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Measuring a measured duty


Lambert & Ors v Barratt Homes Ltd & Anor [2010] EWCA Civ 681

This was the Court of Appeal hearing of an appeal by Rochdale MBC (the anor in this case) against the judgment of HHJ Grenfell in the Technology and Construction Court. The issue was the finding that Rochdale had a measure duty of care to the Claimants and had been in breach of that duty.

The facts and history of the case are not straightforward, but the relevant facts are that Rochdale owned an area of land, which were playing fields. It sold part of the land to Barrett for development as a housing estate and retained the remainder. The Claimants live in three properties backing on to the playing field, at the corner of the part which was sold to Barratt. Before Barratt began devlopment, water on the playing field ran towards the Claimant’s side of the field, but was carried away by a culvert and drainage ditch. In carrying out the development, Barratt negligently blocked and built on the culvert and drainage ditch as it ran through their property, and their boundary fence also directed water towards the corner where the Claimants’ properties adjoined.

The Claimants’ properties were flooded on a number of occasions as a result. Water flowed from the land retained by Rochdale and, to some extent, over the Barratt land. The Claimants (or in effect their insurers) claimed for relief and damages against both Barratt, who were clearly responsible, but denied it and against Rochdale, who appeared to not be responsible to the extent that the blocking of the culvert and ditch was not its doing.

The Claim had a complex history, but at first instance, Barratt was held to be liable in damages. Rochdale were also found liable as being in breach of a measured duty to take reasonable steps to abate the nuisance comprised in the water flooding from their land to cause damage on the claimants’ land. Barratt, having sold the properties, could no longer straightforwardly effect a remedy across what had been their land.

Rochdale appealed the finding that it was in breach of a measured duty, which it said, inferentially, meant

that the duty extended to requiring Rochdale themselves to carry out the necessary relief works and to pay for them irrespective of financial contribution from Barratt who were primarily responsible. That this was the tenor of the judge’s decision appears from the discussion with him at the hearing on 12th October 2009 and from the fact that he ordered Rochdale to pay a substantial sum (£30,000) on account of damages.

In a nuisance claim such as this, the concept of ‘measured duty’ arises from the opinion of the Privy Council given by Lord Wilberforce on appeal from the High Court of Australia in Goldman v Hargrave [1967] 1 AC 645.

It was held that an occupier of land is under a general duty of care in relation to hazards, whether natural or man- made, occurring on his land to remove or reduce such hazards to his neighbour. The existence of the duty is based on the knowledge of the hazard, the ability to foresee the consequences of not checking or removing it and the ability to abate it by taking reasonable measures. […] The law must take account of the fact that the occupier has had the hazard thrust upon him through no seeking or fault of his own. He may be of modest means in relation to the magnitude of the hazard or as compared with those of his threatened neighbour. The standard ought to be what is reasonable to expect of him in his individual circumstances.

In Goldman, the issue was burning gum trees – perhaps rarely an issue in Rochdale. In Leakey v National Trust [1980] 1 QB 485, the issue was an unstable mound of earth. Leakey found that:

the defendants’ duty was to do that which was reasonable for him to do. The criteria of reasonableness included what the particular defendant could be expected to do by having broad regard, where a serious expenditure of money is required, to his means. If a risk can be readily overcome or lessened, the defendant will be in breach of duty if he does nothing or too little. But if the only remedy is substantial and expensive works, it might well be that the landowner would discharge his duty by giving the neighbour permission to come onto his land to do agreed works at the neighbour’s expense, or on the basis of a fair sharing of expense.

In Holbeck Hall Hotel v Scarborough Borough Council [2000] QB 836, the issue was damage to an hotel due to a landslip in the Defendant’s land. It was held that

The scope of the duty depended not only on the defendant’s knowledge of the hazard, the ease and expense of abatement and his ability to abate it, but also on the extent to which the damage which in fact eventuated was foreseeable, and whether it was fair, just and reasonable in the circumstances to impose a duty. Justice did not require that the defendant should be held liable for damage which was vastly more extensive than that which was foreseeable.

