Farley v Skinner
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STUART-SMITH,LORD JUSTICE MUMMERY,Lord Justice Stuart-Smith,LORD JUSTICE CLARKE |
| Judgment Date | 06 April 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J0406-6 |
| Date | 06 April 2000 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: FC3 1999/7524/A2 |
[2000] EWCA Civ J0406-6
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QBD (HH Judge Baker QC
sitting as a judge of the High Court)
Lord Justice Stuart-smith
Lord Justice Mummery and
Lord Justice Clarke
Case No: FC3 1999/7524/A2
QBENI 1999/0643/A2
Mark Simpson (instructed by Messrs Williams Davis for the Appellant)
Martin Spencer (instructed by Messrs Irwin Mitchell for the Respondent)
The Claimant's pleaded case
By his 'Re-amended Statement of Claim' the claimant pleaded the following matters:
"1. The defendant is a chartered surveyor in practice at Hurstpierpoint in Sussex. In or about December 1990 he accepted the plaintiff's instructions to inspect and report on a private dwelling-house called Riverside House, Blackboys, East Sussex ('the property'). The plaintiff explained, as was the case, that he was considering the purchase and refurbishment of the property for his own use and occupation, especially for weekends and holidays. He specifically asked the defendant to advise whether the property might be affected by aircraft noise.
The defendant accepted those instructions and accordingly owed the plaintiff a duty to inspect and report on the said property with the skill and care to be expected of a reasonably competent chartered surveyor.
The defendant inspected the said property on Monday 10 December 1990. On Monday 17 December 1990 he reported to the plaintiff in writing. He did so knowing that the plaintiff would rely on his report in deciding whether to purchase and refurbish the property. But the defendant failed to inspect and report with reasonable skill and care. On page 35 of his report he wrote:
"You have also asked whether you [sic] felt the property might be affected by aircraft noise, but we were not conscious of this during the time of our inspection, and think it unlikely that the property will suffer greatly from such noise, although some planes will inevitably cross the area, depending on the direction of the wind and the positioning of the flight paths."
That advice was negligent. Had the defendant taken reasonable care he could have ascertained that the property was a short distance from a navigation beacon and that from time to time, especially at weekends, its use and enjoyment was badly affected by aircraft noise."
Paragraphs 6 and 7 plead the claimant's purchase and expenditure of substantial sums in refurbishment. Paragraph 8 alleges that it was not until early 1985 when the claimant took up residence that he discovered that the property was affected by aircraft noise. The date is wrong and should be June 1991.
Paragraph 9 claims the loss and damage as follows:
"By reason of the defendant's negligence as aforesaid the plaintiff has incurred loss and suffered damage; and he claims damages on his own behalf and as trustee for himself and Mr David Parsons.
Particulars
(i) The value of the property, had it been (in respect of aircraft noise) as described by the defendant on page 35 of his report, would have equated with the price paid by the plaintiff or thereabouts. Its true value, affected as it is by aircraft noise, was and is substantially less
(ii) The plaintiff's use and enjoyment of the property has been impaired by aircraft noise."
By amendment there was a claim for £63,000 —the cost of removal on the basis that the claimant had decided to sell and move house because of the noise. He later changed his mind and that claim was deleted. There was also a claim for the cost of refurbishment; but that claim was also deleted by amendment. I have set out the material part of the pleadings because it is of some importance in this case to see how the case was pleaded and presented in the court below.
The Judge's findings
In his judgment, given on 27 May 1999, His Honour Judge Peter Baker QC, sitting as a judge of the High Court, accepted the claimant's account of the conversation in which the instructions were given to the defendant. As pleaded in the 'Further and Better Particulars' it was said:
"The plaintiff spoke to the defendant on the telephone at great length some weeks before the report was written. He cannot recall the precise words he used in the course of this conversation (which dealt with a number of matters) but they were to this effect: "I want you to check that there is no problem with aircraft noise, because the house is within a fifteen mile radius of Gatwick. I want you to make sure it is not on a flight path and is not affected by aircraft noise." "
In evidence he said:
"I want you to check whether there is a problem with aircraft noise because the house is within 15 miles' radius of Gatwick. I want you to make sure it is not on a flightpath and that it is not affected by aircraft noise. Alternatively I asked him to check whether or not the property would be affected by aircraft noise particularly because of its relative proximity to Gatwick. I said I particularly did not want to be on a flightpath."
