonable cost of undertaking repairs to those specific locations where a broken drain had been found.  The letter sought confirmation of when the works had been completed, together with a copy of a duly receipted invoice.  No such confirmation was ever received, and he had not received a receipted invoice.   He said he had also made a without prejudice offer to Paxton Brown to pay for some limited drainage works to the field at the front of the farmhouse, but he had never heard anything further about that matter -  no claim having been made and no mention of it being made in any of the expert reports.  

42.         As to why he offered to pay for the limited drainage repairs, Mr Fleetwood said that as the damage appeared modest, and the expected repair cost would be quite low, he took a pragmatic approach.  His department had only limited resources, and was located over 100 miles away in Doncaster.  It was, he accepted in cross-examination, paying for what seemed like a minor problem to go away.   The invoice from McBride and Bailey for £5,472 including VAT that was before the Tribunal was, he said, unsigned and undated and was not a receipt.  It appeared to be for substantially more works than had been authorised (the replacement of 54 metres of drain) and he said that he was unable to reconcile those works with the offer that had been made.   

43.         Mr Fleetwood also referred to the claim made in the sum of £784.11 in connection with a quotation from Leigh Roofing Co dated 8 May 2010 (some three years after the mining had last taken place), said to be for emergency repairs to the roof that included for the replacement of 60-80 roof tiles.  He said it appeared that no cost appeared to have been actually incurred, so it was hard to see how any claim pursuant to section 12 of the Act could be seen to exist.  UK Coal was not, he said, approached at the time the quotation was given, and they were not asked to inspect the roof.   The first he knew of this was in connection with these proceedings, no roof damage was reported in the Damage Notice, and no mention of alleged mining damage to the roof was made in the expert reports.  Mr Fleetwood said that in his experience it would be unprecedented to receive a claim for one damaged roof tile, let alone the significant number being claimed for here.  Further, it could hardly be an emergency repair so long after the mining had taken place.  In his view, the two specific claims he had referred to were not genuine.

44.         Asked in cross-examination about the nature of the damage, Mr Fleetwood said that mining could cause both compressive and tensile strains depending upon whereabouts in the subsidence trough it was located.  He said that the Warwickshire Thick Seam subsidence was not consistent with that normally found – it was deeper and narrower than the standard profile which was specifically dealt with in the Structural Engineers’ Handbook.   However, it was confirmed in closing that the respondent’s case does not depend upon such a finding, and nothing turns on the point.

45.         Mr Hindley has over 30 years experience of investigating building defects, including subsidence damage and remedial work.   He said he was instructed by Mr Fleetwood to carry out a full survey of the subject property and the outbuildings and to report upon the extent of damage and the likely causes.  He produced his main report in connection with this reference on 31 August 2013, and a supplemental report following further analysis in October 2013.

46.         In a brief executive summary in his first report, he said:

“4.1  There are various and numerous defects in both the house and the outbuildings which I have considered on their respective merits.

4.2  It is my opinion that none of the defects have occurred as a result of coal mining activity and many can also be shown to have occurred prior to the coal mining activity taking place.   Substantiation in respect of logic and mechanisms at play are given.   Thus, it is my view that the claim is disingenuous.”

47.         In his view, the horizontal cracking to the bed joints above window openings was entirely due to the fact that no lintels were provided when the external brick skin was added in about 1974.  The only support for the brickwork was the wooden window frames which, when they were replaced with uPVC units in 1994, allowed the brickwork above to sag.  It was clear therefore that this damage pre-dated the mining activity by many years.

48.         The vertical cracking is entirely attributable, he said, to natural thermal and moisture movement within the brickwork.  He referred to various research documents including the Building Research Digest No 361: “Why do Buildings Crack?” and said that they all classically indicate the vertical pattern of cracking to be due to the causes indicated with it having no element of vertical or differential movement.  

49.         Regarding the cracks and evident distortion to walls and around door openings within the house, Mr Hindley explained that all but the outer skin and the first floor extension over the kitchen and utility room were of considerable age.  The main original external walls were extremely thick and therefore heavy, and settlement over the years was only to be expected due to it having been constructed off inadequate or indeed non-existent, foundations.   With there being no evidence of differential foundation movement having affected the newer outer skin, he said that he could not envisage mining subsidence being so selective as to affect one part of the building and not another. 

50.         Having established with a spirit level that there was no marked sloping to the granolithic finished ground floors, and bearing in mind that the significant cracking found therein particularly in the kitchen was around door openings, Mr Hindley concluded that they were principally caused by shrinkage due to no provision having been made for such movement in these critically important areas.   They could also be due, he said, to inadequate site preparation and support being provided when these floors were laid.  Thus again, all these defects must pre-date the mining activity.

51.         Similarly, the failure of the timber beam in the living room was due, in his opinion, to the fact that not only was it badly infested with beetle activity, and thus generally weakened, but also its central part was heavily overloaded, supporting as it did a masonry wall above together with the floor joists supporting two bedroom floors.  The site of the failure coincided with a “shake” in the wood, and again could not possibly be associated with the mining.

52.         Mr Hindley went on to report upon unevenness to external paving, and the cracks within the dwarf garden walls.  All of these were due to general defects in construction – for instance one of the garden walls was clearly constructed directly off the earth, and there were no foundations at all.

