Crowley (t/a Crowley Civil Engineers) v Rushmoor Borough Council

For contribution purposes, liability may arise on any legal basis, including negligence, breach of contract, breach of statutory duty, nuisance or interference with an easement of support. A building owner undertaking excavation within the statutory distance of an adjoining building must comply with the mandatory notice and protection regime under the Party Wall etc Act 1996. Failure to do so may constitute breach of statutory duty and may support damages measured by the compensation that would have been awarded under the Act. An independent contractor must not follow instructions which create an obvious and immediate danger to persons or structural stability, even where its contract requires compliance. Contribution is apportioned under the Civil Liability (Contribution) Act 1978 by what is just and equitable, having regard principally to culpability and causative responsibility.

The claimant contractor sought a contribution from the defendant local authority under section 1(1) of the Civil Liability (Contribution) Act 1978. The claim followed the claimant’s settlement of proceedings brought by the owners of a house that partially collapsed during paving works on land owned by the authority.

The works removed a planter which had provided structural support to the house’s unusually shallow flank-wall foundations. The issues included the contractual allocation of responsibility, the parties’ negligence, the effect of the Party Wall etc Act 1996, causation, and the appropriate contribution.

1. The claimant and defendant were both potentially liable to the owners for the same damage. Liability could arise in negligence, nuisance, withdrawal of support, interference with an easement of support, breach of contract or breach of statutory duty.

2. The authority should have investigated the site, obtained trial pits and levels information, designed temporary and permanent support, prepared adequate contract documents, supervised the work and urgently implemented safe emergency measures. Its failure to do so amounted to a series of interlinked breaches which jointly caused the collapse.

3. The Party Wall etc Act 1996 applied because the authority proposed excavation within three metres of the adjoining building to a level below its foundations, and because the planter constituted structural support and a party structure. The statutory notice and protection provisions were mandatory. Failure to comply could amount to breach of statutory duty, with damages limited to the compensation that would have been available under the Act.

4. The contractor had carried out the original excavation with reasonable workmanship and without over-excavation. It was entitled to rely on the authority’s contractual assurance that excavation up to the flank wall was safe. However, once the foundations were dangerously exposed, the danger was obvious and immediate. The contractor should have refused to carry out further excavation and insisted on professional advice and evacuation of the house. Its contractual obligation to follow the authority’s instructions did not override its duty to protect neighbours, workmen and structural stability.

5. The authority’s breaches and the contractor’s later failures were cumulative causes of the damage. They could not properly be separated into a single operative cause.

6. Applying section 2(1) of the Civil Liability (Contribution) Act 1978, it was just and equitable for the authority to bear 80 per cent of the claimant’s liability under the settlement. The authority was overwhelmingly culpable and its acts and omissions were the predominant cause of the damage. The claimant was liable for the remaining 20 per cent.

7. The authority was ordered to reimburse 80 per cent of the settlement sum, interest and recoverable costs, together with appropriate interest on sums paid by the claimant. The authority’s claim for a declaration failed.