Murphy v Brentwood District Council

JurisdictionEngland & Wales
Judgment Date21 December 1989
Judgment citation (vLex)[1989] EWCA Civ J1221-6
Docket Number89/1254
CourtCourt of Appeal (Civil Division)
Date21 December 1989
Brentwood District Council

[1989] EWCA Civ J1221-6


Lord Justice Fox

Lord Justice Ralph Gibson

Lord Justice Nicholls


1983 M. No. 3305






Royal Courts of Justice,

MR PIERS ASHWORTH, Q.C. and MR A. BRUNNER (instructed by Messrs. Barlow Lyde & Gilbert) appeared on behalf of the Appellants.

MR JONATHAN PLAYFORD, Q.C. and MR C. NIXON (instructed by Messrs. Greenwoods) appeared on behalf of the Respondent.


This is an appeal by the defendant Council from the judgment of His Honour Judge Esyr Lewis, Q.C., who is a judge nominated to deal with Official Referees' business, given at the trial of this action on 25th February 1988. He awarded £38,777.25, plus interest, to the plaintiff, Mr Thomas Murphy, on the ground that the Council, in the exercise of its function under Section 64 of the Public Health Act 1936 ("the 1936 Act"), had been in breach of its duty of care in and about the passing of the plans for a house later owned and occupied by Mr Murphy. He held that defects in the house, caused by a defective foundation, had become an imminent danger to safety and health whilst the plaintiff was in occupation of it, so as to give to the plaintiff a cause of action under the principles established in Anns v. London Borough of Merton (1978) A.C. 728. The Council now appeals on the grounds that it had not, in law, been guilty of any breach of duty of care; that the defects in the house did not amount to any danger to safety or health; and that, in any event, the plaintiff had not proved any damage recoverable in law.


The main questions raised on this appeal are:


(i) Whether a local authority, exercising its functions under Section 64 of the 1936 Act, is liable for breach of its duty of care if, without any negligence on the part of any servant of the Council, it approves a foundation design which has been negligently prepared by an engineer employed by a developer, but does so in reliance upon the professional, but negligent, approval of that design by other competent engineers instructed for that purpose as independent contractors;


(ii) Whether on the facts found the Judge was entitled to hold that there was imminent danger to safety and health of the plaintiff as occupier of the house; and, if yes, what damages were recoverable by the plaintiff as the costs of eliminating that danger; and (iii) Whether, on the particular facts of this case, the plaintiff, who has spent and will spend nothing on carrying out remedial work to the house (having sold it in its damaged state to a builder who knew of the cause of the damage) may nevertheless recover against the Council a sum representing the diminution in value of the house resulting from the damage suffered by it.


The history of the matter can be taken from the judgment of Judge Esyr Lewis, as stated by him. The case was one of complication and difficulty. The primary findings of fact are not questioned by the Council, but, as to some aspects of the case, it is argued that the conclusions at which the learned Judge arrived are not justified by those primary findings.


The defective foundation and responsibility for it.


The house is No. 38 Vineway in Brentwood in Essex. The plaintiff bought it in 1970 from the builders, ABC Homes, who had built it as a part of a large development of about 160 dwellings. It was built in 1969.


The house is the righthand house of a pair of semidetached houses containing integral garages. The Highwood Estate, on which the house stands, was developed in stages. The site was sloping and had to be filled and levelled in part. A number of ditches and substantial trees were removed. The course of one ditch ran through the piece of ground on which the pair of houses was built.


Because of the nature of the site, and the fact that "fill" had been used in levelling, careful consideration was required to the design of the foundation. In order to prevent damage from differential settlement at different parts of the foundation, which was likely to occur if conventional foundations were used, this pair of houses was constructed upon a single concrete raft foundation cast below the surface level of the filled ground. The raft was about 42 feet in length (side to side as facing the houses) and 37 feet 9 inches wide (front to back); it was 15 inches thick and provided with steel reinforcement in the top part. The external walls rested on the raft, which extended a little way outside them. Fill material was placed over the raft to a height of at least four feet, and the concrete floor slab was put in position above the fill.