53.         Any movement, including that evidenced by cracks in the ground floors was related to the age and construction of the building, and could not therefore be attributable to mining subsidence.

54.         In his supplemental report, which was produced following a site meeting with Mr Huband, set up to try to narrow some of the issues, and following him having by then seen Mr Huband’s report of March 2011, Mr Hindley said that he carried out a further analysis adopting established engineering principles, and with reference to the Subsidence Engineers’ Handbook.   He said that in the light of the fact that both Mr Huband and Mr Longworth had stated figures for predicted horizontal strain, he calculated those possibilities in accordance with the calculations set out in a document that had been provided to him by the respondent when he prepared his first report: “the Mulpan Calculations”.  In the letter of instruction that requested him to prepare his report, UK Coal said:

“Additionally, I enclose ‘Mulpan’ calculations which provide predictions for tilt (highlighted yellow), maximum subsidence (highlighted green) and maximum tension (highlighted pink) along the axes of the buildings in question.  This information is of a sensitive nature and therefore should be kept confidential.”

55.         He then set out the technicalities of his interpretation of those figures, and concluded that the actual differential strains along the longest sides of the house would be no more than 1mm, and thus inconsequential.  He also said that despite the predictions set out in the Structural Engineers’ Handbook, it does not axiomatically follow that such movements will be of the magnitude predicted.  Indeed, he said, before and after versions of the OS maps showed broadly similar contours, although he accepted in cross-examination that the OS had said their maps were accurate to plus or minus 1.5m, so they were of no real assistance.  Mr Hindley also referred to the fact that there was evidence that some further cracking to the external brickwork had occurred since the repairs were completed.  It was clear from their pattern that no steps had been taken by the contractor to resolve the lack of lintels and this would be one explanation for the further cracking now evident.  However, and more importantly, he said that it demonstrates the overwhelming likelihood that the original defects must have appeared shortly after the new external skin was first constructed.

56.         He referred again to the trial hole that had been excavated by Mr Longworth immediately below the most serious vertical crack on the north wall, and said that it had been re-opened for further inspection.  He produced a photograph that, he said, clearly showed that not only had the crack not extended through the foundations, but it was obvious from the finish of the foundations that the building could not possibly have slid along them, that having been one of the claimant’s expert’s contentions.

57.         In conclusion he said that his opinions remained the same as they were when he wrote his first report, and indeed they were reinforced by his further calculations.

58.         In examination in chief, Mr Hindley reiterated that he was entirely satisfied that there had been no subsidence in the external envelope and that all of that internally was for the reasons he had stated.  The cracks in the floors were obviously very old due to the amount of dirt in them.   Further, if there had been tensile stretching as propounded by the claimant’s expert, the cracks would undoubtedly have continued through the foundations.  However, he admitted that he had not carried out any further trial-hole investigations to prove that beyond doubt.  Such extensive works, he said, would be completely unnecessary.  He did not agree with Mr Huband’s suggestion that it was unlikely that thermal movement, which he thought was the problem, would occur in walls that were less than 12 metres in unbroken length.   In round figures, he said moisture movement could occur at up to 1mm per linear metre.

59.         With regard to Mr Huband’s linear movement calculations, Mr Hindley said that the Structural Engineers’ Handbook was helpful, but that the rubber band test was “useless”.  Where a building is moving, both ends move together but at a different rate whereas with a rubber band, each end is pulled in a different direction.  As to the new cracking that Mrs Hicks said had recently occurred, he said that some 6 or more years after the mining ceased was far too long for that to have been the cause.  Those new cracks had re-appeared in their previous locations, and in new places.  It was, as he had said, history repeating itself.

60.         In cross-examination, it was put to Mr Hindley that for his hypothesis to work, Mrs Hicks’s claim would have had to be fraudulent.  He agreed, and said that when he met Mr Wilshaw of Wardell Armstrong at the property with Mr & Mrs Hicks, Mr Wilshaw said that a crack they were inspecting on the south elevation was fresh.  In response, Mr Hindley said that it was old, at which point Mrs Hicks said it was not there before the mining.  He then said that was rubbish, and Mr Wilshaw said “she’s lying then?”  Mr Hindley said he replied in the affirmative, but the Hicks said nothing.  In his view, if they had not been lying, they would have shown outrage at such a suggestion.   He accepted that whilst he thought that she had been lying under oath and in her witness statement, no such accusations had been put to her in cross-examination.

61.         Mr Hindley then went on to say that if Mrs Hicks was correct as to the timing of the damage, there was every likelihood that it had been due to subsidence caused by the mining activities.  He accepted that it was for the Tribunal to determine the timing as a finding of fact on the evidence, apologised for not having included that opinion in either of his reports and accepted that it was his duty to the court to have done so.    

