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Measuring the measured duty in a nuisance claim

In order to succeed with a claim in nuisance, historically, a claimant needed to prove the liability of the party causing the nuisance. However, over time, the courts have extended this to impose liability on property owners who have not actually caused the nuisance but have had knowledge or notice of it and failed to take reasonable steps to abate it. This expectation on a property owner to act when they know of the nuisance is referred to as a measured duty of care.

The concept originated from Lord Wilberforce’s judgment in the Australian case of Goldman v Hargrave [1967]. His opinion was that: “an occupier of land is under a general duty of care in relation to hazards, whether natural or man-made, occurring on his land to remove or reduce such hazards to his neighbour. The existence of the duty is based on the knowledge of the hazard, the ability to foresee the consequences of not checking or removing it and the ability to abate it by taking reasonable measures.”

He went on to provide some guidance in measuring the scope of such duty, when he commented that: “the law must take account of the fact that the occupier has had the hazard thrust upon him through no seeking or fault of his own. He may be of modest means in relation to the magnitude of the hazard or as compared with those of his threatened neighbour. The standard ought to be what is reasonable to expect of him in his individual circumstances.”

Duty of care

Therefore, measured duty should reflect the financial position of the parties and the cost to them of remedying the problem. It suggests that the measured duty of care owed by a property owner will vary, even in cases of a similar nature. The most obvious distinction would be between local authorities and private individuals, as local authorities will usually have sufficient means to remedy the problem, while an individual may not.

More recently, the courts have considered whether the concept forms part of English law. The most detailed analysis was undertaken by Lord Megaw in Leakey & Others v National Trust [1980]. In this case, the defendants owned a steep, conical hill, which was particularly susceptible to cracking and slipping as a result of weathering. At the base of its western side lay two adjacent properties belonging to the claimants. The lower part of the hillside that loomed over the two properties was particularly steep. It was accepted by all parties that the legal rights and liabilities to be ascertained by the court would be on the assumption that the contours of the defendants’ property were as nature made them.

Over the years, soil, rocks, tree roots and similar detritus from the bank slid onto the claimants’ land. Previous complaints had been made to the defendants in the past, so they were aware of the risk. In 1976, the claimants noticed a large crack in the bank above their properties and notified the defendants of the risk of a major collapse. The defendants responded that this was natural movement and they were not obliged to do anything about it.

The claimants offered to pay half the cost of securing the bank but the defendants refused; a few weeks later, ground from the bank collapsed onto their properties. The defendants held on to the view that they were not at fault and refused to remove the fallen debris or to undertake works to secure the bank.

The claimants brought a nuisance claim that sought an injunction that the National Trust should prevent soil, earth and tree stumps from moving onto the claimants’ properties, an order to remove the debris that had already fallen, and damages for nuisance. They were successful and the defendants appealed to the Court of Appeal.

Lord Megaw dismissed the appeal and, in his judgment, provided an in-depth analysis of the concept of measured duty of care, usefully summarising the position as follows:”The defendant’s duty is to do that which it is reasonable for him to do. The criteria of reasonableness include […] the factor of what the particular man – not the average man – can be expected to do, having regard, amongst other things, where a serious expenditure of money is required to eliminate or reduce the danger, to his means. Just as, where physical effort is required to avert an immediate danger, the defendant’s age and physical condition may be relevant in deciding what is reasonable, so also logic and good sense require that, where the expenditure of money is required, the defendant’s capacity to find the money is relevantbut this can only be in the way of a broad, and not a detailed, assessment; and, in arriving at a judgment on reasonableness, a similar broad assessment may be relevant in some cases as to the neighbour’s capacity to protect himself from damage, whether by way of some form of barrier on his own land or by way of providing funds for expenditure on agreed works on the land of the defendant.”

The judgment repeated the position in Goldman that the parties’ financial positions would be an important consideration when measuring the duty owed. It also went further, to state that age and capacity were relevant when physical effort was required to abate the nuisance.

