Dodd Properties (Kent) Ltd v Canterbury City Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MEGAW,LORD JUSTICE BROWNE,LORD JUSTICE DONALDSON |
| Judgment Date | 21 December 1979 |
| Judgment citation (vLex) | [1979] EWCA Civ J1221-5 |
| Docket Number | 1973 D. No. 444 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 December 1979 |
[1979] EWCA Civ J1221-5
Lord Justice Megaw
Lord Justice Browne
and
Lord Justice Donaldson
In The Supreme Court of Judicature
Court of Appeal (Civil Division)
(On Appeal from Mr. Justice Cantley)
MR. ROGER TITHERIDGE, Q.C., and Mr. MICHAEL McMULLAN (instructed by Messrs. Lewis & Dick) appeared on behalf of the Appellants (Plaintiffs).
MR. OLIVER POPPLEWELL, Q.C., MR. STEPHEN DESCH and MR. ANTONY EDWARDS-STUART (instructed by Messrs. Ponsford & Devenish, Tivendale & Munday) appeared on behalf of the Respondents (Third Defendants).
This is an appeal from a judgment of Mr. Justice Cantley.
The first plaintiffs, Dodd Properties (Kent) Ltd., are the owners of a building in Rose Lane, Canterbury, known as Marlowe Garage. The second plaintiffs, Marlowe Garage (Canterbury) Ltd., have been the occupiers of Marlowe Garage as lessees of the first plaintiffs. They carry on their business there as motor-car dealers and they sell petrol, oil and car accessories.
In 1968 the first defendants, the Mayor, Aldermen and Citizens of the City of Canterbury, erected a large multi-storey car park close to Marlowe Garage. The second defendants, Truscon Ltd., were the main contractors; the third defendants, Frankipile Ltd., were their sub-contractors for the foundations of the car park. As a result of their operations, damage was caused to the plaintiffs' building. Liability was for long denied, but shortly before the action came on for hearing before Mr. Justice Cantley in 1978 liability was admitted in nuisance by the second and third defendants, though the extent of the damage was in issue, and also the basis of assessment of the amount of the damages to which the plaintiffs were entitled. The first defendants did not formally admit liability. But they took no part in the proceedings, having received an undertaking of indemnity from the other defendants.
The judge held that the first defendants also were liable. They are not parties to the appeal. There is no dispute as to liability. The issues are as to damages.
No question of fact is now in dispute, the judge's findings of fact are accepted as to the extent of the physical damage and as to other matters.
On the question of the extent of the damage, the judge to a large degree accepted the evidence of the defendants' experts. On their evidence, the necessary repairs would, at the prices prevailing at the time of thehearing in 1978, cost about £30,000. On the evidence of the plaintiffs' expert, the repairs required were much greater and the cost much higher.
The question which remained, and which is the primary issue before us, is this: by reference to which of two dates is the cost of the repairs to be ascertained, for purposes of arriving at the amount of the defendants' liability for their tort? The plaintiffs say that the relevant date for this purpose is the date of the hearing, or of the judgment: that is, that the 1978 prices axe relevant and decisive. The defendants say that the relevant date is 1970 and the relevant prices are the 1970 prices. As a result of inflation, the difference between the computations at those respective dates is very large. The 1978 figure, for the repairs which the judge held to be required, is £30,327. The 1970 figure, for the same work, is approximately £11,375.
The second plaintiffs also have a claim. It gives rise to the same issue as to the proper date of assessment. The second plaintiffs' claim arises out of prospective interruption of their business during the time that would be required for the carrying out of the appropriate repairs, if and when that work is done. The figure, if the repairs were to be carried out in 1978 would be £11,951. In 1970 the corresponding amount would have been £4,108.
Taking the first and second plaintiffs' potential entitlements together, the sums payable by the defendants as damages (apart from any question of interest) would be: on the 1970 assessment, £15,483; on the 1978 assessment, £42,278.
Mr. Justice Cantley held that in law, in the circumstances, judgment had to be given on the 1970 basis. He also awarded interest, making the total payable by the defendants to the first and second plaintiffs £22,974,20.