62.         He admitted that in his initial report he had not considered the question of the possibility of lateral movement, and had only concentrated upon whether or not differential vertical settlement had occurred, ruling out mining subsidence because he thought it had not.  He accepted that horizontal strain could cause subsidence, and acknowledged that the Structural Engineers’ Handbook indeed said that tensile strain was the most common form of subsidence damage.   Accepting that subsidence can be caused by both lateral and vertical movement, he said that had he seen any evidence of lateral movement, he would have attributed it to mining subsidence.  Mr Hindley then agreed that despite thinking the claimant had lied in making her claims, he had produced no evidence about the possibilities of lateral movement.   Pushed further in cross-examination, he said he had not analysed the possibilities of horizontal strain because it had not crossed his mind.  There was, he said, an abundance of differential vertical movement within the inner, older part of the building, but not within the external envelope so he did not therefore need to have considered it.  He accepted as correct the statements at paragraphs 22-24 of Mr Longworth’s rebuttal statement that in overlooking the possibility of horizontal tensile movement in the building, he was not in a position to assess on the balance of probabilities what damage could reasonably be attributable to mining subsidence.

63.         Mr Hindley accepted that, in accordance with section 40(2) of the 1991 Act, the burden of proof that damage is not the result of mining subsidence is shifted to the respondent Coal Authority, and admitted that he could have carried out calculations and dug more trial holes, and taken more steps to prove that it was indeed, as he still thought, thermal movement in the external skin.  He also accepted that the failure to refer to the Mulpan evidence represented a conflict between his duty to the court and his duty to respect his client’s confidentiality, and admitted that it should have been included within his main report, at least as an appendix.  On being taken through diagrams [bundle pp.129 & 130] produced by Mr Longworth showing the locations of cracking in comparison with the areas where it would be expected to occur in the building due to the potential direction of horizontal strain, together with a schematic [p257], Mr Hindley said that the cracking fits within those expectations, and that that evidence suggested that tensile strain could be caused by mining subsidence, were it not for the fact that he thought the cracks were too old.   In over 30 years of experience, he said he was able to gauge the age of cracks.

64.         Referred to a diagrammatic sketch included within Mr Huband’s rebuttal report [p.277] showing a cross-section through the site occupied by Birchley Hall Farm in 2000 and 2008, Mr Hindley accepted that it appeared to show that subsidence had occurred, that it would have been due to the mining activity in seam 31. Finally, he accepted that the Structural Engineers’ Handbook created the methodology for assessing the likelihood of subsidence and the expected extent to which it would occur given certain parameters.    

65.         In re-examination, Mr Hindley was taken back to the Mulpan data as it applied directly to the subject property, and said he accepted the predicted movement of 38mm on a line between the front and rear walls of the house.  If those predictions were right, the movement would have been both vertical and horizontal.

Submissions

66.         It was submitted in closing by the respondent Coal Authority that the key issue in this matter is the question of timing.  Mr Hindley readily conceded in cross-examination that if the damage had occurred in around May 2007 as contended for by the claimant, it would not have been caused by thermal or moisture induced movement or construction deficiencies, and would most likely have been the result of mining subsidence.  However, it was Mr Hindley’s considered view that the damage to the external brick skin would have occurred within 3 years or so of it having been built, and the damage to internal walls, ceilings, floors and doorways would have been very much older.  Having said that, he had conceded that some of the cracks within the external skin could have been exacerbated by the installation of the replacement windows, as he had explained. 

67.         The experience and credibility of the expert witnesses and the credibility of Mrs Hicks’ evidence are, it was submitted, primary factors for the Tribunal to consider.   Mr Hindley, it was suggested, was vastly more experienced in such matters than Mr Huband for whom this was his first investigation into alleged coal mining subsidence.  Further, Mr Huband had been prepared to advise his client that the cracking was caused by mining subsidence before he had even inspected the property, and had also been able to conclude that the damage was recent on the basis of photographs alone.  The paragraph referring to the photographic evidence remained unchanged in his expert witness report.   

68.         Mr Huband’s admission that he would have expected cracks caused by mining subsidence to have extended through the foundations, whereas they did not in the location where opening up had occurred, was pointed out, as was the implausibility of his suggestion that the building may have “slipped” on the foundations due to the lateral stresses.  Apparently, three trial holes had been dug by Mr Longworth when he carried out his investigations, but that data had never been released to the respondent despite requests for its disclosure.

69.         Whilst it was accepted that the burden of proof pursuant to section 40(2) of the 1991 Act is upon the respondent, it was submitted that that burden would not extend to expose all the foundations in order to prove on the balance of probabilities that the mining was not the cause of the damage.  It was suggested that the actions Mr Hindley took in re-opening one of the trial holes in potentially the most important location, and his offer to carry out some further exposure in locations of the claimant’s expert’s choosing was quite sufficient.  As to the Mulpan Data, whilst the respondent said it could only be expected that criticisms would be made relating to its non-use in the evidence, it was pointed out that it was commercially sensitive and at the time the instructions were given to Mr Hindley, it “could not have been known that the claim would be litigated”.  Mr Hindley had apologised for its omission from his first report, and said that he had intended for it to be included but “inadvertently” it had not.  However, the situation had been resolved when Mr Hindley’s supplemental report was produced, only 6 weeks after his first report.

70.         The respondent said that the claimant was not a credible witness. It was submitted that her contention that the movement all occurred from around May 2007 was not only contrary to the evidence of Mr Fleetwood and Mr Hindley, but was also contrary to what Mr Longworth had said in connection with cracks to the floors (at paragraph 43 of his report) and what Mr Huband had said that it was difficult to establish which of the internal cracking was old and which might be recent by it being mirrored by external cracks.   