Breach of duty of care

It is evident from both Leakey and Goldman that, when considering the merits of bringing a claim for a breach of a measured duty of care, it is necessary to consider what steps can reasonably be expected to be taken by the landowner, in order to prevent damage to other land likely to be affected by it. Moreover, the duty to act, if it arises, does so as soon as the landowner becomes – or should have become – aware that the hazard has come into existence. This was applied in the more recent case of Lambert & Others v Barratt Homes (Manchester Division) Ltd & Rochdale Metropolitan Borough Council [2009].

In Lambert, the claimants were householders in Rochdale. Their properties lay next to former school playing fields owned by the second defendants, Rochdale Metropolitan Borough Council. The claimants’ gardens backed onto the edge of the former playing fields and the drainage provisions there historically had been sound.

The council sold part of the playing fields to Barratt Homes, which built residential housing. In doing so, they also negligently filled in a former drainage ditch that discharged surface water from the playing fields. As a result, surface water from the part of the playing fields the council had retained drained naturally towards the boundary of the Barratt development, flooding the claimant’s properties from time to time.

Nuisance claim

The claimants brought a successful claim of negligence against Barratt Homes. They also made one of nuisance against the council. This claim maintained that although the council was not responsible for blocking the ditch, they came under a measured duty of care to take reasonable and appropriate steps to prevent water originating on their land from accumulating then spilling onto the claimants’ properties in a way that it would not have done had the ditch not been blocked. It was alleged that the council knew about the problem in December 1998 or January 1999 but had failed to take reasonable steps to prevent it. The claimants sought a mandatory injunction requiring the council to abate the nuisance, as well as damages.

The court held that the council did owe a measured duty of care. The deciding factors were:

  • That the council knew about the flooding problem as far back as December 1998, so they could foresee that, unless the nuisance was tackled, damage would continue to occur;
  • The claimants had no power to carry out the abatement works themselves;
  • The council owned the land where the water came from, sold it for development and had failed to follow through on concerns about drainage.

Remedial works

The judgment also said that the council not only owed a measured duty but this extended to paying for and implementing the remedial works, despite the fact that it was the negligence of Barratt Homes that was the cause of the flooding. The council appealed this decision.

In considering the appeal, Lord Longmore found that the council did indeed owe a duty but he also considered whether the scope of that duty extended to paying for and implementing the works. He commented that it was questionable as to whether the duty extended to carrying out the works on or  outside their land. He stated that the duty owed “did not extend […] to obliging Rochdale to meet the whole cost of the relief works.”

The council had been noted to have cooperated in obtaining consents and would also be expected to cooperate with permitting access to their land for the purpose of constructing a solution to the problem. This alone may have been sufficient to meet their measured duty but the Court of Appeal did not go so far as to make an order and directed that the extent of the duty owed would be a matter for the trial judge to consider. The council’s appeal was allowed but the claim was not dismissed to allow the parties to return to the trial judge, if needed.

The decision illustrates that the cause of a hazard – whether by another party or natural – is not crucial to bringing a claim. Once the property owner or occupier becomes aware of the hazard, the duty of care is established subject to consideration of the foreseeability of the damage and their ability to abate the nuisance. It further suggests that permitting access to land for the purpose of resolving a problem may be sufficient to meet the duty owed.

Following consideration of the case law, the question arises as to what is the extent of the measured duty. The answer is dependent on the circumstances of each case: the extent of duty will be measured after an assessment of the defendant’s financial position, age, capacity, knowledge of the problem, foreseeability of damage and their ability to abate the nuisance.

This subjective assessment is a difficult one to make and will vary from case to case. This uncertainty about the extent of the duty could cause problems for property owners, as they may not know what is expected of them, whether permitting access or paying for remedial works. Anyone concerned about a problem like this should obtain expert advice early on, in order to avoid complex litigation and significant legal costs.

For more information on any of the issues raised in this article, please contact our Civil Litigation department or call us on 0117 904 6000.

Posted on Nov 14th, 2012 by Lyons Davidson

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