Spicer and Another v Smee

 Spicer and Another v Smee

TORTS; Nuisance

KING’S BENCH DIVISION

ATKINSON J

20, 21, 22 FEBRUARY, 8 MARCH 1946

Nuisance – Adjoining premises – Fire caused by defective electric wiring – Live wire inadequately protected owing to negligence of contractor – Adjoining

premises destroyed – House let with defect – Owner liable for repairs – Knowledge of want of repair – Liability – Fires Prevention (Metropolis) Act, 1774 (c 78), s 86.

The plaintiff and the defendant were the respective owners of two adjoining leasehold bungalows. Under the terms of her lease, the defendant was under anobligation to keep her bungalow in good repair and condition. In 1934, the defendant installed electric lighting in her bungalow. In Dec 1942, she let thebungalow to T. Under the terms of the agreement with T, the defendant retained the right and power of repair. On 14 January 1943, the plaintiffs’s bungalowwas completely destroyed by a fire which originated in the defendant’s bungalow owing to a defect in the electric wiring. The plaintiff brought an actionagainst the defendant for damages for nuisance. On the evidence, the judge found that, owing to the negligence of the contractor who did the work, the wiringfor the electric lighting had been installed in such a way that part of the live wire was inadequately protected, and that the bungalow had been let to T with thisdefect. It was contended by the defendant (a) that she could not be held liable for the acts of the contractor; and (b) that under the Fires Prevention

(Metropolis) Act, 1774, s 86, no action was maintainable. It was further contended that liability for a private nuisance was less than that for a publicn nuisance—

Held – (i) The state of the electric wiring in the defendant’s bungalow constituted a nuisance on her property for which she was liable. Since the fire which destroyed the plaintiff’s bungalow was due to this nuisance, the defendant was liable to the plaintiff in damages.

(ii) the principle that a man is not liable for the acts of an independent contractor did not apply in the law of nuisance.

Bower v Peate applied.

Dictum of Scrutton LJ in Job Edwards Ltd v Birmingham Navigations ([1924] 1 KB 341, at p 355) applied.

(iii) although the defendant was not in occupation of the premises at the time, she was nevertheless liable; she had let the premises with a nuisance hereon created by her agents and was, therefore, liable for the continuation of the nuisance.

Dictum of Scrutton LJ in Job Edwards Ltd v Birmingham Navigations ([1924] 1 KB 341, at p 355) applied.

(iv) assuming that the nuisance had not been created by the defendant’s agents, and that the electric wiring had become exposed by some other means, thedefendant was nevertheless liable, because, on the facts of the case, the nuisance existed at the commencement of the tenancy and, since the defendant hadretained the right to repair, she should have known that the nuisance existed.

(v) liability for a private nuisance was no less than that for a public nuisance.

Dictum of Maule J in Overton v Freeman (11 CB 867, at pp 871, 872) applied.

(vi) since the fire was due to nuisance created by the landlord or those for whom he was responsible, the Fires Prevention (Metropolis) Act, 1774, s 86, did not apply.

Notes

This case should be compared with Collingwood v Home & Colonial Stores Ltd, another case of fire caused by defective wiring. There, however, there was no evidenceof negligence, while in the case now reported there was evidence of negligence by an electrical contractor, for whose acts the defendant is heldliable, on the principle that a person authorising work from which mischief may result, is responsible for the consequences.

As to Liability for Injury to Neighbouring Property, see Halsbury, Hailsham Edn, Vol 24, pp 42–50, paras 74–86; and for Cases, see Digest, Vol 36, pp 187–189, Nos 308–316, and Supplement.

􀂭 489􀀉

Cases referred to in judgment

Rapier v London Tramways Co [1893] 2 Ch 588, 36 Digest 175, 206, 63 LJCh 36, 69 LT 361.

Wing v London General Omnibus Co [1909] 2 KB 652, 36 Digest 89, 594, 78 LJKB 1063, 101 LT 411.

Baker v Herbert [1911] 2 KB 633, 36 Digest 197, 374, 80 LJKB 1329, 105 LT 349.

Job Edwards Ltd v Birmingham Navigations [1924] 1 KB 341, 36 Digest 215, 575, 93 LJKB 261, 130 LT 522.