71.         There are also a number of further facts that bring into question the credibility of the claim.  For instance, the insurers paid Mrs Hicks a sum inclusive of VAT based solely upon a quotation she had received, but the works have not been carried out.   Similarly, the basis of the claim for the alleged emergency roof repairs was a quotation (from Leigh Roofing) but works were apparently undertaken by others, cash in hand – as were the internal redecorations.   The resurfacing works, which Mrs Hicks seemed to know little about, have also not been effected.  It is also noteworthy, Mr Wright submitted, that the claim for over £100,000 for damage to the outbuildings was dropped once it became apparent that no settlement could be achieved. 

72.         There was also no written or oral evidence from any of Mrs Hicks’ other family members in support of her case, and it was remarkable that nobody from the claimant’s insurers or the loss adjusters was even present at the hearing, despite them having paid out substantial sums of money.  

73.         At paragraph 12.8 of Mr Wright’s closing submissions, he said this:  

“The claimant’s counsel appeared to suggest that the credibility of Mrs Hicks cannot be questioned as we did not accuse her of being a liar.  It is not the respondent’s way to accuse an elderly lady, who was clearly nervous and apprehensive, of serious criminal behaviour.  She clearly knew very little about the claim, and the respondent does not know what pressures she was under to give such evidence.  We submit that the claim was opportunistic, both in relation to the insurance claim, and the mining subsidence damage.  Having obtained pay-outs from insurers, the claimant could hardly be expected to change her story, lest she be required to pay it back.”   

74.         Turning the third issue, whether the respondent Coal Authority is liable to make any payment pursuant to section 38(2) of the 1991 Act, the relevant section provides:

“38 Reimbursement of successful claimants’ expenses.E+W+S

(1)     Where the Corporation—

(a)     take any remedial action; or

(b)     make any payment to, or make any living accommodation available to, any person under Part III of this Act,

         they shall also pay any costs or expenses to which subsection (2) below applies.

(2)     Subject to subsections (3) to (5) below, this subsection applies to any costs or expenses reasonably incurred by the claimant or any other person interested or, as the case may be, by the person in question—

(a)     for the purposes of, or for purposes connected with, the preparation and prosecution of his damage notice or claim; or

(b)     in the case of costs or expenses incurred by the claimant before the subsidence damage became evident, with a view to the possible preparation and prosecution of his damage notice.

(3).    …

(4).    …

(5).    Subsection (2) does not apply to any costs or expenses incurred in or in connection with any proceedings before any tribunal, court or other person if an order for their payment has or could have been made by that tribunal, court or other person.”

75.         It was submitted that whilst section 38 of the Act creates a liability to pay costs or expenses reasonably incurred by the claimant for the purposes of, or purposes connected with, the preparation and prosecution of a damage notice or claim, any such obligation only arises where either the Coal Authority has itself taken remedial action, or made a payment pursuant to Part III of the 1991 Act [which relates to matters such as home loss payments, relief for temporary dispossession, farm and crop loss payments etc, none of which appear to be relevant in this case].  With no remedial work having been undertaken by the respondent, and no payment having been made under Part III, no liability can therefore accrue.

76.         Specifically, it was argued, the payments made by insurers to GAB Robins Loss Adjusters, Ian Trotter crack monitoring and P C & D Ltd, trial holes do not come within the scope of section 38, and in any event no proper details of the investigations they undertook, or precisely what they did was provided.  As to payments made by the claimant to Wardell Armstrong and Paxton Brown, it was submitted that if the Tribunal finds for the claimant, it should make an order that those costs fall to be dealt with as part of the costs of the reference [more precisely, pre-reference costs], where questions of reasonableness can be taken into consideration.  As such they fall within the provisions of section 38(5).

77.         Regarding the claim for reimbursement of other sums, including Sutton Civil Engineering for external and internal repairs, the redecoration costs and the flooring works, not only was it impossible from the evidence to conclude just how much, if any, of the wants of repair could be due to mining subsidence, but also some of the money had been “pocketed” by the claimants, and no works had in fact been done – for instance to the floors.   The incredible, it was suggested, claim for resurfacing of a significant section of the lane had not been justified, and it was likely that any works required to this presumably unmade and unadopted road were purely wear and tear.   Although the Coal Authority had accepted liability for some drainage works, the amount claimed for the payment made to McBride & Bailey related to significantly more work than had been approved. There was absolutely no evidence from which it could be concluded that any of the allegedly required roofing works were, or could be, due to coal mining subsidence.      

