Council liable under the party wall act for the collapse of house

Crowley claimed a contribution under section 1(1) of the Civil Liability (Contribution) Act 1978 from the defendant council in connection with the settlement of the main action in which the council was the first defendant and Crowley the second. The main action had been a claim for damages the Sampla family, whose end terraced house had collapsed whilst paving work was being undertaken adjacent to its exposed side wall. The family had originally claimed over £300,000, but the action had been compromised by Crowley agreeing to pay £384,000. The council refused to pay anything towards this. The main action was stayed against both parties by a consent order, but the contribution claims continued. Crowley argued that the council was liable for most of the damages, whilst, naturally, the council denied this.

Crowley accepted that it had negligently caused the withdrawal of support from the house, but only in relatively insignificant respects. Both parties denied allegations of nuisance and interference with the easement of support. The partial collapse of the wall and the resulting damage had been caused by the ground adjacent to the exposed flank wall of the house being excavated to depths below its foundations so as to enable Crowley to lay a sub-base for, and then the paving of, the public open space following the removal of a planter that was providing structural support for those foundations. Crowley claimed that the foundations were unusually shallow and that the council should have undertake a pre-contract site investigation which would have revealed how shallow they were. Had this been done, the wall would not have collapsed.

The council had instructed Crowley to undertake measures to support the wall, but both parties accepted that these had been dangerously inappropriate. Crowley argued that the measures used had been the ones they had been instructed to use by the council, and there was some dispute between the parties about what Crowley had been told to do. Crowley’s case was that it had not been liable for the consequences of the scheme to support the wall, and it had been the council’s Mr. Simpson who had been negligent in devising the scheme. It had merely followed instructions, and had had no choice given the terms of its contract.

The council’s contract with Crowley did not contain implied terms in respect of fitness for purpose because it was not relying on Crowley’s skill and judgment in relation to any element of design, detailing or working method. The council had provided a warranty, which had contractual effect, that the specified planter removal and paving excavation work could be safely undertaken up to the external face of the flank wall of the house. Crowley’s contract had been for three simple work items: the demolition of the planter brick retaining wall and the removal of its contents, the excavation of the existing ground to a depth of 215mm across the site and the laying of block paving over a scalpings sub-base course and a sand topping level. Crowley had to undertake any additional excavation which was required to provide a firm and suitable sub-base outside the contractual lump sum. Any additional excavation would also have been outside the scope of the E & O E provisions of the contract because none of this work was expressly specified or detailed in it. Crowley had been entitled to carry out any necessary excavations in any way it chose provided that it was done using reasonable standards of workmanship. It had been under no obligation to provide a method statement.

The judge concluded that the excavation work had been carried out without the required level of workmanship, using the appropriate method. There had been no over-excavation and Crowley had undertaken the work in accordance with its contract. However, it had inevitably exposed the house’s foundations.

The council had done nothing to investigate the collapse and had not communicated with Crowley about it. The actions of their Mr. Simpson in asking Crowley to say nothing about it and his insistence that underpinning was not needed, although Mr. Crowley had felt it was, led the court to conclude that Mr. Simpson had felt that he was responsible for the collapse. The judge also felt that the council’s lack of action was an admission that it was partially responsible. It had not carried out an internal investigation into the causes of the collapse or had produced a report on the incident. The council should have dug a trial pit and surveyed the area. If they had, they would have found that the foundations had been shallow.

The council had been an adjoining owner within the meaning of the Party Wall Act 1996, and had a continuing duty to maintain the home owner’s right to an easement of support. There was an absolute duty to comply with the Act. Pleading that it had no previous experience of knowledge of this was not a defence. Had the council investigated the site, it would have found that special measures were needed. It had not followed the procedures required by the Party Wall Act, and had not considered that special measures might be required to protect the flank wall. Its contract with Crowley had been inadequate. It had provided Crowley with no specification or drawings, and had not specified what Crowley was to do. Crowley’s excavation work had not been inspected, and Mr. Simpson had not sought advice about what should be done when the foundations were exposed. The council had been in breach of the statutory duty owed to the claimants.

As an independent contractor, Crowley had been liable to the claimants for withdrawing support from the house and interfering with the easement of support. Both the Party Wall Act and the Civil Liability (Contribution) Act 1978 covered liability to pay compensation under the Party Wall Act. The court apportioned the council’s contribution at 80%, as it was found to be responsible for six operative causes of the damage.

Author: Ann Glacki

Date: January 2010

Ann Glacki

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