Wringe v Cohen [1939] 4 All ER 241, [1940] 1 KB 229, Digest Supp, 109 LJKB 227, 161 LT 366.

Noble v Harrison [1926] 2 KB 332, 36 Digest 189, 316, 95 LJKB 813, 135 LT 325.

Collingwood v Home & Colonial Stores Ltd [1936] 3 All ER 200, Digest Supp, 155 LT 550, affg [1936] 1 All ER 74.

Rylands v Fletcher (1868), LR 3 HL 330, 36 Digest 187, 311, 37 LJEx 161, 19 LT 220, affg SC sub nom Fletcher v Rylands (1866), LR 1 Exch 265.

All England Law Reports 1936 - books on screen™

All ER 1946 Volume 1

Preamble

Bower v Peate (1876), 1 QBD 321, 36 Digest 99, 658, 45 LJQB 446, 35 LT 321.

Dalton v Angus (1881), 6 App Cas 740, 19 Digest 7, 4, sub nom, Public Works Comrs v Angus & Co Dalton v Angus & Co 50 LJQB 689, 44 LT 844.

Penny v Wimbledon Urban Council [1899] 2 QB 72, 26 Digest 410, 1308, 68 LJQB 704, 80 LT 615.

Chauntler v Robinson (1849), 4 Exch 163, 36 Digest 199, 389, 19 LJEx 170, 14 LTOS 107.

Overton v Freeman (1852), 11 CB 867, 26 Digest 410, 1309, 21 LJCP 52, 18 LTOS 224.

Cunard v Antifyre Ltd [1933] 1 KB 551, Digest Supp, 103 LJKB 321, 148 LT 287.

Action

Action for damages for negligence and for nuisance. The facts are fully set out in the judgment.

C G Armstrong Cowan for the plaintiffs.

Humfrey H Edmunds for the defendant.

Cur adv vult

8 March 1946. The following judgment was delivered.

ATKINSON J. This is an action brought by Mr and Mrs Spicer against the late Mrs Ethel Smee for damages for the destruction by fire of their house and furniture The plaintiff Mrs Spicer was the owner of a bungalow, No 12, The Island, Thames Ditton, which she bought in 1941, and her husband was the owner of the furniture in it. Mrs Smee, the original defendant, who has since died (and whose daughter has been joined as executrix) was the owner of the adjoining bungalow, No 13. Both bungalows were leasehold, and the leases of both plots of land, then vacant, are dated 17 September 1908, and were for 90 years. The defendant’s lease has been produced, and I will refer to two of the covenants:

‘2. And also will within a period of 3 months from the date of these presents at his own expense erect a bungalow in and upon the said land in workmanlike and substantial manner in accordance with plans which have been previously approved by the lessor’s surveyor and passed by the surveyor for the time being of the district council. 8. Will keep the bungalow and premises both internally and externally in good and tenantable repair and condition.’

Smee bought lot No 13, with the bungalow which had then been erected, in 1915. He died in 1931, and the bungalow then became the property of Mrs Smee. The bungalow faced the river, looking north. Each bungalow was built within 3ft of the boundary line dividing the leased plots, so that they were only 6ft apart. They were built entirely of wood, and were raised some 3ft from the ground to safeguard the buildings from floods. The outer skin consisted of weatherboards, and the inner skin of matchboarding, with the usual cavity between the two skins or walls. During the night of 14 January 1943, the plaintiffs’ house and furniture were totally destroyed by fire. The fire originated in No 13, Mrs Smee’s bungalow, and almost completely destroyed it and its contents.

The plaintiffs claimed damages from Mrs Smee, and now claim damages from the daughter, the executrix, for this loss.

The Smees had not lived in the bungalow for some years. They had let it furnished. The defendant and her mother attended to the lettings personally.

􀂭 490􀀉 They have had no agent whose duty it was to inspect and attend to the necessary repairs. Some description of the defendant’s bungalow is necessary.

The north-west corner is occupied by the living room. The fireplace was at the far end, and was built in brick. Behind that wall (ie, behind the fireplace) was the kitchen. To the east of the living room were three bedrooms. The largest one faced the river, and behind it were two smaller ones. Between the main bedroom and the back bedroom nearest to the living room there was a passage, which opened into the living room. The electric meters were in the lavatory at the far end of the bungalow.