78.         For the claimants, Mr Sage submitted that there were two preliminary matters that the Tribunal should address when considering its conclusions.  Firstly, the question of burden of proof which, under the 1991 Act, was switched from the normal position in civil litigation where it is for the claimant to prove his case, to the respondent, subject to the claimant getting over a relatively low evidential threshold.   That threshold is achieved, under section 40(2) when the circumstances indicate that the damage “may” be subsidence damage.  In this case, it was submitted that this hurdle had easily been cleared particularly because in cross-examination, Mr Hindley had conceded that the property exhibited symptoms of a nature that indicated the problems might be related to mining subsidence, and was quite specific when he said that if the cracking and damage took place in 2007, it most probably was mining subsidence.  With all three experts (Messrs Longworth, Huband and Hindley) accepting that the pattern of external cracking was consistent with lateral strain damage, that the property was in the vicinity of long-wall mining activity and that lateral strain was one of the most commonly found types of subsidence damage (per p.46 of the Subsidence Engineers’ Handbook) where this type of mining occurred, it was for the respondent to prove that the damage was not caused by mining activities.

79.         Secondly, it was submitted that the respondent’s case was that when Mrs Hicks submitted her claim for compensation (and indeed, when she claimed on her property insurance) she knowingly made a fraudulent claim.  The Coal Authority’s lay and expert witnesses both accepted in cross-examination that this was their case.  Indeed, Mr Hindley’s report said that the claim was “disingenuous” and in cross-examination he directly accused the claimant of being a liar.  As Mr Wright said in his closing, Mrs Hicks’ claim was “opportunistic”, and that she was “an unreliable witness”. 

80.         The respondent, Mr Sage explained, accepts that Mrs Hicks had not been directly accused in the witness box of being a liar, and their failure to do so means that they cannot now advance this case before the Tribunal.  That is a basic principle of civil litigation see LB Haringey v Hines [2011] HLR 6 where Rimer LJ said:

“38 … as the court put to counsel during the course of the hearing, it was in principle unfair for Haringey to expect the judge to make a finding that Ms Hines had deceived it in the particular way it alleged without putting the alleged deceit to her expressly in cross-examination and giving her the opportunity to answer it.  That would not only have been the fair way in which to advance Haringey’s case in deceit, it would also have put the judge in the best position to assess on the facts whether the case was made good.

39. Haringey’s omission so to put its deceit case to Ms Hines in cross-examination was in my judgement a serious omission.  It is a basic principle of fairness that if a party is being accused of fraud, and is then called as a witness, the particular fraud alleged should be put specifically to that party so that he/she may answer it.”

The respondent is not relieved of this obligation because Mrs Hicks happens to be an “elderly lady, who was clearly nervous and apprehensive”.  Having failed to put that case to her, the respondent cannot now invite the Tribunal to make such a finding.

81.         Even if such an allegation had been put to Mrs Hicks, there still remains a need for “cogent evidence” before such a finding could be made – see Re H [1996] AC 563 per Lord Nicholls at 586.

82.         As to the timing of the damage, which is the crucial finding for the Tribunal to make, Mrs Hicks had been adamant both in her witness statement and under cross-examination, that no significant cracking had been noticed prior to 2007, and it had occurred after the mining had taken place.    She had given clear and cogent answers to questions, even when these answers might be seen as unhelpful to her case.  This was not, it was submitted, the demeanour of someone who had embarked upon an elaborate six year hoax.  The Tribunal was also asked to have regard to the re-valuation report carried out by Bristol & West that revealed no significant damage.  

83.         Mr Hindley, who had not come onto the scene until two years after the damage had occurred, was only able to point to his opinion that the cracks “looked old” specifically because of the amount of dirt in them.  This was hardly, Mr Sage said, a sufficient ground for UK Coal’s outright rejection of the claim.  Mr Hindley’s method of calculating strain, as set out in his supplemental report was, it was submitted, not endorsed by the Subsidence Engineers’ Handbook, as he had accepted in cross-examination. It was average strain over the length of the structure that was to be taken, that being the method adopted by the claimant’s experts.  That Mr Hindley admitted he had “overlooked” the possibility that the property could have suffered from horizontal strain in his first report spoke, Mr Sage said, volumes.   His suggestion that the only way mining subsidence could cause damage was to produce differential vertical strain was fundamentally flawed and on its own this was sufficient for his evidence to be rejected outright.   Add to this his treatment of the Mulpan information, and the question of his impartiality is brought into question.

84.         It was submitted that, in law, there was support for the proposition that if the Tribunal accepts that mining subsidence made a “material contribution” to the damage in the property, then Mrs Hicks should be entitled to the full cost of remedial works for which the 1991 Act provides – see Loftus-Brigham v LB Ealing [2003] EWCA Civ 1490. 

85.         Regarding issue (3) – whether the respondent was liable to make payments under section 38, it was submitted that the GAB Robins, Ian Trotter and PC & D invoices are all costs reasonably incurred for purposes connected with the preparation and prosecution of the claim, and clearly, therefore, fall within section 38(2) of the Act.  Similarly the professional fees invoices of Wardell Armstrong and Paxton Brown also fall within section 38(2).  The respondent’s suggestion that they are not recoverable pursuant to section 38(5) is simply absurd as they were incurred long before the reference to this Tribunal was made and they have not been experts in these proceedings.   

Conclusions

86.         The questions of timing and of burden of proof are the key factors in my decision in this reference.   Mrs Hicks’ evidence was clear and unequivocal.  Although it seems to me that, as the respondent Coal Authority said, there are some questionable aspects about the conduct of the claim, for instance the stance taken in respect of the abandonment of the claim for the outbuildings, and the fact that some of the money paid out by insurers has not been used (at least yet) for the purposes it was obtained (although that does not appear to me to be of any particular relevance to the questions I have to answer), I am satisfied that she was being entirely truthful when she said that much of the cracking in the external brickwork, and at least some of that internally, did occur in 2007. 

