Litigation Recent Decisions 29/10/96

Foreseeability in tort claims

Summary: Whether foreseeability is an essential element in proving liability in tort.

Question: Insured is a property owner. He has DIY skills but has no specific professional skills in the building trade. He installed a soak-away near the top of an embankment. Owing to the unstable nature of the embankment there was a landslip. This has resulted in damage to a neighbouring property. A claim is being prepared for the removal of support in tort of nuisance. Is it correct that the damage must have been foreseeable for any liability to exist?

Answer: In negligence and nuisance and probably in all other torts only such damages are recoverable as are reasonably foreseeable consequences of the tortious act. Nominal damages are recoverable or, in suitable circumstances, an injunction is granted: but if damages for particular loss are sought, causal connection between the tort and the alleged loss are shown – 45 Halsbury's Laws (4th Ed) 1209. It is a question of fact whether the DIY builder failed to show reasonable care in the circumstances but having held himself out as able to install the soak-away, he is required to show the skill normally possessed by persons doing work of that kind – 34 Halsbury's Laws (4th Ed) 12. Therefore it is submitted that this provides the yardstick by which liability will be determined but the foreseeability of the damage will determine what measure of compensation by way of damages will be awarded – see Patterson & anr v Humberside (1995) [FN 1]; Ward v Cannock Chase (1985) [FN 2]. However, in the case of the escape of dangerous things it would seem from the House of Lords decision in Cambridge Water Co. v Eastern Counties Leather (1994) [FN 3], summarised below, that foreseeability is a prerequisite to liability in Rylands v Fletcher type cases involving the escape of dangerous things. However, it is submitted that this is probably not applicable in the case of a landslip so that liability will depend on the way the work was carried out but the quantum of damage recoverable will depend upon foreseeability.

Supplementary text:

Cambridge Water Company v Eastern Counties Leather (1994)

TLR 10/12/93; ILR 10/12/9Defendants' appeal against judgment holding them liable for water contamination by perchloroethene chemicals used in its tanning works located 1.3 miles from the plaintiff's borehole.