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:
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’
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.
Ann Minogue is a partner in solicitor Linklaters.