87.         Had there been any doubt in my mind about the credibility of the witness in connection with her recollections of when the majority of the damage occurred, I would in any event have been unable to accept that the respondent had discharged the burden placed upon it by section 40(2) of the 1991 Act sufficient to persuade me to reject Mrs Hicks’ evidence in its entirety – as argued for by Mr Wright.  It was not put to her in the witness box that she was being untruthful, nor that she was simply misremembering.  It was put to her that the condition of the terrazzo floor and the oak beam pre-dated the mining.  She was also asked about earlier (2006) dates of damage suggested in the letter before action, and in Mr Huband’s report but I think these were mistakes, and overall I did not have doubts about her credibility.   Given the way in which the respondent’s case was put to Mrs Hicks, which allowed her no opportunity to refute the suggestion that she was lying, it would have been impossible for me to accept that to be the case as a matter of fairness even if I did have doubts about her credibility.   The suggestion at paragraph 22.2 of Mr Wright’s final conclusions, that “a finding by the Tribunal that even one crack predated 2007, whether internally, externally, or to the outbuildings, is sufficient to undermine the credibility of the entire claim” I find to be totally without merit.  I deal with the specifics as to the extent of damage later.

88.         I also fail to see how the claimant’s case can be described as opportunistic.  This was a subrogated claim made, in part at least, on behalf of insurers, who clearly were of the view that the reasons for their having to pay out were due to coal mining subsidence.  They were, in my judgement on the evidence, entitled to come to that conclusion although I do find it surprising that they did not appear at the hearing, and seem to have taken no part in the proceedings.  As to her own claim for uninsured losses, whether related to this reference or not, the claimant was I think perfectly entitled to bring the action based upon the advice she received from her initial and subsequent advisers.       

89.         Mrs Hicks’ evidence was also corroborated by the Bristol & West re-valuation report so far as the damage prior to 2001 was concerned.  In that regard, whilst I accept that the inspection carried out for that purpose was for valuation purposes only, and would undoubtedly have been pretty cursory, I am certain if the extent of cracking to the external brick skin had been anything like as extensive as depicted in the photographs produced with the evidence, that would have rung serious alarm bells in the surveyor’s mind.   So would the cracking to internal plaster finishes that were potentially anything more than that which might have been caused by the general distortion and obvious age settlement which the experts agreed was only to be expected within a property of this age.  If the external cracks had been there in 2001 (it having been suggested by Mr Hindley that they would have appeared within 3 years of the external skin being built), it would undoubtedly, in my judgement, have led to the surveyor saying far more than that the property just needed general updating.

90.          Turning to the expert evidence, it seems to me rather strange that Mr Hindley can, on the one hand, describe the specific nature and type of cracking to the brick outer skin as consistent only with thermal shrinkage and moisture movement, and yet on the other, readily admit that if it had occurred coincidental to the timing of the mining activities in Seam 31, then it “must have been due to mining subsidence”.  He also went to great lengths to say why the cracking could not have been attributable to lateral strain, despite that being the most common type of movement resulting from long-wall mining, and dismissed both Mr Huband and Mr Longworth’s reasoning and conclusions on that basis. However, he admitted that he had not even considered that prospect when preparing his first report, because it had not occurred to him to do so, and accepted in cross-examination that as a result of that omission, he was unable to reach any conclusions “on the balance of probability” as to what precise areas of movement could have been the result of mining activity. 

91.         Mr Hindley also failed to consider, or in his first report, mention, the Mulpan Data despite accepting that the detailed calculations and predictions therein were highly relevant.  He admitted having withheld the information because he had been advised that it was “sensitive” and in that respect, in my judgment, he failed to discharge his duty to the court, although he did include it as an appendix to his supplemental report which followed soon after.

92.         The significant number of concessions Mr Hindley made in cross-examination raise questions as to the reliability of his investigations and of his reports and conclusions (see paragraphs 62 and 63 above in particular). It was surprising that his initial report had failed to give any consideration to the possibility of tensile strain and lateral movement, and he accepted that in overlooking those possibilities he was not, as I have said, in position to assess on the balance of probabilities what damage could reasonably be attributable to coal mining subsidence.  It was these admissions and the concessions summarised in paragraphs 63 to 65 above that lead me to the conclusion that, on the basis of its evidence, the respondent Coal Authority has failed to satisfy the burden of proof under section 40(2) of the Act which provides:

“40(2) Where in any proceedings under this Act the question arises whether any damage to the property is subsidence damage, and it is shown that the nature of the damage and circumstances are such as to indicate that the damage may be subsidence damage, the onus shall be on the Corporation to show that the damage is not subsidence damage.” [my emphasis]

93.         The key words in this section, certainly as far as this case is concerned are those highlighted.  It is in my view clear from the evidence that some of the damage may be (and most likely was) damage caused by coal mining subsidence.  With the respondent Coal Authority having fallen at the burden of proof hurdle in failing to satisfy me that none of the damage was attributable to coal mining subsidence, it is therefore  necessary for me to consider the evidence as to what might and might not have been due to subsidence damage in order to quantify the extent of their liability.

