Jones & Anor v Ruth & Anor [2011] EWCA Civ 804

We missed this one when it came out in July 2011. Not sure why – sorry. This was an appeal of a claim in nuisance, trespass, harassment and personal injury. The claim arose out of building works on an adjoining property. The appeal is worth looking at on issues of quantification of damages for trespass and the foreseeability of personal injury.

Jones and Lovegrove owned a 3 storey terrace at 105 Lower Thrift Street. Mr & Mrs Ruth owned 103 and 101 Lower Thrift Street, both originally two storey terraces. Between 2002 and 2007, the Rs gutted and rebuilt 103 into a 3 storey house with an enlarged kitchen and new garage. Between 2007 and 2010, the Rs did the same thing to 101.

In February 2008, Ms Jones and Ms Lovegrove brought a claim in nuisance, trespass, harassment and personal injury. ON nuisance and trespass, they claimed that:

during the works to 103 they suffered from excessive and persistent noise and vibration which affected 105; that the vibration caused cracking in the walls of 105 which continued until about March 2006; that the defendants had trespassed by making holes in the gable end wall of 105 and by the insertion of purlins and had also damaged the roof; that there had been trespass on to their garden by the erection of scaffolding and the storage of building materials, particularly during the re-building of the garage at 103; that the boundary wall had been damaged and in part demolished during the works; and that there had been numerous other incidents of rubbish being thrown into their garden and of other anti-social behaviour.

On harassment and personal injury:

The claim for personal injury was made by the first claimant, Ms Jones, who it was alleged witnessed the damage to 105 and, as a consequence, suffered from severe back pain brought on by the anxiety and depression which this caused. She has not been able to work since April 2005 and requires some form of cognitive behaviour therapy as well as physiotherapy and counselling to assist her recovery. These symptoms were also, she alleged, the result of what amounted to a campaign of harassment against her and Ms Lovegrove by the defendants who acted in an aggressive and intimidatory manner towards them; refused to provide any information about the progress of their building works; and repeatedly ignored their requests to reduce the noise and to make good the damage which their works had caused.

There was also an incident when either the Rs or their children dropped notes from an upstairs window which contained various offensive and threatening remarks about lesbians.

The Defendants made no offer to settle and the matter went to trial.

HH Judge Wilcox found that the gable wall in question was a party wall so raising the roof and inserting ties was an act of trespass. The new garden wall had been built on the land of 105 and must be demolished and rebuilt on 103’s land. But he declined to grant an injunction for the removal of the new upper floor of 103.

Damages for nuisance – for protracted and substantial disruption, noise, loss of privacy over 4 years where the works should reasonably have taken no more than 1 year – £30,000 for loss of amenity and enjoyment.

Damages for trespass were said to based on “the value to the Defendants of the unabated nuisance constituted by the stealing of support for their raised roof and attached 3rd storey. The value to their house is irreversibly enhanced.” Assessed at £45,000

On the harassment, the Judge found a campaign of harassment from 2003, with particular attention to the notes. £6,000 awarded.

No award was made on Ms J’s claim for personal injury. The Judge considered this in the context of the nuisance and trespass claims and found that it was not made out that the psychiatric injury stemmed from witnessing the damage to the Claimants’ property. It did not start until a year later after Mr R failed to adhere to an agreement reached in mediation. Further, in a discussion at the time of giving judgment, the Judge had stated that the personal injury could not be found to flow from the harassment (although he had stated that it followed Mr R’s conduct) and further that:

reasonable foreseeability of the injury is a test in harassment as it is in negligence. Mr Noble [for Ms J] submits to me that is the wrong claim. He persuades me that it is arguable and since it is arguable in the light of this case and what rests upon it, it is right that I should give leave to appeal on that aspect of the matter only. That is, whether reasonable foreseeability of the injury would be necessary.

If damages for personal injury were to be awarded, they were agreed at £28,750. Loss of earnings were assessed by the Judge at £115,000 over 5 years, but no award was made.

Costs awarded to the Claimants at the indemnity rate, in view of the R’s conduct, although the damages awarded were substantially less than the amount set out in the claim.

Ms J and Ms L appealed on the personal injury point. They argued that the Court was wrong not to find that the personal injury followed from the harassment, and wrong to say that the test for personal injury under s.3 Protection From Harassment Act 1997 included reasonable foreseeability. They also sought interest on damages.