In March 1934, Mrs Smee installed electric lighting. A man employed by one Lock did the work. His estimate has been produced; it is dated 26 March1934, and is in these terms:

‘Wiring for eight lighting points in English best quality lead-covered cable, wires to be fixed on the surface, and in roof where necessary, care being taken to conceal wires as much as possible. To supply and fix best quality semi-recessed bakelite switches, lampholders and flex, also the necessary main switch and fuses combined. The price includes for supplying and fixing one inclosed unit in bathroom, and to wire for lighting plug point in lounge controlled by switch at door. The work guaranteed for 3 years against defective material and workmanship. For the sum of £5 6s.’

The point referred to was in the skirting board on the west side of the living room. The only other point in the living room was in the ceiling, in front of the fireplace. The wiring for the plug came along the passage to the east of the kitchen, and was then carried through the floor, and ultimately along the side of a joist up to a point below the plug, when it turned upwards, passing into the cavity between the two walls to back of the plug, and then through the inner wall and the skirting board. It was thus in contact with wood for some considerable distance from the plug.

The plaintiffs’ case is that the fire started in the woodwork behind and below the plug, in consequence of a leakage of current from a bare wire into wet wood. The claim is put in two ways. It is said that the installation near to the plug was always, or had become, a nuisance, and also that the original defendant, Mrs Smee, had negligently failed in the duty to keep the bungalow and the electric installation in a safe and proper condition, whereby the fire was caused.

It is established beyond all question by the evidence that if an exposed electric wire in circuit comes into contact with wet or damp wood, current will escape into the wood, char it and may (and, indeed, almost necessarily will) ultimately set it on fire. The lead covering of the cable is to protect the vulcanised rubber and the insulating tape around the wires from deterioration and from injury. Uncovered by the lead, especially if outside a building, the rubber and the tape are exposed to the weather and, in a place like this island, are subject to attack by rats. The wood near the plug was exposed to damp. It could get wet there. Anyone who has had any experience of a bungalow on the river knows how damp even inside can become during the winter. It is plain that, even with ordinary atmospheric conditions, the outside woodwork in a bungalow could easily, and indeed would necessarily, get damp and wet.

A great deal was made, during the trial, of the bad state of repair of the roof. The relevance of this want of repair was that it added to the danger of the woodwork near to the plug getting wet. It was also relied on as showing a negligent indifference to the state of repair of the bungalow. I am satisfied that the All England Law Reports 1936 - books on screen™

All ER 1946 Volume 1

Preamble

roof had been in a very bad state of repair for a long time. There is no doubt that, if Mrs Smee was under any duty to repair the roof, she was guilty of a breach of that duty.

On 5 December 1942, Mrs Smee let her bungalow furnished to one Terry, from 7 December for one year, at a rental of £143, which amounted to £2 15s a week, and which was to be paid weekly in advance. The agreement contained the following terms:

‘The tenant agrees with the landlord as follows: 1. To pay the rent at the times and in the manner aforesaid. 2. To keep the glass in the windows and all internal fixtures and fittings belonging to the said demised premises and all furniture in good and sufficient order and repair (fair wear and tear and damage by enemy action excepted) and to replace or make good any article furniture or fittings lost or damaged during the tenancy … During the continuance of the tenancy to permit the landlord 􀂭 491􀀉 or her agents with or without workmen to view the interior of the premises and to carry out any necessary works of repair.’

Mrs Smee, therefore, retained the right and power of repair.

Terry gave evidence that, right from the beginning, a standard lamp which was part of the furniture of the house, and which was used in connection with this plug kept going out. In wet weather the light faded out quite often, so much so that they ceased to use the lamp, disconnected it from the plug and put it in the corner of the room. They also used this plug for a radio set, and they gave up attempting to plug the radio set into the plug, and fixed a double fitting in the hanging light in the front of the fireplace, and used that for supplying current for the radio set. Terry also said that when he came to the bungalow, on the very first day, not only was there water all about the kitchen, but there was a big damp place in the sitting room between the fireplace and the plug. His evidence is:

that a day or two before 20 December when paying his rent to Miss Smee he complained about the leaking roof quite generally, and about this plug. I am satisfied that Terry did complain about this plug; I think anything else is highly improbable.