94.         Regarding the claimant’s expert evidence, despite his having not been before the Tribunal and thus not available for cross-examination, I found Mr Longworth’s report to be comprehensive and persuasive.  I consider it useful to set out his conclusions in respect of the possible causes of tensile strain damage to the farmhouse, which appeared in his report at paragraph 46 (that report having been considered by Mr Huband).  It said:

“ Apart from the damage to the bays on the eastern side of the farmhouse (which appears to have primarily resulted due to lack of structural support …) the principal mode of damage to the farmhouse is tensile strain that has caused cracking to internal and external walls.  If such damage were to external walls alone, I might suspect thermal or shrinkage movements in building materials to be a possible cause of cracking (in fact, from other considerations, this is unlikely [referring to several technical references]).  However, similar movements are seen in both the modern (1975-6) clay brick walls and the very old interior walls.   Moreover, there are three or more principal alignments traversing the farmhouse (Figure 7) on which prominent zones of damage are located.  Taken together, these factors strongly suggest that the farmhouse is being affected by tension movements that are seated in the underlying ground.   The implied mechanism is that the ground is extending laterally in the vicinity of the farmhouse and that such extension is partially transmitted to the farmhouse via its foundations, so pulling it apart.”     

I find this to be a credible and persuasive summary of the problem, and I prefer his evidence and that of Mr Huband over that of Mr Hindley.       

95.         I also find it remarkable that Mr Wright could suggest in his submissions that Mr Longworth’s evidence at paragraph 43 of his report was contrary to that of Mrs Hicks whereas he clearly indicated that they “could have been the result of recent tensile strain” [my emphasis].  Mr Wright made the same criticism of Mr Huband, where he had said, at paragraph 6.28 of his first report

“The internal damage is more equivocal and save for the coincidence of some of the internal damage with the mining, it is difficult to say what proportion of the internal damage in the original house is due definitively to effects of mining and what proportion pre-existed the mining.”  

Reading of that paragraph of Mr Huband’s summary suggests quite reasonably in my view, that some of the cracking internally is old (and that is not disputed or, in my judgment, disputable) and some of it is due to mining subsidence.  

96.         From a detailed analysis of the evidence, and from my own inspection of the subject property, it is abundantly clear that much of the movement and associated cracking to plaster finishes and ceilings, together with distortion to doorways and other general internal defects (probably including at least some of the cracking to the floors), will be due to the property’s considerable age, and the fact that, as Mr Hindley said, it had massively thick walls and was undoubtedly  built on inadequate foundations.   However, it is the evidence relating to the external brick skin, and my preference for that of Mr Huband and Mr Longworth, that leads me to conclude that mining subsidence was very likely to have been the cause of much of the damage in those areas.  It was clear from the evidence, and as was stressed in Mr Sage’s submissions, that some of the cracking to the external brick skin was transmitted through to some of the internal plaster finishes to the original walls and this is further support to the argument that the external cracks were most unlikely to be related to thermal shrinkage or differential movement.   Nevertheless, I do note that it is agreed that some of the cracks to the external skin were due to there being inadequate lintels over the windows, and cracking (especially the stepped cracks) above those will undoubtedly have been exacerbated by the replacement of the window frames and were unlikely to be related to mining subsidence.

97.         On the balance of probabilities therefore, it is my conclusion from the evidence that at least some of the structural damage being claimed for was caused by mining subsidence.  Indeed, my conclusion is supported by Mr Fleetwood who, on behalf of the respondent Coal Authority, accepted that some of the damage to the drains could have been the result of mining subsidence, and agreed to accept liability for those defects.   That it was only a “small ticket” claim, and that he decided to take a pragmatic approach for the reasons given is, in my view, nothing to the point. The fact remains that UK Coal has acknowledged that mining subsidence may have created the problems in those areas, and in the light of Mr Hindley’s concessions, I consider there is every likelihood that some of the more significant damage was also caused by said activities.

98.         The difficulty for me, however, is determining the precise liability of the Authority in respect of the specific heads of claim.  Some of these, I have to confess, from the evidence before me cannot be subject to a clear cut “black or white” decision one way or the other, and therefore it will be necessary for me to make a robust decision on the items to which I shall specifically turn.  It follows that I do not subscribe to Mr Sage’s submission that in the light of Loftus-Brigham v LB Ealing [2003] EWCA Civ 1490, the Authority must be responsible for the totality of the claim.  

99.          Having drawn my conclusions in respect of issues 1 and 2, I now turn to issue 3 before dealing with the specific liabilities.  

100.     Section 38 gives a successful claimant a statutory right to recover costs and expenses “reasonably incurred” in pursuing a damage notice claim even if there has been no reference to the Tribunal.  Where there has been such a reference, section 38(5) prevents UK Coal being liable for costs and expenses incurred in connection with it (costs in the reference).  Despite Mr Wright’s submissions, I do not think it could possibly have been the intention of parliament in the drafting of this section to prevent a successful claimant from recovering the costs and expenses reasonably incurred in pursuing his or her claim only in the event that, either works had been carried out by the Authority, or payments had been made under the specific circumstances set out in Part III.   This would mean that, as here, where such works have not been undertaken, and such payments have not been made, the claimant would receive no reimbursement even if he or she received compensatory payments in lieu – for instance under section 8. 