Mr & Mrs R cross-appealed on the award of damages for trespass, arguing that a claim based on enhancement of value to 103 was not part of the claim and unsupported by evidence, and on the costs award on the basis that the damages awarded were so substantially less than those claimed that the R’s were substantially successful at trial.

In the sole Judgment of Patten LJ, the Court of Appeal upheld Ms J and Ms L’s appeal.

Section 3 of the 1997 Act provides:
“(1) An actual or apprehended breach of section 1 may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question.
(2) On such a claim, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment.”

There were no previous decisions on whether foreseeability of injury was necessary. Majrowski v. Guy’s and St. Thomas’ NHS Trust [2006] UKHL 34 referred to ‘ordinary principles of causation and mitigation’ applying to such a claim, but did not refer to foreseeability. An obiter comment in Laing Limited v Yassin Essa [2004] EWCA Civ 2 on the other hand suggested it was not a test under the 1997 Act.

The appelants argued that:

tortious conduct of this kind falls into the group of torts (such as assault) which in most cases involve the intentional infliction of harm and in respect of which issues of foreseeability are irrelevant. The tort of harassment is purely statutory and s.3 of the 1997 Act specifies no conditions for the recovery of damages beyond the requirement that the harassment should have caused the injury or loss complained of.

This was accepted as right. The first instance Court was therefore wrong to exclude the claim for personal injury and damages should be awarded at the agreed £28,750. The loss of earnings claim awarded in the sum assessed by the first instance court of £115,000. Any remaining elements of the claim (medical expenses, future loss of earnings) to be remitted to the High Court for further hearing if Ms J wished to pursue them. Interest awarded on the personal injury claim from date of issue and from 2005 at half the prevailing special rate on the loss of earnings. The damages otherwise awarded at first instance did not bear interest as they were awarded on the basis of the conditions at the time of trial.

On the cross-appeal on the award of damages for trespass, the claim was for an injunction to remove the new floor. The court had

“jurisdiction under s.50 of the Senior Courts Act 1981 to award damages in lieu of an injunction and can do so on a basis which compensates the claimant for the loss of his property rights by awarding him damages in a sum equal to the amount which he could reasonably have demanded for a licence.”

Jaggard v Sawyer [1995] 1 WLR 269. A similar approach could be taken in common law nuisance, Whitwham v Westminster Brymbo Coal & Coke Co [1896] 2 Ch 538. The basis for the assessment of damages was what the Defendant would have paid for being able to carry out the works.

There was no evidence of the increased value before the first instance court. It appeared that the Judge may have underestimated the increased value, as the 103 was bought for £60,000 and the current value was now agreed at £154,000. The Judge was reasonable in assuming an increase in value of some £90,000, although not all was attributable to the extra storey. The Judge had taken that as £45,000.

But where the Judge at first instance erred was in basing the damages solely on the increase in value. This was just the starting point for a calculation on the wayleave basis.

The issue for the Court is to determine what the parties, acting reasonably, are likely to have agreed as payment for the necessary licence. As part of that hypothesis one has to assume that the parties would have acted as willing grantors and willing grantees. Consistently with this, the defendants would not have either withdrawn from the negotiations or been willing to give up the entirety of any value attributable to the planned works. Similarly the claimants would not have refused permission except upon payment of the lion’s share of any increase in the value of 103.

In the current case, the cost of a licence would be unlikely to be more that a third of the prospective increase in value, so an award of £15,000 should be made in place of the £45,000. That part of the cross-appeal allowed.

On costs, while the Defendants were successful in defeating significant parts of the claim, the costs award had been made on the basis of the belligerence and non-cooperation of Mr R. The matter had gone to a 8 day trial in which every piece of evidence was challenged and tested. The bulk of the 8 days were taken up by the nuisance, trespass and harassment claims. What should have been a straightforward claim heard in the County Court ended in the High Court for 8 days because of the Defendants’ approach. The Judge below had not made an error in the exercise of his discretion in awarding costs, Islam v Ali [2003] EWCA Civ 612, and had taken into account the Defendants’ points. Further, the Defendants had failed to take any steps to protect their position on costs against an exaggerated claim by making a Part 36 offer. The cross appeal on costs dismissed.

It is potentially useful to have confirmation on the foreseeability of injury resulting from harassment point. Also useful is having the approach to assessment of damages for trespass where an increase in value to property has resulted confirmed.