Jones v Stroud District Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NEILL,LORD JUSTICE FOX |
| Judgment Date | 07 May 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J0507-3 |
| Docket Number | 86/0422 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 May 1986 |
[1986] EWCA Civ J0507-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
(CIVIL DIVISION)
From: Mr victor
Wellings, Q.C.
(sitting as
Official Referee),
Q.B.D., London.
Royal Courts of Justice,
Lord Justice Fox,
Lord Justice Neill (Not Present)
and
Lord Justice Ralph Gibson
86/0422
and
MR CHRISTOPHER SYMONS (instructed by Messrs Herbert Smith & Co.) appeared on behalf of the Appellants (Plaintiffs).
MR PHILIP NAUGHTON (instructed by Messrs Rowberry Morris,Gloucester) appeared on behalf of the Respondents (Defendants).
Before the court are an appeal and a cross-appeal from the judgment of Mr Wellings, Q.C., sitting as an Official Referee in an action brought by Mr and Mrs Jones (the present appellants) against the Stroud District Council (the respondents).
By his judgment given on 23 May 1984 the Deputy Official Referee dismissed the claim by Mr and Mrs Jones (whom I shall call the plaintiffs) against the Council and in addition awarded the Council one half of their taxed costs.
The action concerned a dwelling house known as Jorro at Edge in Gloucestershire. The house was built in 1964 for a Mr Joiner. Since the house was built it has suffered damage by subsidence. The plaintiffs' claim against the Council is that the Stroud Rural District Council (who were the predecessors of the Council) were in breach of their statutory duties and were negligent in approving the plans for the erection of the house and in failing to inspect the foundations at the time of erection.
Certain matters which were at issue at the trial are no longer contested by the Council. Thus there is no appeal against the finding of the judge that the Rural District Council were, in the circumstances, "negligent in not making enquiries of the builder, in not giving consideration to the question of whether to inspect and indeed in not inspecting": see judgment, page 24-C.
Furthermore it is now accepted that the Council are liable as successors to the Rural District Council for any actionable breach of duty or negligence by the Rural District Council.
The following matters, however, remain in dispute and were debated before us in the course of the hearing:
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(1) Whether the plaintiffs had at any time had a cause of action against the Council?
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(2) If so, whether this cause of action is barred by the expiry of a period of limitation. It is common ground that the period of limitation is six years. The writ in the action was issued on 1 May 1981.
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(3) If the plaintiffs have a cause of action against the Council and such cause of action is not barred by the expiry of the limitation period, what is the measure of damages?
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(4) Whether, if the appeal by the plaintiffs fails, the Council are entitled to the whole of their costs of the hearing before the judge. The order made by the judge was that the plaintiffs should pay one half of the Council's costs: judgment, page 26-G.
Before I deal with these issues in turn I should make some further reference to the facts.
Mr Joiner made an application for planning permission to build the house in April 1963 and in the same month his architects gave notice of intended building operations. The house was to be built on a site on which there was a quantity of fill material. The architects therefore decided that substantial parts of the foundations, namely, those of the south-west elevation and the western half of the north-west elevation of the house, should consist of reinforced concrete ground beams resting on short bored piles. These proposed foundations were shown in the drawings which were submitted at the time that notice was given of intended building operations, and in the drawings the proposed building was described as a detached bungalow with integral garage.
Construction of the house began in Kay 1964 and the house was completed towards the end of December 1964. When the house was constructed, however, no piling was used in the foundations, which consisted of concrete strip foundations throughout.
The absence of piling on the north- east elevation was not of importance because on this side the house was built on intact ground, but underneath the south-west part of the house lay insufficiently compacted fill. Furthermore, underneath the south-west elevation was a brick wall which had formed part of a previous building on the site.
The plaintiff bought the house in 1975. In the following year, between June and December 1976, the plaintiffs carried out some improvements and other alterations to the house, including the installation of a new bathroom and some drainage work which involved excavating under the kitchen. In addition a retaining wall was built.
