Summary Judgment in Negligence and Nuisance Property Dispute Refused
01/10/2022
In the case of Surer v Driver [2021] 11 WLUK 189 a Claimant homeowner was refused summary judgment regarding her claim of negligence and nuisance against an adjoining property owner. The Claimant, C was required to prove damage and causation, and this required a trial. Furthermore, if a trial was held it was concluded that the Defendant, D, had a real prospect of success in some elements of the case.
Background to the decision
C and D owned adjoining terraced houses. C’s son lived in her house. D’s property had been unoccupied for many years and was in a state of considerable disrepair. C had communicated her concern about the adjoining property to D several times.
In early 2021 C brought proceedings against D alleging that his failure to maintain the property had resulted in it falling into a dangerous state of disrepair, causing damage to her property including flooding, dampness, water ingress, mould, and a rat infestation. C also claimed nuisance, including by encroachment of water and vegetation and by the interference of reasonable enjoyment of her property, and negligence. A joint expert report had been prepared; however, the experts failed to agree on whether or not particular examples of damage had resulted from the condition of D’s property.
In applying for a summary judgment, C claimed that liability was inevitable and causation issues could be raised when quantum was decided.
The High Court’s decision
The application for summary judgment was refused.
C used the cases of Lunnun v Singh (Hajar) [1999] C.P.L.R. 587, [1999] 7 WLUK 5 and Symes v St George's Healthcare NHS Trust [2014] EWHC 2505 (QB), [2014] Med. L.R. 449, [2014] 7 WLUK 846 to support her argument that in nuisance claims, liability followed from the facts, and D could argue individual items of causation at a later date. The High Court distinguished Lunnan because the judgment concerned an encroachment on that particular Claimant’s property, therefore, the nuisance constituted a single act with the cause of the act being complete once the encroachment occurred. The only question to answer was whether and to what extent loss had been caused.
In the instant case, there was a single act of encroachment, namely when water from the D’s gutter ran down the C’s wall. A claim of nuisance that constituted the loss of enjoyment of one’s property, however, required an interrelationship between behaviour on D’s property and damage to C’s property. In such a case damage had to be found for liability to occur. Similarly, negligence was only complete as a cause of action when D’s act or omission caused damage. The disrepair of D’s property was not an interference or a liability in itself – for negligence to occur, the neglected state of D’s house must have caused damage to C’s property. In this particular claim and in the expert report the allegations of nuisance and negligence were interwoven. Parts of the expert report mentioned that the defence related not just to the loss caused to C’s property but whether or not D’s acts or omissions resulted in that loss. Therefore liability was not inevitable, the claim did not rest on single acts that constituted torts in themselves; the claim's elements meshed together and D ‘s defence in relation to some of the claim’s had a real prospect of success.
Comment
Local Authority and registered social landlords are likely to find this an interesting decision as it provides a helpful illustration of not only the circumstances in which a summary judgment may be granted but also of the interlinking of property disputes involving elements of nuisance and negligence.
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