Abbahall Ltd v Smee

The owner of property from which a hazard (natural or man-made) threatens a neighbour owes a duty to take what is reasonable in all the circumstances to prevent or minimise foreseeable harm.

Where remedial works will benefit more than one owner, it is fair, just and reasonable that beneficiaries share the cost, normally in proportion to benefit and, absent special reason, equally.

An injunction compelling a defendant to carry out repairs may be granted only on terms securing that the claimant will contribute his proper share of the cost.

This is an appeal from a County Court judgment concerning urgent repairs to a mews building in which the appellant owns the ground floor and the respondent owns the upper floors (a flying freehold). Judge Cotran had ordered works and apportioned only one quarter of the cost to the respondent. The Court of Appeal was asked to decide the content and scope of the defendant's duty of care and whether the cost of abating the nuisance should be shared, and if so on what basis. The central question was the proper legal test for liability and the appropriate apportionment of remedial costs between vertically adjoining freehold owners.

1. Disposition: Appeal allowed in part. The court substituted an award of £2,592 for prior damages and ordered that the remaining works and surveyor's fees be borne half by the claimant and half by the defendant.
2. Duty: Per Munby J (with Chadwick LJ agreeing), the applicable duty is the "measured" duty described in Goldman v Hargrave and developed in Leakey: an occupier must do what is reasonable in all the circumstances to prevent or minimise a known risk to a neighbour. The standard is factual and broad, taking into account foreseeability, practicability and the individual circumstances of the occupier.
3. Reasonableness and apportionment: The court endorsed Lord Cooke's approach in Delaware Mansions that reasonableness between neighbours governs apportionment. Where a common element (here a roof) equally protects both properties, it is fair, just and reasonable that beneficiaries share the cost, ordinarily equally. Apportionment should be decided on a broad, impressionistic basis.
4. Remedies and injunctions: A mandatory injunction compelling a defendant to carry out repairs can only be granted on terms securing that the claimant will pay or undertake to pay his proper share. Alternatively, where the claimant is given access to abate the nuisance, he may recover from the defendant damages equal to the defendant's proper contribution.
5. Poverty of defendant: The defendant's impecuniosity was not a sufficient reason to alter apportionment in this case. The court rejected the notion that shares should fluctu­ate with transient financial circumstances of owners.
6. Practical guidance: In flying freehold cases where a roof affords common benefit, equal sharing is the default starting point unless there are good reasons to vary it. The court reserved questions about radically greater potential costs and different topographies.

• County Court (West London): His Honour Judge Cotran gave judgment on 15 January 2002, ordered works and apportioned 25% of costs to defendant.
• Court of Appeal (Civil Division): Munby J (with Chadwick LJ) allowed the appeal in part on 19 December 2002, substituted damages and ordered equal apportionment of future costs. (Neutral citation: [2002] EWCA Civ 1831.)