The judge found as a matter of fact, however, that none of this work caused or contributed to the damage to the building which was subsequently discovered. Nor is it necessary to make more than passing reference to the fact that at about Christmas 1975 the plaintiffs noticed that the internal staircase had moved away from its anchorage at the lower level.
It seems clear that the judge accepted the evidence of the plaintiffs' expert witness that this movement was attributable to poor workmanship by the builder and was unrelated to the damage of which I must now make mention.
At about the end of 1976 or the beginning of 1977 Mr Alfred Jones noticed, for the first time, that the corner of bedroom 4 had started to move. He also noticed that a window in what was described as wall 2 had become hard to open and that water had begun to pond on the flat roof of bedroom 4 and to leak into the bedroom.
On further examination it was found that the felt covering of the roof in this area was cracking in all directions. Mr Jones attempted some temporary repairs with the use of liquid bitumen but he found that as soon as he patched the roof in one place water leaked into bedroom 4 from somewhere else.
It was said on behalf of the plaintiffs that the house internally became noticeably and unusually damp and that the movement in the corner of bedroom 4 seemed to be getting gradually worse.
There was a large crack "zig-zagging" down the internal surface of the north wall of bedroom 4. There was also other damage in the vicinity of which Mr Jones and his witnesses gave some account in their evidence.
At about the beginning of 1977 the plaintiffs instructed Mr Michael Hughes, a chartered engineer and a member of the Institution of Civil Engineers, to advise them. He inspected the house on several occasions and prepared two reports, one in February 1977 and one in September 1977.
Mr Hughes expressed the opinion that the damage in walls 1 and 2 was serious and that the leaking of water into bedroom 4 as described by Mr Jones was caused by the movement of those walls. Having made his examination and having excavated two trial holes Mr Hughes expressed the opinion that the main causes of the damage were:
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(a) subsidence of the subsoil due to the extreme climatic conditions of 1976;
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(b) footings were bearing on materials susceptible to subsidence;
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(c) some weakness in the basic construction concept;
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(d) water penetration to the underside of the concrete footings in a somewhat mediocre clay material which had allowed the footings and the cavity wall columns to settle away from the basic timber frame building.
He also expressed the opinion that the exposed ground surface to the west of the building was not well drained and that this allowed water ingress to the backfill, thus assisting in the process of subsidence.
On the basis of his reports Mr Hughes prepared a scheme of remedial measures which he put in the form of a detailed specification. Quotations from builders were then obtained. One of the quotations was for that part of Mr Hughes's scheme which related to bedroom 4; this quotation was in the sum of £5,250, including professional fees but excluding VAT.
The lowest quotation for carrying out all the work included in Mr Hughes's specification was from a builder called D. Jellyman. This quotation amounted to £9,560 plus VAT.
In the result, however, Mr Hughes's scheme of remedial measures was never carried out. The plaintiffs decided that they would have some work done which would both remedy the damage that had been discovered and also effect some further improvements and additions to the house.
The plaintiffs' scheme of work was carried out for them by the employees of a company called Marlothian Ltd., a company controlled by Mr Alfred Jones.
Mr Jones told the judge that he made a payment by cheque for a sum between £20,000 and £30,000 to Marlothian Ltd. in respect of the work carried out by the employees of that company.
The payment was not made against an invoice, however, and although Mr Jones stated that he would give discovery of the relevant documents he failed to do so. I shall have to return to this aspect of the matter when I come to the question of damages.
The work carried out by Marlothian Ltd. at the house was completed during the course of 1978. The plaintiffs continued to live in the house until June or July 1980,when they sold it.
On 1 May 1981 a writ was issued in the present proceedings.
Meanwhile on 2 May 1978 the plaintiffs received the sum of £7,984.80 from their insurers in full and final settlement of their claim in respect of the damage to the house.
I must turn now to the question of liability.
THE CLAIM AGAINST THE COUNCIL
It will be convenient to consider the two questions relating to liability together.
The judge made his...
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