The problem with aircraft noise is that between about 6–8am and between 5.30–7pm aircraft coming into land at Gatwick tend to stack up at what is called the Mayfield Stack, if they cannot find a slot to land. The judge described it as follows:
"The position is, with regard to aircraft noise, as is clear from the documentary evidence that has been obtained, that there is the Mayfield stack which is not far away which aeroplanes join at a certain height and maintain in a sort of spiral, as it were, until there is a slot ready for them to land at Gatwick. That means that one aircraft may pass and repass on more than one occasion."
and
"It is fair to say that these aircraft are some miles away, and they are not below, I think, usually, about 6,000 feet although very occasionally there is one lower than that. Nobody claims that it is at Mr Farley's house, rather like having a house at the end of a B52 runway, but it is a question of degree, and Mr Atwood's evidence was called to help me on that matter."
Mr Atwood was a sound engineer called on the claimant's behalf. The house was nowhere near the flight path in and out of Gatwick, that being 20 miles to the north.
The judge held that the defendant was liable. It is not entirely clear to me in what respects the judge held Mr Skinner to have been negligent. All he says is, "It seems plain to me that Mr Skinner was not properly or adequately carrying out his instructions." But it seems to have been accepted by the defendant that if the instructions were as the claimant alleged, Mr Skinner should have made enquiries of the Civil Aviation Authority at Gatwick, and that if he had done so, he would have learnt of the Mayfield Stack. Be that as it may, and despite what might be thought somewhat imprecise instructions and a guarded answer given by Mr Skinner in his report (set out in paragraph 5 of the 'Re-Amended Statement of Claim'), the judge's finding of negligence is not challenged by the Appellant in this court.
The judge rejected the claimant's principal claim for diminution in value of the property in the sum of about £70,000. In so doing he preferred the evidence of the defendant's expert witness; there was also agreed evidence of three of the claimant's neighbours who said they were not in the least troubled by aircraft noise and that of a chartered surveyor who was familiar with properties in the neighbourhood who said that aircraft noise was not a factor raised in relation to property in the area and Blackboys was not materially affected by aircraft noise.
However, the judge awarded the claimant £10,000 for distress and inconvenience caused by the noise. The judge's findings with regard to the effect on the claimant were as follows:
"Firstly he is particularly vulnerable because he has a habit, practice, of being an early riser and of wishing, when clement weather conditions prevail as even in this country occasionally do, to sit outside on his terrace, or whatever, and enjoy the delightful gardens, the pool and the other amenities which is made pretty intolerable, he says, and I accept from his point of view between say, the hours of 6 o'clock and 8 o'clock in the morning which is the time when he would be minded to do this.
Likewise, pre-dinner drinks are not made the better for the evening activity in the sky not far away. That he is not a man, if I may say so, with excessive susceptibilities is shown by the fact that he did his best to grit his teeth and put up with it but, as he ultimately said, "Why should I when I had endeavoured to cover this particular point in the instructions that I had given to a professional man who I had paid to do this?" He finds it a confounded nuisance, and this is a matter that, of course, he will be stuck with. It is not a case of something like drains or dry rot or what have you that he can do anything about. Short of buying Gatwick and closing it down, this is a matter that will continue."
The judge referred to the case of Watts v Morrow [1991] 1 WLR 1421 and said, "It seems to me that the interference was very much less than the real discomfort that has been sustained by Mr Farley in this case." It is against the award of £10,000 that the defendant appeals to this court.
Previous hearing of the Appeal
The Appeal was first heard by a court consisting of Judge and Hale LJJ. They did not agree in the result. However, their judgments appear to have been handed down in the usual way. Whereupon Mr Simpson, on behalf of the Appellant, applied, pursuant to the Supreme Court Act 1981, Section 54(5), for...
To continue reading
Request your trial