In his evidence, Terry said:

‘When this fading out of the light in damp weather occurred, or perhaps when the lamp went wrong, I did go under the bungalow to see if I could see anything … I had a look round to see if I could find where the wires went to. I got underneath the bungalow and traced them along the side of the bungalow footings. Nearing the plug, where it goes through into the back of the plug, the wire was bare for some distance … ’

Mr Shipley, the defendant’s expert witness, said that you would not see this wire until it was five inches away from the plug, and that if you saw two or three inches of bare wire it would mean that there were perhaps six or seven inches of bare wire between the point where you could see the end of the lead and the actual junction with the plug. But that is immaterial. There were, I am satisfied, several inches of bare wire behind the plug and in contact with the woods, which could, and which did, get wet.

On the night in question, when the fire took place, Terry was asleep in the back room. Mrs Terry, two daughters and a baby were in the main bedroom.

The baby apparently was restless, and at about 1.0 am Mrs Terry got up to go to the kitchen to get something for the child. Through the door of the living room she saw the light of fire. She opened the door, shouted for her husband and called out “Fire.” She says that what she saw was this: Right opposite her was the plug, and there was fire coming from the plug and from just behind it, and going up the wall. Her husband was there in a matter of seconds, and he swears the same thing. Mrs Terry added something of which she did not understand the significance, that round the plug there was for a moment or two a blue ring of light.

I have thus direct evidence that the fire in fact started at the plug. I have direct evidence from Terry of a state of things which might easily cause a fire, and, indeed, would be expected to cause a fire, just where this fire started. I also have the evidence, the relevance and importance of which Terry would not understand, about light fading away in wet weather, which is exactly what would happen if the current were leaking into damp wood. You would get irregularity of supply of current to the plug, and you would get just the sort of thing which he spoke of. I am quite satisfied, and I find as a fact, that the fire did start at the plug or just below the plug, that it was caused by the bare wire coming into contact with wet wood, and that it came into contact with the wet wood because there was no lead covering and because the insulating rubber and tape had worn away, leaving the wires or a wire bare.

The next question of fact to which I have to address my mind is this: Was the wire originally fixed without lead covering on the last few inches of it?

The man who fixed it was not called. His employer was called; he would naturally say everything was perfect; but I do not believe for a moment that an

employer living some distance away would go and examine every bit of work that his man had done. I do not believe that he looked at the plug from

underneath the bungalow. If this lead had been put on right up to the plug, as it ought to have been, it would have been there at the time of this fire. I myself

cannot see—and nobody has been able to help me with any suggestion about it—how lead 􀂭 492􀀉 of good quality (such as, on the evidence, this was) could

have come off this wire of itself. No one suggested any agency which could get it off. The inference I draw is that when the point was reached below the plug

where the wire had to be turned up through some boards, it was perhaps easier to handle it without the lead, and the lead was brought up to a point below the

plug, and, from that point up to the plug, the lead had been taken off by the man who fixed it. That is the inference I draw, that this was negligently fitted

originally, without lead covering for the few inches. Mr Shipley said it would be very bad workmanship but that he was afraid it was at times done in that

way. If that is right, I have this fact, that, owing to the negligence of the contractor, the wiring was installed in such a way, that there was inadequate

protection of the insulating covering of the live wire, which, in course of time, would wear away and would come off, and would leave the wires exposed.

There is one other question of fact with which it is necessary to deal. Was the bungalow let to Terry in this condition? I cannot think that there can be

any real doubt about that. I am satisfied that when the bungalow was let to Terry on 5 December 1942, the tenancy to start from 7 December this dangerous

state of things was already in existence. The lead had been off for years, and I am satisfied that this wire must have been in a dangerous state of bareness at

the time when the bungalow was let to Terry. That is consistent with the fact that, right from the beginning, there was irregularity of current from the plug. I

find as a fact it was let to him in that state.

On those facts, what is the law? I have no doubt that there was a nuisance on this property, a nuisance which caused the damage, and it is one for which,

as a matter of law, the defendant is answerable. Liability for a nuisance may exist quite independently of negligance. In negligence a plaintiff must prove a

duty to take care, but not so in nuisance. In Rapier v London Tramways Co, Lindley LJ said ([1893] 2 Ch 588, at p 600):

‘… if I am sued for a nuisance, and the nuisance is proved, it is no defence on my part to say, and to prove, that I have taken all reasonable care to

prevent it.’

