Ann Minogue - Demolition contractors can be liable for damage to adjoining buildings – even if they could not have foreseen its precise cause
Last month, I looked at a case that will worry project managers. This month, it is the turn of demolition contractors. The case relates to damage caused to a post-production sound facility for the film and television industry owned and operated by Video London Sound Studios. The damage was caused by redevelopment of the adjoining site, which was owned by Asticus (GMS).

VLSS' building was soundly constructed but a chimney breast had been removed. There was a brick seal to the flue at second floor and basement level. The remnants of the chimney were hidden by a false ceiling. The seal had held for at least 15 years. In May 1997, brick, dust and debris fell from the flue above the false ceiling with such force as to break the brick seal, landing on the electronic equipment below. The rubble had probably entered the chimney following removal of part of the chimney breast by VLSS about the time it occupied the building. VLSS claimed damage to its equipment and business interruption/loss of profit. It claimed on three bases:

  • The party wall claim. The issue here was the extent to which the property damaged constituted part of "the adjoining premises or to the internal finishings and decorations thereof" under the London Buildings (Amendment) Act 1939. In other words, was the equipment a fixture or not? The equipment was largely freestanding and attached to the walls only for the purposes of power supply. So, no claim under the London Buildings Act.

  • Negligence. VLSS suggested that Keltbray, the demolition contractor, was negligent. In particular, it should have inspected the party wall by lifting up the false ceiling tiles. It should have paid heed to previous incidents relating to debris, dust and vibration on the site and investigated more thoroughly. And it should have used handheld tools and not heavy-duty cutting equipment when working on the party wall.

    In fact, Keltbray had carried out a survey of VLSS' building and provided a method statement as to how it would undertake the works. It had used consulting engineers to design a support to the party wall. The experts acknowledged that, when sections of chimney breasts are removed, the debris often falls into remaining flues but they did not agree that the presence in this chimney of debris with the potential to be dislodged was foreseeable on this site.

    The judge did not accept that Keltbray should have inspected the structure above the ceiling tiles. And nothing in the condition of the building apparent on a non-intrusive inspection would have made a competent demolition contractor enquire as to the structural state of the chimney breasts at basement level. So, there was no evidence of negligence.

    Because there was damage, this was not undue interference. But for VLSS’ nuisance claim to succeed, it had to establish that the damage was ‘reasonably foreseeable’

  • Nuisance. Keltbray and Asticus argued that they could not be liable for nuisance because they took all "reasonable steps" to avoid damage. Much of the case law relating to nuisance is concerned with the tort of "unduly interfering with a neighbour's comfortable and convenient enjoyment of his land". The leading case involved demolition works to enable the construction of Selfridges' Oxford Street store. In that case, the court concluded that, since rebuilding was not of "abnormal character", it could not constitute a nuisance provided "all proper and reasonable steps are taken to ensure that no undue inconvenience is caused to neighbours, whether by noise, dust or other reasons". The neighbours must put up with it.

    By this stage of course the defendants thought they would be successful. But, said the judge, because there was actual directly caused physical damage to VLSS' property, this was not a case of undue interference. Issues of noise, dust, vibration, and so on might be subject to the defence in the Selfridges case, but physical damage was not. In the words of the court in another case, "where there is physical damage, the loss should fall on the doer of the works rather than his unfortunate neighbour", even if nothing could have been done to prevent the damage.

    But for VLSS' claim in nuisance on the basis of the physical damage alone to succeed, it also had to establish that the damage was "reasonably foreseeable". Even though the precise mechanism by which damage was caused could not have been reasonably foreseen, the judge had no difficulty in finding that "there was physical activity involving force in relation to the party wall that could affect the adjoining building".

    On this last count, therefore, VLSS succeeded.

    • Postscript

    Ann Minogue is a partner in solicitor Linklaters.