A person may owe a “measured duty of care” to take reasonable steps to resolve or reduce hazards on that person’s land, which that person either foresaw, or which that person ought reasonably to have foreseen.
Such a liability is to be assessed by reference not only to what the person actually foresaw, but to what the person ought reasonably to have foreseen.
In Bridgland & Anor v Earlsmead Estates Ltd  an old works had been demolished next to the end gable of a terraced house. The house suffered from damp which the owner blamed on the demolition.
The owner pleaded that it was caused by “surface water” i.e. rain water penetrating the upper parts of the now exposed flank wall, and then percolating down inside the flank wall.
But the Technology and Construction Court found that to a significant and/or material extent, the damp to the lower part of the flank wall was caused by penetration of lateral ground moisture coming from the soil or material underneath the ground floor slab of the old works. The hygroscopic salts which had been found inside the house could only have been caused by that.
Given the advice the defendant’s surveyor had given it the defendant either did foresee, or ought reasonably to have foreseen:
1. that the state or condition of it’s property was causing damage to the adjoining house; and
2. that there was at least one reasonable remedial scheme, which their surveyor had identified, (internal tanking) which it could have carried out at it’s own expense to remedy that damage, and which would have been reasonable for the defendant to have implemented in all the circumstances.
In breach of duty the defendant did not take steps to implement and/or pay for that remedial scheme.
However, damage by long-standing lateral ground moisture was not pleaded by the claimants at the earlier proceedings, and so the issue of what was, or should have been, foreseen in those circumstances was not considered at trial.
Instead, the claimants’ case had focused on what was foreseeable in the context of the demolition of the former Trafalgar Works.
So it was difficult, if not impossible, to know what issues on foreseeability might have arisen had the claimants pleaded the correct cause of the damage.
The defendant won the case because the claimants’ pleadings had failed to identify the correct cause so the defendant had successfully defended against those pleadings even though the damage to the claimants’ house had always been caused by long-standing lateral ground moisture coming from the soil or material underneath the defendant’s property.
This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.