Nuisance and negligence are different in their nature, and a private nuisance arises out of a state of things on one man’s property whereby his neighbour’s

property is exposed to danger. I think that that is a fair summary of what was said by Fletcher Moulton LJ in Wing v London General Omnibus Co and Barker

All England Law Reports 1936 - books on screen™

All ER 1946 Volume 1

Preamble

v Herbert. I am satisfied that the state of the defendant’s bungalow around that plug, with a bare wire in contact with wet wood, did constitute a nuisance on

the defendant’s property and that it exposed the neighbouring property to danger and, in the end, caused the escape of a dangerous thing, to wit, fire.

Mrs Smee was not the occupier. In general, the responsibility for nuisance is based on possession, but it is clear law that, if an owner lets his premises

with a nuisance thereon created by himself or by his servants or agents, he assumes liability for the continuance of that nuisance. In Job Edwards Ltd v

Birmingham Navigations, Scrutton LJ was dealing with the question of nuisance, and damage done by fire. His judgment was a minority judgment, but there

was no difference between the members of the court as to what was the law which they were applying. He said ([1924] 1 KB 341, at p 355):

‘In my view it is clear that a landowner or occupier is liable to an action by a private person damaged by a nuisance existing on or coming from his

land: (i) if he or his servants or agents created the nuisance; (ii) or if an independent contractor acting for his benefit created the nuisance, though

contrary to the terms of his employment … ’

Accepting that, as I am bound to do, as a correct statement of the law, Miss Smee was clearly liable for the negligent way in which this installation had been

carried out.

But, supposing that I am wrong in the inference that I draw that this lead had always been off, and that in some mysterious way it had come off in the

process of time so that it could not be said that she had installed the nuisance, again it is clear that a landlord is liable for a nuisance although not of his

creation, if it existed at the commencement of the tenancy and was known, or ought to have been known, by the landlord to exist. The words” ought to have

known” can only mean “if it was his duty to have known,” and therefore, if this nuisance was there at the time of the letting of this bungalow to Terry, the

question arises:

􀂭 493􀀉

Was it one of which she knew, or if she did not know, was it one of which it was her duty to have known?

In Barker v Herbert some trespassers had removed the iron railings of the defendant’s house, leaving unprotected one of those sudden drops into the

basement yard in front of the house, and somebody had tumbled down and been injured. Fletcher Moulton LJ said ([1911] 2 KB 633, at p 642):

‘In my opinion the law in such a case as the present is that the possessor of land adjoining a highway may not cause his premises to be a nuisance to

the highway, and he will be responsible in this respect for the acts of his agents or servants. It may be that, as indicated in certain cases, his

responsibility may have a wider range than that, and he may sometimes be responsible for the acts of those whom he permits to be occupants of his

premises, but no question arises here as to any such extension of his responsibility, and I only mention the possibility of his being so responsible in order

to show that I have not forgotten it. In a case where the nuisance is created by the act of a trespasser, it is done without the permission of the owner and

against his will, and he cannot in any sense be said to have caused the nuisance; but the law recognises that there may be a continuance by him of the

nuisance. In that case the gravamen in the continuance of the nuisance, and not the original causing of it. An owner of premises may have a duty to

prevent the continuance of the nuisance, but it is obvious that, just as, where the allegation is that he has caused the nuisance, it must be proved that it

was there by act or that of some one for whose action he is responsible, so, where it is alleged that he is responsible for the continuance of the nuisance,

it must be proved that it was continued by his permission. He cannot be said to have permitted the continuance of that which was not caused by him,

and of which he had no knowledge; and when I say of which he had no knowledge, of course I include the knowledge of the servants and agents for

whom he is responsible. If they have knowledge of the nuisance, their knowledge must be attributed to him. I also realise that cases may arise in which

his or their want of knowledge may be due to neglect of duty.’

These last words are the important ones.

