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Not fixing a hole where the rain gets in…


Horridge (t/a Newford Parts Centre) v Downshire House (Reproductions) Ltd [2010] EWCA Civ 777

Continuing a brace of nuisance cases, we have this appeal from a split trial on liability on a nuisance claim. The properties involved are both commercial premises, but the principles and issues involved are equally applicable for residential properties.

Horridge (H) and Downshire House (D) occupied adjoining premises. H’s single storey building abutted D’s taller one such that H’s roof was supported but timber purlins set into the wall of D’s building. One of these purlins fell away from the wall, such that the roof subsided and pulled away from the wall, allowing water penetration into H’s premises, and damage to stock. The roof had to have substantial repairs. The failed purlin turned out to be suffering from wet rot.

H claimed against D on the basis that a downpipe on D’s premises had broken so that rainwater from the guttering discharged directly onto H’s roof at the point where the failed purlin was and that this had caused the purlin to suffer wet rot. D defended on the basis that H had failed to maintain his roof properly, particularly flashing to the edge of the roof at the affected point, prior to the collapse of the purlin and that the broken downpipe could not be shown to have caused the damage.

At the trial on liability in front of a Recorder, there were competing experts’ reports. These concurred that D’s wall above and below the roof line, was saturated due to the missing downpipe, but disagreed on the cause of the wet rot to the purlin. D’s expert maintained that but for the missing flashing, there would not have been sufficient water damage to the purlin, where H’s expert maintained that there would have been water damage to the purlin in any event and that the defective flashing may istelf have been caused by the flow of water onto that part of the roof. H, in cross examination, conceded that there had been water penetration, to a lesser degree to that area of the premises prior to the failure of the purlin and fall of the roof. The Recorder preferred the evidence of H’s expert, finding that the defective flashing was not as significant for the water affecting the purlin as D maintained. The downpipe had been missing since 1998, so there were many years of the water flow, and there were not defects to the roof in other areas unaffected by the water discharging onto it. Thus H had succeeded in establishing liability and to a degree, causation.

D appealed on the grounds that the Recorder had not paid sufficient attention to H’s admission that there had been water penetration to that area prior to the failure of the purlin and therefore failed to find as he should that the nuisance was the only or principle cause of the damage.

This was vital to D’s case because D had not pleaded contributory negligence by H. In fact, D had simply denied the nuisance or that the nuisance caused the damage claimed. (There can be no claim for nuisance at common law without damage. At trial it was common ground that there was water discharge onto H’s roof and that this could consititute nuisance. The issue was whether the nuisance was the cause of the damage claimed). D’s case was thereby all or nothing. The Recorder is noted as referring to apportionment in the next stage of the trial on several ocasions, but as the Court of Appeal point out, there could be no basis for apportionment where there was no defence of contributory negligence.

The Court of Appeal considered the facts as established at trial and the Recorder’s treatment of the competing expert evidence. The challenge by D was essentially to the adequacy of the Recorder’s reasoning

Such challenges on appeal are rare but less so than they once were, since Flannery v. Halifax Estate Agencies [2000] 1 WLR 377 and English v. Emery Reinbold and Strick [2002] EWCA Civ 605. The latter case emphasises the obligation of a judge to explain the basis of his decision on any given issue sufficiently for (a) the parties, especially the losing party, and (b) an appellate court to understand why he has come to the conclusion stated.

D’s challenge failed. “It would be wrong to expect the judge’s reasoning to be fully developed and exposed in all cases and on all points” and in this case the Recorder had clearly had the point at issue in mind and referred to it in the right context. He concluded that H’s ‘admission’ did not undermine the preferred expert evidence of H’s expert.

For my part, it seems to me that this was an eminently reasonable conclusion. The question, in the end, was what it was that had caused the purlin to become saturated with water to the extent of developing wet rot, and thereby falling away from the wall and failing to support the roof. There was, really, no doubt that a major factor must have been the water falling down from Downshire’s roof due to the absence of a downpipe, whether directly onto Mr Horridge’s roof or down the surface of Downshire’s wall, thereby saturating the brickwork all the way down. The absence of any similar symptom elsewhere on Mr Horridge’s roof was inconsistent with it having occurred even if the downpipe had not failed.

[…] Mr Horridge’s evidence of some water penetration in the relevant area before the failure of the purlin is, as the recorder thought, of much less significance than Mr Boyd sought to persuade him and, in turn, us. Not only may it have resulted from other causes than defective flashing (such as slipped slates), but even if it did show a failure of a flashing, it does not show that this had occurred long enough before the failure of the roof for the defect in the flashing, and Mr Horridge’s failure to repair it, to have been the cause of the purlin becoming rotten and therefore failing.

This was a paradigm case of contributory negligence, not one of no causation at all. But in any event D hadn’t established how long the flashing had been defective, or how long there had been water penetration prior to the failure of the purlin. D could not then establish that this was of sufficient duration to be the only cause of the damage to the purlin.

The Recorder’s judgment was clear and convincing. Appeal dismissed.

The lesson here, for Defendants at least, is that any alternative causation of damage pleaded has to be fully backed up, and that if contributory negligence is not pleaded, liability will be an all or nothing matter.

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.


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