Surer v Driver

Summary judgment is inappropriate where liability depends on disputed issues about whether particular damage was caused by the defendant’s acts or omissions. The analysis depends on the cause of action. A nuisance by encroachment is complete when the encroachment occurs, but nuisance based on interference or damage and negligence require proof of the relevant effect or damage. Where those causes of action are interwoven, and the defence has real prospects on causation and liability, the claim should proceed to trial. A deficient defence may nevertheless be struck out where it is irrelevant, ambiguous or otherwise obstructs the just disposal of the proceedings, with an opportunity to serve a properly pleaded replacement.

The claimant and defendant owned adjoining properties separated by a party wall. The claimant alleged that disrepair at the defendant’s property caused encroachment, flooding, damp, water ingress, mould, vegetation damage and rats affecting her property. She advanced claims in nuisance and negligence.

The claimant applied for summary judgment, alternatively strike-out of the defence, and sought to have the matter proceed to a quantum-only trial. The defendant relied on disputed expert evidence concerning whether particular damage was caused by the condition of his property. The central issues were whether liability could be determined separately from causation and quantum, and whether the defence should be struck out.

1. Summary judgment dismissed. The claim involved different causes of action whose elements could not be separated at the level sought by the claimant.
2. A nuisance by encroachment is complete once the encroachment occurs. The subsequent question is what loss was caused by that completed cause of action. That analysis was materially different from nuisance based on interference with reasonable enjoyment or damage to property, where the interference or damage is an essential element.
3. Negligence likewise requires more than an act or omission. Liability is not established unless consequential damage results from the act or omission. Disrepair at the defendant’s property did not itself create liability without an effect on the claimant’s property.
4. The expert evidence disclosed real issues as to whether particular damage resulted from particular acts or omissions. The claims in nuisance and negligence were interwoven, so the court could not determine liability while leaving causation and the extent of liability for a later quantum-only trial.
5. The defence was nevertheless struck out. It contained irrelevant matters, untenable lines of argument, and ambiguous assertions that matters were largely denied. In that form it obstructed the just disposal of the proceedings.
6. A replacement defence was to be served within fourteen days. It had to be based on the facts and matters identified by the defendant’s expert and could not withdraw admissions made in the struck-out defence or in the expert’s comments. There was no order as to costs, reflecting the claimant’s failure on summary judgment and the defendant’s deficient pleading.