In Wringe v Cohen it was held that there is duty on a landlord who has retained the right of repair to prevent his premises from getting into such disrepair

as to constitute a danger to his neighbours. That case only dealt with nuisance arising from want of repair. A duty to prevent his house from becoming

dangerous from want of repair connotes a duty to inspect and examine, and if a landlord fails to do either, it is right that he should not be allowed to rely upon

want of knowledge. There is nothing latent in the premises becoming in such disrepair as to be in danger of collapse. That was the point in Wringe v Cohen.

The last words of the judgment of the Court of Appeal in that case are these ([1939] 4 All ER 241, at p 254):

‘… if premises become dangerous, not by the occupier’s act, nor neglect of duty, but as the result of the act of a third party, or of a latent defect, the

occupier is not liable without proof of knowledge or means of knowledge and failure to abate it.’

There is no hardship imposed on the landlord by that obligation. If the want of repair is due to something latent, it cannot be said that he ought to have

known about it.

That difference is well illustrated by comparing Wringe v Cohen with Noble v Harrison. In Noble v Harrison a tree which overhung the highway had

suddenly fallen, and a heavy branch had come down on a man who was passing. He claimed damages from the owner. It was held that there was no liability,

and the reason is instructive. Wright J said ([1926] 2 KB 332, at p 341):

‘Then it is contended that it became a nuisance when at some unknown time, some years ago, the latent defect began and gradually developed by

natural causes and without any human agency or any indication to human eyes. In that case I think the defendant is not liable, because of the principles

laid down in Barker v. Herbert [i.e., the passage that I have just read]. The nuisance in that case was caused by the act of a trespasser, but I think the

same principle applies to a nuisance (in this case the latent crack in the branch with the resulting risk that some day it would fall) caused by a secret and

unobservable operation of nature.’

That is as much as to say: “If it is latent and unobservable, well and good. You cannot attribute knowledge.” But it is obvious, I think, that, if that crack

had been observable, the decision would have been the other way.

Therefore it seems to me that the defendant must be responsible for this 􀂭 494􀀉 nuisance. If it had always been there, this potential danger was there by

the act of her contractors. If the lead in some unexplained way came off since installation, it was let to the tenant in that condition, it was a matter of

observable disrepair which could be seen on inspection, and the late defendant, the owner, cannot be heard to say: “I did not know about it.” It was her duty

to know about it.

On those facts, the Fires Prevention (Metropolis) Act, 1774, sect 86, which provides that no action shall be maintainable against anyone in whose

All England Law Reports 1936 - books on screen™

All ER 1946 Volume 1

Preamble

building a fire shall accidentally begin, has no application. It has no application where the fire is due to negligence, or to nuisance created by the landlord or

those for whom he is responsible. That was discussed in Collingwood v Home and Colonial Stores Ltd. There, a fire had originated in a neighbour’s basement

and had damaged or destroyed the plaintiff’s buildings, and an action was brought, based upon nuisance. Greaves-Lord J who tried the case, had been unable

to find what the cause of the fire was. He said ([1936] 1 All ER 74, at p 76):

‘It may have been by a fusing of the wiring, but what caused the wire to fuse? Was it a result of faulty wiring, or of some conditions that caused a

leakage of current in the basement? I am unable to say. It is said the wiring was defective and that a warning to that effect was given … ’

He then dealt with that, and, in the end, was quite unable to find that there had been in fact anything wrong with this installation. He said that the fire was

unexplained; it was, therefore, an accident within the meaning of the Act. That case was taken to the Court of Appeal, and it was sought to have the defendant

held liable on the principle of Fletcher v Rylands that something dangerous had been brought on to the premises, viz, electric current, and if it has caused the

fire it did not matter how it had caused it, because it had escaped and damaged the plaintiff’s house. But the court held that the principle of Fletcher v Rylands

did not apply, and, therefore, as there was no finding of fact that there was a nuisance, or that there was negligence on the part of the defendant, the defendant

was entitled to judgment on the basis of the fire being an accident.