101.     It follows therefore, that I accept the submissions made by Mr Sage (see paragraph 85 above).  The question of the reasonableness of the costs of the contractors who dealt with the investigatory work can be dealt with in this decision as can those relating to Paxton Brown and Wardell Armstrong regarding their professional fees.   Even if I am wrong, and the professional fees and, for that matter, the investigatory costs were deemed not to fall within the provisions of section 38(2), they could potentially be claimed as pre-reference costs in which case the question of reasonableness could be considered by the Registrar in a costs assessment if the parties fail to agree.  

102.     I now turn to the specific costs (set out in paragraph 10 above as issues 4 and 5) and, as I have said, this is where an element of robustness is required.  In my view, in areas such as costs of repairing brickwork, re-plastering and the like where some but not all of the damage may have been caused by coal mining subsidence, I consider that a percentage award is the fairest (and only reasonable) way forward.   

103.     Firstly, issue 4 – reimbursement of sums paid by insurers.  

104.     Sutton Civil Engineering  £30,150 inc VAT.      This was the most significant cost, and covered the repairs to the external and internal brick and plasterwork, replacement of the split ceiling beam, re-pointing, and at least partial rebuilding of and repairs to the original bay windows – the latter being agreed as unrelated to mining.   Of the total of £25,125 net of VAT paid to Sutton, although difficult to tell precisely from the invoices and Schedules provided in the evidence, it appears that £4,570 plus £325 was expended in connection with the window bays.  This leaves marginally over £20,000 attributable to items which were in part due to mining.  Doing the best that I can in the circumstances, and on the basis that it appears that somewhat more of the internal works were likely to be non-mining related than those externally, I consider the respondent Coal Authority should pay 50% of the remaining £20,000 plus VAT giving a total of £12,000.00 under this head.

105.     Internal redecoration  £10,952.40 (Cash)   Again, I consider 50% to be a fair split, and thus determine this head at £5,476.20.

106.     Terrazzo flooring £15,720 (Cash)   This is the area where none of the experts was able to state with any confidence that this damage was or could have been attributable to mining subsidence.  In my view, there is certainly a possibility that the significant fractures in the terrazzo floors could have been exacerbated by the mining, even if not initially caused by it.  I determine the Coal Authority’s liability under this head at 25%, ie £3,930.00   

107.     GAB Robins (Loss Adjusters, Ian Trotter (Monitoring) PC & D Ltd (Site investigations)  I am satisfied that all of these costs were reasonably incurred and that the claimant’s insurers should be reimbursed for them in full either under section 38(2).  Alternatively, if they were to be claimed as pre-reference costs, I would again allow them.  £6,879.31

108.     The total under issue (4) is therefore £28,285.51.

109.     Turning to issue 5, payments due to the claimant herself.

110.     McBride & Bailey (Resurfacing works)    £13,021.54   This was an estimate for the resurfacing of a long section of the unmade driveway leading into the property.  There was no evidence that any works had been carried out and there was no evidence from the claimant’s expert(s) that could possibly lead me to a conclusion that damage (if any over and above natural wear and tear) had been caused by coal mining.  This element of the claim is therefore dismissed.

111.     McBride & Bailey (Drainage works)   (£5,472.00)   I am satisfied from Mr Fleetwood’s evidence that this element of the claim was accepted by UK Coal.  Although there was argument that the works were more extensive than Mr Fleetwood had initially authorised, there was evidence that it was considered the works were being “properly done”.  Therefore, I allow this element in full - £5,472.00    

112.     Leigh Roofing Co   £784.11   As to the repairs to the roof, I do agree with Mr Fleetwood’s opinion. There was no convincing evidence from Mr Huband to counter this view.   From my inspection of the property following the hearing, it was clearly evident that the roof has been causing problems over a very long period of time.  There is also a valley gutter between two sections of roof in the vicinity of the rainwater ingress and such gutters are known to be a constant source of problems.  It should be noted that in respect of this item (as with the driveway issue), the burden of proof has not passed to UK Coal because the claimant has not shown that the nature of the damage or the circumstances surrounding this element of the claim may have been caused by mining subsidence. I therefore dismiss this element of the claim.     

113.     Wardell Armstrong & Paxton Brown  I am entirely satisfied that these costs, undoubtedly incurred in anticipation and  pursuance of a damage notice claim were justified and are reimbursable by UK Coal either under section 38(2) or as potential pre-reference costs.  I therefore determine these at £4,957.88  

114.     The total under issue (5) is £10,429.88.

115.     This decision settles the issues in this reference, and I determine compensation in the sum of £38,715.39 to be divided as: payment to the claimant’s insurers £28,285.51 and payment to the claimant £10,429.88.

116.     The parties are now invited to make submissions on costs, and when determined, an addendum to this decision will be added.

 

                                    Dated 3 September 2014

 

 

                                    P R Francis FRICS