In the present case, Rochdale argued that the Judge at first instance had failed to properly address the scope of any measured duty of care. Rochdale argued that the duty at most extended to constructing and paying for a catch pit and drainage ditches as their part of an extensive scheme, requiring multiple permissions, to correct the drainage. This scheme being under way and would now be virtually all paid for by Barratt. The Judge had failed to properly taken into account the extent of the Claimants’ claim for relief and damages against Barratt in deciding the extent of Rochdale’s breach of duty.

The measured duty of care must be based on what steps it is reasonable to take for one landowner to prevent damage to the land of another from a hazard on their land, in the particular circumstances. The duty arises once the landowner is, or should have become, aware that the hazard has come into existence. In the present case, the fact that the hazard arose from Barratt’s blocking of the ditches was, or should have been known at the time it became apparent that there was repeated flooding. This was to be taken into account in deciding the extent of Rochdale’s duty, but only to the extent that it was clear that the Claimants had a good cause of action against Barratt for the cost of relief works.

Rochdale was not responsible for the flooding, but it was clear that the only practicable way to prevent the flooding and remove the hazard was by construction of a catch pit on the retained land and pipe the water to a sewer, at considerable cost.

Given the nature of the retained land, Rochdale could, in our view, reasonably have been expected to allow the respondents access to it free of charge to enable the catch pit to be constructed and could also be expected to provide reasonable assistance in providing, or assisting the respondents to obtain, any consents necessary to enable the drainage to be laid.

The Claimants were insured and could have recovered the costs from their insurers and there was also the value of their rights to recover the costs from Barratt (although this was not a decided issue at the time the hazard arose, and Barratt denied the claim up to judgment, in the event).

However, the question was not the position at the time the hazard arose, but the position at the time of trial, by which time plans for relief of the hazard were well advanced and most of the permissions in place. Rochdale’s duty varied with changing circumstances. By the conclusion of the trial, Barratt’s liability was established and there was an indisputable right for the Claimants to recover the whole of the costs of the relief works from them. It would not be just, fair or reasonable to impose a duty on Rochdale to carry out or pay for any part of the relief works.

The Judge overstated Rochdale’s duty. This is not to say that there was not a duty:

they were plainly under a duty to cooperate in a solution which involved the construction of suitable drainage and a catch pit on their retained land. Whether the duty would extend to carrying out those works themselves or to carrying out the other work outside the retained land is something of an open question, which the facts found by the judge do not enable this court to determine. The duty did not extend, in our view, to obliging Rochdale to meet the whole cost of the relief works. It is plain from information we do have and to which we have referred that Rochdale did over the years cooperate in the matter of obtaining consents. It is far from clear whether a breach of duty for failing sufficiently to cooperate or facilitate could be established; nor whether that would sustain any material damages claim in circumstances in which Barratt were not accepting their liability to pay, and when this was the principal impediment to the carrying out of the works.

As a last point the Claimants/Respondents argued that the ditch on the remaining part of Rochdale’s land was the source of the flooding and was an artificial construction, so that the principle in Broder v Saillard (1875-6) LR 2 ChD 692 and Hurdman v N.E. Railway (1877-8) LR 3 CPD 168 applied, being liability regardless of fault. This was rejected on the basis that it was not the construction of this remaining part of the ditch which caused the flooding. That was Barratt’s blocking of the lower part.

Appeal allowed. The claim against Rochdale was not dismissed because:

the respondents should retain the formal possibility of continuing the proceedings before the judge to obtain a determination, in accordance with this judgment, of the scope of Rochdale’s measured duty of care [presumably to the extent of the duty to co-operate] and of whether they were in breach of it. That would require factual findings which this court is unable to make.

But the parties were urged to reach a sensible accommodation to avoid returning to the Judge.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

1 Comment

  1. Ray Allen

    I have found this article very similar to a foreseen event that may result in a claim on our town council who have failed (perhaps) to maintain the drainage on a large sports field. Flooding has occurred in two separate parts of the field and has spilled onto neighbouring properties flooding a house and a garage. The council have now allowed part of the field to be leased and an athletic track be built which many think will make matters worse. It will be interesting to see if the construction alters the way in which the field drains!

    Many thanks for the article, very helpful.


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