It was urged that Mrs Smee could not be liable for the acts of the contractor. As to that, usually a man is not liable for the default of an independent

contractor, but in the law of nuisance an exception exists. I have already referred to what was said by Scrutton LJ in Job Edwards Ltd v Birmingham

Navigations. Winfield on Torts also deals with this contention and states that it does not apply in the case of nuisance. The principle which governs these

cases is that which was laid down in Bower v Peate by Cockburn CJ. Having explained that normally a man is not liable for the negligence of the contractor,

Cockburn CJ goes on to say (1 QBD 321, at pp 325, 326) that “this reasoning cannot prevail” where:

‘… he directs an act to be done from which injurious consequences will result unless means are taken to prevent them in the shape of additional

work, but omits to direct the latter to be done as part of the work to be executed, contenting himself with securing to himself a pecuniary indemnity in

the event of any claim arising from damage to the adjoining property. He is, therefore, not in the position of a man who has simply authorised and

contracted for the execution of a work from which, if executed with due care, no injury can arise, and who is, therefore, not to be held responsible if,

while the work is going on, injury arises from the negligence of the contractor or his servants. The answer to the defendant’s contention may, however,

as it appears to us, be placed on a broader ground, namely, that a man who orders a work to be executed, from which, in the natural course of things,

injurious consequences to his neighbour must be expected to arise, unless means are adopted by which such consequences may be prevented, is bound to

see to the doing of that which is necessary to prevent the mischief, and cannot relieve himself of his responsibility by employing some one

else—whether it be the contractor employed to do the work from which the danger arises or some independent person—to do what is necessary to

prevent the act he has ordered to be done from becoming wrongful.’

I think that is the broad principle, which was approved by Lord Blackburn (6 App Cas 740, at p 829) in Dalton v Angus and in Penny v Wimbledon Urban

Council that, where danger is likely to arise unless work is properly done, there is a duty to see that it is properly done.

􀂭 495􀀉

There was one other point which was urged. It is said that all this may be very true with regard to public nuisances, nuisances which affect the public

generally, but that it does not apply to a private nuisance. I do not think there is anything in that point. In Wringe v Cohen the Court of Appeal refused to

differentiate between the two, and in Chauntler v Robinson, Parke B said (4 Exch 163, at p 170):

‘… but in any understanding of this term, there is no obligation towards a neighbour cast by law on the owner of a house, merely as such, to keep it

repaired in a lasting and substantial manner: the only duty is to keep it in such a state that his neighbour may not be injured by its fall; the house may,

therefore, be in a ruinous state provided it be shored sufficiently, or the house may be demolished altogether.’

The relevant words are that it is his duty

‘… to keep it in such a state that his neighbour may not be injured … ’

In Overton v Freeman where this defence was being urged, Maule J said (11 CB 867, at pp 871, 872):

‘It is urged by [counsel for the plaintiff] that the defendants are liable in respect of this being a public nuisance; and it is insisted that there is some greater degree of liability in respect of this being a public wrong, than would ordinarily attach in the case of a mere private injury. I do not, however, perceive that there is any distinction between the two which is at all favourable to the plaintiff’s argument. I rather think the liability for a public wrong is less extensive than the civil liability.’

In Cunard v Antifyre Ltd, a Divisional Court consisting of Action and Talbot JJ considered this point at some length, and refused to admit any distinction between the measure of obligation to the public and to a neighbour. The principle is the same in both cases. In Halsbury, Hailsham Edn, Vol 24, p 49, para 85, it is said:

‘It is an unreasonable and unlawful use of property by the owners of occupiers to allow premises to become or remain in a ruinous or dangerous condition …’

I am satisfied that the duty owed to a neighbour is not less than the duty owed to a member of the public using a highway. It would be indeed strange if a man standing in his own doorway had not remedy for the collapse upon him of his neighbour’s house, while he would have had a remedy if he had taken one step into the highway. The owner is responsible for preventing his premises from getting into such a state of disrepair as to be a danger, and he ought to have in contemplation the danger to a neighbour, at least as much as the dangers to users of the highway.

Therefore, whether on the ground of nuisance of on the ground of negligence, I find that Mrs Smee, and therefore her estate through Miss Smee, is liable for damages.

All England Law Reports 1936 - books on screen™

All ER 1946 Volume 1

Preamble

Judgment for the plaintiffs with costs.

Solicitors: Godden, Holme & Co (for the plaintiffs); Blyth, Dutton & Co (for the defendant).

P J Johnson Esq Barrister.

􀂭 496􀀉

[1946] 1 All ER 497