Roadrunner Properties Ltd v Dean & Anor

Temporal proximity may support an inference of causation where the later damage is of the kind naturally expected from the earlier work. Expert speculation does not displace that common-sense inference without cogent supporting evidence.

Where a building owner undertakes party-wall work without the statutory notice, and thereby deprives the adjoining owner of an opportunity to record the premises and monitor the work, the court should adopt a reasonably robust approach to causation. The claimant retains the burden of proof, but the defaulting owner should gain no forensic advantage from the absence of evidence caused by that default.

The claimant owned premises adjoining property at which contractors cut a channel into a party wall using a powerful percussion hammer. No notice had been served under the Party Wall etc Act 1996. Shortly afterwards, floor tiles lifted and cracks appeared in the claimant's conservatory and elsewhere.

The claimant sued the building owner and contractor in nuisance and negligence. The county court preferred the defendants' expert explanation and dismissed the claim. The claimant appealed, principally contending that the judge had wrongly assessed the competing explanations for the damage.

The central issue was whether the claimed damage was probably caused by the party-wall work and what significance should be attached to the defendants' failure to use the statutory notice procedure.

1. Appeal allowed in part. Chadwick LJ, with whom Sedley LJ agreed, held that the county court had wrongly rejected the claimant's explanation for the damaged conservatory floor and walls. Judgment was entered for £1,740, comprising repair of the conservatory floor and cracks in the conservatory, kitchen and bedroom walls. The remaining alleged damage was not proved to have resulted from the work.

2. The relevant inquiry was which of the two competing explanations was more probable. The close temporal connection between the use of a powerful percussion hammer against the party wall and damage consistent with severe vibration was a proper and potentially highly material basis for inferring causation. The defendants' alternative theory depended upon exceptional atmospheric conditions, but no meteorological evidence supported it. Cogent evidence was required to rebut the natural inference of cause and effect.

3. A building owner who carries out party-wall work without serving the notice required by the Party Wall etc Act 1996 should gain no forensic advantage from the resulting absence of a pre-works survey or contemporaneous monitoring. Where the damage is of the type reasonably expected from the work, the court should take a reasonably robust approach to causation and be slow to prefer unsupported, ex post facto hypotheses. The claimant nevertheless retains the burden of establishing the causal link from the available material.

4. An appellate court remains cautious before disturbing findings based upon oral evidence, including expert evidence. It may nevertheless examine whether an expert's stated reasons support the expert's conclusion. Here, the trial judge's preference for the defendants' expert involved a non sequitur and rested on a false principle that temporal coincidence was not a forensic tool.

5. Per Sedley LJ, the modest dispute was a paradigm case for a single jointly instructed expert under rule 35.7 of the Civil Procedure Rules. If the parties could not agree upon the expert, the court could break the deadlock by selecting or directing the method of selection. An expert should identify possible causes, leaving the judge to determine their relative probabilities.

6. The claimant was awarded its costs of the appeal and trial. Proper statutory notice, or a modest Part 36 offer, could have avoided or controlled the disproportionate costs.

1. Court of Appeal (Civil Division): The appeal was allowed to the extent that causation was established for the damaged conservatory floor and cracks in specified walls. Judgment was entered for £1,740, with the claimant receiving its costs of the appeal and trial.
2. Mayor's and City of London County Court: HHJ Cox had preferred the defendants' expert evidence and dismissed the claim. That decision was reversed in part.