Against that judgment, the plaintiffs appeal and the defendants cross appeal. The plaintiffs say that the judge was wrong in law to make his assessment of damages on the basis of the cost of the repairs in 1970. Theysay that he should have taken the 1973 computation. They say, in the alternative, that, if they should be wrong on this, which is their first and main contention, then the judge ought to have awarded interest from an earlier date and at a higher rate. They accept that, if they are right on their first contention - that is, the acceptance of 1978 as the date by reference to which the cost of the repairs is to be assessed - then they could not claim interest.
The defendants' cross-appeal raises an issue affecting the damages of the second plaintiffs only. The defendants say that, since the judge held that it was only "just about established" that it was probable that the repairs would in fact be carried out after his judgment, he ought not to have awarded to the second plaintiffs the full amount of the prospective loss to them arising from the interruption of their business which would be caused by those potential repairs. The judge, say the defendants, should have awarded the second plaintiffs only, say, 60 per cent of the total prospective loss by interruption, because the chance that the loss would in fact occur was no greater than a chance of that order.
On the first, and main, issue raised by the plaintiffs, it is necessary to see what the learned judge found were the reasons why the repairs for this damage to the Marlowe Garage, caused in 1968, had still not been carried out when the action was heard in 1978. Because I think it is important to see precisely what the judge held in this respect, I shall quote the judge's own words from the transcript of his judgment, page 9-G to page 10-A: "I find that the first plaintiffs could probably have raised the money for repairs but this would have increased their annual losses and their financial stringency. As a commercial decision, judged exclusively from the point of view of the immediate and short-term welfare of the companies, it was reasonable to postpone incurring the very considerable expense of these repairs while noharm was being done to the building by the delay in repairing it and while these three rich defendants with apparent if not genuine belief in the validity of their defences were firmly denying liability to make even a contribution."
The learned judge then referred to the well-known, much-discussed, case, Owners of Dredger Liesbosch v. Owners of SS Edison (1933) AC 449. He said, at page 11-B: "In the case of destruction of a chattel, the normal measure of the damage is the market value at the time of the loss. That was the measure of damage applied in Liesbosch". The learned judge then cited from the judgment of Lord Justice Denning in Philips v. Ward (1956) 1 WLR 471 at page 474: "The general principle of English law is that damages must be assessed as at the date when the damage occurs, which is usually the same day as the cause of action arises. … A fall thereafter in the value of money does not in law affect the figure, for the simple reason that sterling is taken to be constant in value". Although this may not affect the statement of "the general principle", I think that the reasoning as to sterling having to be taken to be constant in value is unfortunately no longer good law, having regard to the facts of life and the recent authoritative decisions, including Miliangos v. George Frank (Textiles) Ltd. (1976) AC 443.
Mr. Justice Cantley then said (page 13 A-H): "No authority has been cited to me and in my very limited opportunity lately I have discovered none for myself where a court has considered the time at which damages are to be assessed in the cases of buildings damaged and put in need of repair by a tortious act. If there is no authority on that precise point, it may be because no-one has ever before thought to contend that the general principle did not apply to it. The general principle is that damages must be assessed as at the date when the damage occurs. In my view, that general principle applies here. It is not, of course, to be rigidly applied as a rule of thumb,fixing the time rigidly by the calendar and the clock. The damage may be concealed by some fault of the wrongdoer or not reasonably discoverable by the victim until some time after it has first appeared, see e.g. East Ham Corporation v. Bernard Sunley & Sons Ltd. (1966) AC 406 and Applegate v. Moss; Archer v. Moss (1971) 1 QB 406.
"Moreover, repairs cannot usually be put in hand at once and at prices ruling at the very date of damage. There may have to be inspections and specifications and tenders and an available contractor may have to be found before the work can be started.
"Furthermore, the nature and circumstances of the damage may be such that it would be imprudent and possibly wasteful to begin the work before waiting longer to ensure that no further damage is going to develop from the same cause. This is particularly true when the foundations of a building have been disturbed by vibrations.
"I would put it in this way. The appropriate damages are the cost of repairs at the time when it was reasonable to begin repairs. Whether the time is reasonable must be judged objectively and not taking into account such matters as...
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