Bryant & Anor v Macklin & Anor

For trespass causing damage to land, damages may be measured by diminution in value, the reasonable cost of reasonable reinstatement, or an intermediate figure, according to the circumstances. Reinstatement remains available even where it exceeds diminution in value, but its cost must be objectively fair to both parties and proportionate to the benefit. The court should ask what a reasonable person with ample funds would spend, rather than simply adopt the claimant’s preferred scheme. Reinstatement need not restore the amenity immediately if it provides a worthwhile benefit over time. Where partial reinstatement leaves residual loss of amenity, general damages may be awarded. Deliberate or high-handed conduct aggravating the injury may justify aggravated damages.

The claimants owned a house adjoining land occupied by the respondents, whose livestock damaged trees and boundary features. After the respondents’ defence was struck out, a recorder assessed damages in their absence. She awarded £25,000 for diminution in property value, together with general damages, aggravated damages and incidental costs, totalling £33,512.50.

The claimants appealed, contending that reasonable reinstatement costs should be awarded instead, and that the awards for loss of amenity and aggravated damages were inadequate. The central issues were the proper measure of damages for the damaged trees and the appropriate assessment of amenity and aggravated loss.

1. Appeal allowed. The recorder had wrongly measured the principal loss by diminution in value. The appropriate measure was reasonable reinstatement.
2. The principles in Scutt v Lomax (unreported, 25 January 2000) and the fairness guidance in Farmer Giles Ltd v Wessex Water Authority and another ([1990] 1 EGLR 177) required an objective assessment of whether the proposed reinstatement was reasonable and fair to both parties. A cost disproportionate to the benefit should not be awarded.
3. Reinstatement costing about £193,000, or approximately £125,000 for heavy standard trees on both boundaries, was unreasonable. The claimants’ preference for mature trees was not decisive. Nor did the fact that young trees would take years to mature justify rejecting that option, since every viable scheme would take time. Young whips costing approximately £44,544 including VAT would provide a worthwhile benefit and represented expenditure which a reasonable person with ample funds would accept. The court substituted £44,500.
4. Partial reinstatement would not immediately restore the former screening and amenity. General damages therefore had to reflect the direct effect on enjoyment of the claimants’ home and the prolonged period before the trees matured. The award was increased to £12,000.
5. Under the principle stated in Rookes v Barnard and others ([1984] AC 1129), where damages are at large, the defendant’s motives and conduct may be considered where they aggravate the injury. The respondents’ deliberate and high-handed conduct justified aggravated damages of £4,000.
6. The substituted total award was £65,012.50, comprising £44,500 reasonable reinstatement costs, £12,000 general damages, £4,000 aggravated damages and £4,512.50 incidental special damages.

• Court of Appeal (Civil Division): On 23 June 2005, the court allowed the appeal and substituted an award of £65,012.50. [2005] EWCA Civ 762
• Medway County Court: Recorder Jane Plumptre assessed damages after the respondents’ defence had been struck out and awarded £33,512.50. The order was made on 12 April 2004, although dated 22 March 2004.