Archive for the ‘negligence’ Category

Cockroach infestation: landlord liable in nuisance and negligence

April 5, 2012

In Sharpe v Manchester City Council ((1981 – 82) 5 H.L.R. 71, C.A. (Eng.) S was the tenant of a block of flats owned and managed by the Council. His flat suffered from an infestation of cockroaches from the time that he moved in. Eventually, he was forced to leave. The Council frequently visited his flat and sprayed it with a chemical to kill the cockroaches. This would work temporarily but the problem persisted. S had seen cockroaches enter through holes next to pipes. The Council refused, however, to treat the service ducts. They persisted in using a chemical even though a more satisfactory treatment was available at reasonable cost. This was because they wanted to use up their stockpiles of the chemical they were using. The English Court of Appeal held that their refusal to spray service ducts and their insistence on the less effective chemical despite the reasonably cheap availability of a better alternative meant that they had not taken reasonable steps to abate the nuisance. As a result, the Council was liable to S in nuisance and negligence.

Scope of the right of support from an adjoining building

July 19, 2011

Where one building enjoys a right of support in respect of  its neighbour and that support is removed without adequate replacement then the neighbour can be liable in respect of damage caused to the dominant tenement by wind flows. This is not a separate easement of protection from the weather but an aspect of the right of support. Further, when the owner of one of two adjoining properties demolishes the dividing wall between them he owes a duty of care when he foresees that the demolition will cause damage to the other property. He must take reasonable steps to prevent or minimise the known risk of damage.

Rees v Skerrett ([2001] EWCA Civ. 760, CA (Eng)) concerned two houses 14 and 14A Hastings Street Plymouth. They were divided by an internal wall. It was acknowledged that 14 had a right of support from 14A. 14A was demolished by its owners but nothing was done to shore up the (now exposed) wall to replace the support that 14A had provided. As a result, the flow of wind around the property severely damaged number 14. In Phipps v Pears it had been decided (in a case where there was no right of support) that there was no easement of protection from the weather. Nevertheless, it was decided that the owner of 14A was liable for the damage caused. The right to protection from the damage caused by the flow of wind around the property was an aspect of the right of support. It was also decided that the owner of 14A was liable in negligence. When the owner of one of two adjoining properties demolishes the dividing wall between them he owes a duty of care when he foresees that the demolition will cause damage to the other property. He must take reasonable steps to prevent or minimise the known risk of damage.

When does the cause of action accrue in latent defects cases?

January 1, 2011

When a building has been negligently designed or built, the cause of action accrues as soon as there is physical damage in a real and substantial sense, giving rise to quantifiable pecuniary loss.

In Bank of East Asia Ltd v Tsien Wui Marble Factory Ltd ([2000] 1 HKLRD 268, CFA) the Bank had redeveloped its head office. The redeveloped building had granite cladding on its concrete surface. The cladding failed and became dangerous (allegedly either because of faulty design or execution or a mixture of the two). The Bank brought proceedings in negligence against various of the professionals who had been responsible for the cladding. The central question in the Court of Final Appeal was whether the actions in negligence were time barred. They would be time barred if the cause of action had accrued before July 1985. The work had been done (and paid for) in the early 1980s. Physical damage had occurred before July 1985 but the defects were only discoverable in 1993. The majority of the CFA held that the cause of action accrued as soon as there is physical damage in a real and substantial sense, giving rise to quantifiable pecuniary loss (per Litton LJ at 310). Bokhary PJ and Lord Nicholls of Birkenhead NPJ dissented and argued that the cause of action only accrued when the defect ceased to be latent and became known to the market (per Bohkary PJ at 356).

Liability for defective design of buildings

December 30, 2010

Those responsible for designing or building a structure must take reasonable care to avoid injury or damage to persons or property caused by defective construction. They are not liable for the economic loss caused by the fact that the structure is defective but only for loss or damage to persons or to other property caused by the defect. Liability ends when the defect becomes known or manifest.

In Murphy v Brentwood District Council ([1991] 1 AC 398) Brentwood District Council had a statutory duty to check plans for new buildings and to reject them if the proposed building would be unsafe. The plans in question in the present case were negligently approved by them. The structure was inadequate and this became manifest (through cracks in the walls and pipes). There was no harm to persons nor damage to other property. The property was, however, much reduced in value as a result of the problems. The House of Lords held that the District Council was not liable (and made it clear that the builder / designer would not have been liable either). Those who design or build structures owe a duty to take reasonable care to avoid injury or damage through defects in construction. This duty is owed to those whom the builder could reasonably have foreseen would suffer such damage or injury. The House of Lords emphasised that (in the absence of a relationship where there was some special degree of proximity) there is no liability in respect of the economic loss caused purely by the fact that the building is sub-standard. So costs of repairs could not be recovered nor could there be compensation for the fact that the building was much less valuable than it would have been had it been properly designed and / or built.

In Bank of East Asia Ltd v Tsien Wui Marble Factory Limited ([2000] 1 HKLRD 268) the CFA held (Bokhary PJ and Lord Nicholls of Birkenhead NPJ dissenting) that when a building had, in breach of duty, been defectively designed or built the cause of action accrued when there was ‘physical damage in a real and substantial sense, giving rise to quantifiable pecuniary loss’ (per Litton PJ) rather than when the defect became patent.