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Fighting fire with ire in a claim for subsidence damages

At Bar School you are taught that in order to bring a successful claim for damages in the law courts you need the following ingredients:

a duty owed by one person to another. This duty is usually defined by the terms of a contract between the parties. Sometimes the duty is imposed by statute or is to be found in the common law. The most common of common law duties is imposed by the law of tort;

breach of duty by one party (the defendant); and loss and damage caused to the other party (the claimant) by the breach.

So if putative claimants and their lawyers can whip round the forensic 'cash-and-carry' and pop 'duty', 'breach' and 'damage' in to their trolleys, the claimants can then concoct their claims: if not, hard cheese, as it were.

Once this recipe for success is mastered, lawyers wrestle with ever more exotic varieties of the basic ingredients and learn to serve them up in different ways, depending on whether the claim is in contract or tort. But however high-powered the diners, however complex the menu and however spicy the claim, the courts will find it indigestible without duty, breach and damage. Incidentally, most quantity surveyors cook up their claims in reverse and put all their energy into presenting lavish losses, while paying only lip service to breach and duty. This is fine when the claim is savoured only by other quantity surveyors but explains why many QS-led claims are spat out by the courts.

In among the staples of duty, breach and damage is an essential that is often overlooked. For claimants to succeed in their claims they need to show that the losses they have suffered were caused by the breaches relied upon. Causation can be an issue with the 'global' delay and loss and expense claims, where the claimant contends that all the breaches alleged caused all of the damages claimed and that the causal link between breach and loss cannot be defined. This argument ends up with two alternative conclusions, both equally unpalatable. Either that any one of the breaches, however minor, caused all of the damage or that if the claimant fails to prove any one of the breaches, however minor, they lose all the damages. Generally, however, it is assumed causation does not cause any trouble.

The recent case of Roberts v Bettany (2001) challenges that assumption. Two neighbours lived near an embankment that formed part of a colliery spoil heap. The defendant hired a gardener to clear the embankment. Some months after the job was complete, it was discovered that the gardener's bonfires had started an underground fire. The defendant ignored an abatement notice served by the council requiring the fire to be extinguished, so the council was obliged to intervene. It excavated the embankment, removed the burning material and filled in the area. Subsequently the claimant's house suffered subsidence damage as a result of ground movement caused by the excavation works.

Both the neighbour and the council owed a common law duty of care - and let's say, for argument's sake, that both the original bonfires and the subsequent excavation works were carried out negligently, in breach of those duties. But who caused the damage - the neighbour's pyromaniac gardener or the council's incompetent groundworkers?

The defendant sued the neighbour, alleging that the gardener was the cause of the trouble.

The neighbour argued that the house would never had subsided had it not been for the excavation works and that the damage was actually caused by the intervening act of the council.The Court of Appeal said that, although the council's intervention was incompetent, it had been made necessary by the defendant. An intervening act, or 'novus actus' as we lawyers say, only breaks the chain of causation if it overshadows the original negligence so as to turn it into merely a matter of surrounding circumstances. The court held that the subsidence damage had, in law if not in fact, been caused by the fire. The competing causes of damage in this case demonstrate the unpredictable nature of familiar ingredients once they are in the melting pot.

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