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Look out… – Ian Chappell’s Article in Property Briefing

This article was first published in Haysmacintyre's Autumn 2015 Property Briefing

Written by Ian Chappell
18/12/2015

When objects fall off buildings causing damage or injury, the liability faced by the property owner (and its insurer) can potentially be significant. There are, of course, many reasons why masonry or cladding, bits of steel or glazing might fall from a building and usually expert investigation will be able to show why it happened. The courts then decide (with the assistance of the parties’ lawyers) who is liable for the loss and damage by establishing whether a contractual and/or other duty of care was owed, who owed it and whether there was a failure in that duty.

Consider for example the tiles of a roof on a new-build house which fall off and cause extensive damage to a neighbour’s property. Who should be liable to pay damages to the neighbour in those circumstances? The owner of the house from which the roof tiles fell? The house builder? The house builder’s roofing sub-contractor? The manufacturer of the tile?

Was it a maintenance issue (unlikely if a new build)? Did the builder or roofing contractor negligently install the roof? Was there a latent defect in the manufacturing process of the tiles? Did the property owner carry out his own work which either contributed to, or was the sole cause of, the failure of the roof tiles?

It is impossible in the space afforded by this article to cover all the different bases upon which claims might be made in the circumstances described above, not least because, as with so many things involving the law, the answer very much depends on the individual facts of the case.

Some examples of possible claims are as follows.

The adjoining owner who has suffered the damage may make a claim in tort against the owner of the house from where the roof tiles fell. Such claims will be founded in tort of nuisance and/or trespass.

Claims for damages for nuisance have to be reasonably foreseeable. If they are not, the court will not allow them. A claim might be made under trespass, as the tile would have unlawfully entered the neighbouring land. Damages for trespass are compensatory. A Claimant is usually only entitled to recover money in respect of the loss which has been suffered.

The Claimant might also consider a claim against the home owner in negligence if it can be shown that the home owner did something, or allowed something, to happen on his land which was negligent and which caused the roof tiles to fail. Claims in negligence might also be made against the house-builder (if it built the roof itself) or the house-builder’s subcontractor (if the sub-contractor built the roof).

What is the position, however, if the cause is not obvious or ascertainable?

In some instances, the mere occurrence of an accident can indicate negligence without the need for any concrete evidence of negligence itself. This principle is known as resipsa loquitur, meaning “the thing speaks for itself”. This doctrine dates back to 1863 and the case of Byrne v Boadle in which Byrne was unfortunately hit by a flour barrel which fell from a building owned by Boadle and sustained significant injuries. In the legal proceedings that followed, Byrne did not present any specific evidence of negligence of the property owner. The court decided in Byrne’s favour holding that a presumption of negligence can arise from an accident and that a Claimant need not present direct evidence of negligence when the mere manner and facts of the accident show that it could not have happened without negligence on the Defendant’s part. The court ruled that there was, in this instance, a rebuttable presumption that Boadle was negligent and he had the burden of proving that he was not.

It follows that the doctrine of res ipsa loquitur cannot be relied upon when there is direct evidence of the cause of the injury and facts and circumstances surrounding it.

Claims under the Occupiers Liability Act 1957 and Defective Premises Act 1972 may provide certain claimants with possible avenues of claim for property damage and loss but not in my example above. The Occupiers Liability Act only applies to damage or injuries sustained by those invited (or in certain cases merely present) on the property from where the roof tile fell. The duty of care afforded under the Defective Premises Act is not to adjoining owners but to the person who commissioned the building and to every person who acquires an interest (whether legal or equitable) in the dwelling. The Claimant must then show that the inadequate work or inadequate materials (or both) have led to a defect (or defects) that means the dwelling is not fit for habitation.

Claims in this area are therefore often very fact specific with more than one basis of claim. Although it may be difficult to imagine a situation where a property owner in my example would not be held liable, it is very difficult to say “why” they might be liable without ascertaining all the facts of the case. Legal advice is generally essential to establish what rights exist and who owes them to whom.

This article was first published in Haysmacintyre’s Autumn 2015 Property Briefing

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Ian Chappell

I am a partner and specialise in contentious property and construction law matters. I have a particular expertise in acting for land owners, landlords, developers and construction professionals, who make up the majority of my client base. I provide specialist advice on a full range of contentious property matters or disputes that arise in connection with the acquisition, ownership and management of both residential and commercial properties including breach of contract, lease disputes and commercial lease renewals, rent reviews, breaches of covenant, rights of way and light, and trespass and possession claims. I also am regularly involved in the removal or alteration of restrictive covenants that would otherwise prevent development and provide advice on profit share agreements and overage contracts and disputes. On construction matters I provide advice on a number of different issues including breach of contract claims, material damage claims, professional negligence, arbitration, adjudication and mediation, interim and final account assessments, design disputes and delay claims. Outside of work, I enjoy squash and football and I am a keen fisherman and skier, the latter of which I do mostly in Norway with my wife's family.

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