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

A building owner undertaking excavation beside an adjoining building must investigate the foundations, comply with the Party Wall etc Act 1996, design protective measures and supervise the work competently. Statutory notices and procedures remain mandatory even where the owner does not appreciate that the Act applies. An independent contractor must not implement instructions which create an obvious and immediate danger to adjoining structures or persons, even where the contract requires compliance. For contribution purposes, liability may arise on different legal bases, and responsibility is apportioned by what is just and equitable having regard 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 an action brought by adjoining homeowners after their house partially collapsed during paving works carried out for the authority.

The central issues were whether the authority and contractor were liable for the collapse, whether failures under the Party Wall etc Act 1996 could support liability and contribution, and what apportionment was just and equitable.

1. Liability and contribution. The claimant and defendant were both persons from whom the homeowners were entitled to recover compensation. Their liabilities could arise in tort, contract, breach of statutory duty or otherwise. Contribution was to be apportioned under section 2(1) of the Civil Liability (Contribution) Act 1978 according to what was just and equitable, having regard to each party’s culpability and causative responsibility.
2. Rushmoor’s breaches. The authority should have obtained trial pits, a levels survey and cross-sections; investigated the shallow party-wall foundations and the structural support supplied by the planter; designed temporary and permanent support; prepared adequate contract documents; complied with the Party Wall etc Act 1996; supervised the excavation; and taken urgent protective measures when the foundations were exposed. The statutory procedure was mandatory even if the authority believed that the Act was not engaged.
3. Statutory duty. Failure to comply with the Party Wall Act amounted to breach of statutory duty. In the circumstances, damages could be quantified by reference to the compensation that would have been awarded under the Act. The court rejected the submission that such liability could not contribute to the apportionment.
4. Contractor’s liability. The contractor had not over-excavated and had complied with its contractual excavation obligations. However, once the exposed foundations created an obvious and immediate danger, it should have refused to carry out further excavation which would exacerbate that danger and should have sought professional advice and evacuation of the house. Its duty to preserve safety and structural stability overrode its contractual duty to follow the authority’s instructions.
5. Causation and apportionment. The collapse resulted from an interlinked series of acts and omissions. The authority was responsible for all the operative causes or, alternatively, all but the contractor’s two contributing causes. It was therefore just and equitable for the authority to bear 80 per cent of the settlement sum, interest and recoverable costs. The authority’s claim for a declaration failed.