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Shaken but not successful – the problems of nuisance


Dr Amanda Lindsay v Berkley Homes (Capital) PLC (2018) QBD (TCC) 13/07/2018 (Extempore judgment reported on Lawtel)

Dr Lindsay owned a leasehold flat. She had brought a claim (in person) arising out of works to demolish a concrete basement to the building carried out as part of a development. Berkley Homes were the name Defendant and, fo the purposes of this hearing, assumed to be the developer. The works had been carried out by a sub-contractor.

Dr L alleged that vibration from the works had caused cracking to her flat. Her claim alleged breach of duty of care in tort; breach of statutory duty; nuisance; and breach of the rule in Rylands v Fletcher (1868) L.R. 3 H.L. 330.

The Defendant applied for summary judgment against Dr L.


On the duty of care in tort, the usual rule that a defendant was not liable for negligence committed by an independent contractor carrying out the work for which they had been engaged applied. None of the exceptions ((a) there had been a lack of care in selecting the contractor; (b) there had been a breach of a non-delegable duty; and/or (c) the relationship between the defendant and the contractor was akin to the employer/employee relationship) applied. Dr L had not set out how the alleged duty of care arose in her particulars.

On breach of statutory duty, Dr L had pleaded a breach of the Control of Pollution Act 1974 s.60 and s.61. Both sections were concerned with noise, rather than alleged damage to property.No statutory duty arose.

On nuisance, the test was whether the hirer had authority to control the manner of execution of the act in question by the independent contractor, Biffa Waste Services Ltd v Maschinenfabrik Ernst Hese GmbH (2008) EWCA Civ 1257. That was not the case here and the ‘exceptionally dangerous activity’ exception did not apply.

On Rylands v Fletcher strict liability, this was a limited rule which applied to the escape of a dangerous material or ‘thing’ which had been brought onto the defendant’s land onto the land of the claimant. Vibrations were not the “thing” that had been brought onto the site, but were what had escaped from the site.

Summary judgment to the Defendant


A clear illustration of the difficulty in nuisance claims where independent contractors are involved, and of the sheer complexity of bringing a claim for damages to your property.

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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