The raft foundation proved to be inadequate. Differential settlement of the ground beneath the raft caused it to distort. The plaintiff, in 1981, noticed a serious crack in the living room, and a leak or fracture of a water pipe which was causing the front lawn to be continually wet. The plaintiff dug a hole in front of the house and, having exposed part of the foundation raft, found that it was cracked. The crack was about three-quarters of an inch wide at the bottom and extended upwards, reducing in width.


From 1981 the settlement and distortion of the raft foundation continued, and further cracks were caused in the walls of the house. The external and internal walls were examined on 28th July 1983 by Mr Parkinson Hill, a Chartered Engineer advising the plaintiff's insurers, and were listed in Appendix F of his report. The learned Judge accepted that list as an accurate description. Most of the internal cracks were in the living room, and there were other cracks in a bedroom, in the ceiling over the stairwell, and in the first floor bathroom. External cracks were found by the living room window, on the flank wall of the house and at the rear.


The raft foundation settled as it did, and thereby suffered distortion and cracking because of the defective design of the raft. The design was prepared by a firm of Civil Engineers, Rudkins. They were named as defendants in the action of the writ, but the Statement of Claim was served only on the Council. Rudkins have played no part in the proceedings and, accordingly, they have not been heard on this matter.


The design was defective because, in preparing it, proper regard was not made to the soil conditions at the site. The raft was not provided with appropriate steel reinforcement of sufficient strength. That lack of designed strength was the result of errors in the calculations by which the designer had tried to determine the load which would be imposed upon the raft by the superstructure of the houses and, by reference to that load, the amount of steel reinforcement necessary at the top of the raft. The error in the calculations lay in determining the maximum bending moment, i.e., the relationship of the loads on the raft foundation to their position along its length and breadth. In consequence of the error, the strength of steel reinforcement required in the top of the raft was under-estimated by about 30 per cent.


If the raft had been reinforced with steel in the manner and to the extent that it should have been reinforced, the raft, in probability, would not have cracked or become distorted to the extent to which it had in fact become distorted. If the raft had been adequately stiffened then, even if it had tilted, the building would have moved along with it and would not have sustained the crack damage which occurred. The consequence of that crack damage to the plaintiff's house and to the plaintiff in his occupancy of it will be described later.


The nature and extent of the differential settlement of the raft foundation was, as the Judge found, demonstrated in Mr Parkinson Hill's isometric drawing 3A, which recorded the results of surveys of levels made by different engineers in November 1981, January 1982, July 1986, April 1987, and September 1987. In summary, the raft had dropped (in relation to the datum point at the rear righthand corner of the raft viewed from the front of the house) at the rear lefthandcorner and towards the front righthand corner. There was a substantial drop at the point where the plaintiff found the crack in the foundation in 1981. The raft had sagged along the front edge and in the middle of the rear edge. It had hogged (i.e., suffered a drop at a corner with the rest of that side not dropping so as to keep the edge straight) midway along both the left and the right side. The downward movements of the raft had all increased since the survey of November 1981.


The amount of movement was not stated in the judgment, save by reference to the drawing. The amount of movement was stated and discussed in the reports of the two expert witnesses, Mr Parkinson Hill for the plaintiff, and Mr Akroyd for the Council. Commenting on the various surveys of "out of level difference" which had been made, including that of Mr Parkinson Hill on 23rd July 1986, Mr Akroyd reported that "to all practical purposes the front left and rear right are at the same level; the front right is 120 mm (4 3/4 incles) lower, and the rear left 50 mm (2 inches) lower".


Negligence in the design of the foundation.


The Judge held that the designers of the raft foundation, knowing that the ground conditions were difficult, did not, in preparing and providing the design, exercise the standard of care to be expected of a competent engineer. He further held that the fact that the raft foundation failed to prevent damage to the house by settlement led...

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