Brittany Pearce, Real Estate barrister was recently involved in a dispute between neighbours concerning her client’s retaining wall, which was in disrepair and required replacement. The cost of replacing the wall with a stronger wall which didn’t encroach further on to either party’s driveway was estimated to be £25,000. The parties couldn’t agree why the wall required replacement or who should bear the cost and litigation ensued. By the end of proceedings, the parties had spent around £160,000 on legal fees and disbursements. In this article Brittany will discuss the measured duty of care as well as her thoughts on dealing with these claims in a proportionate manner.

The facts

Brittany’s client (the claimant) purchased his plot of land in 1987 and built his property soon after. The plot, and the neighbouring plots, were situated on a hillside, consequently the houses on those plots were excavated into the hillside. In constructing his property, her client excavated his land and constructed a retaining wall along the border of his property and the plot that was bought by the defendant some 15 years later, on which the defendant built his property. The claimant alleged that, in the course of his build, the defendant had raised the level of his land, and that the additional loading against the wall had caused it to fail. The defendant denied raising the level of his land and further argued that even if the levels had been increased, this was not the cause of the disrepair. On appeal the defendant brought in a London KC and Brittany represented the claimant. The appeal lasted for a day and involved minute consideration of the case law and its development, with the defendant arguing that the risk of failure had not been established to be sufficiently immediate (thus, it was said, there was no hazard such as to engage the duty), that what was reasonable, if there was a hazard, was some lesser action than rebuilding the wall, and that the cost of any action should be borne equally, given the equal benefit derived from the wall. The appeal was dismissed, and the claimant awarded his costs.

What is the measured duty of care?

The measured duty of care has been developed through case law, starting with the Australian case of Goldman v Hargrave [1967] 1 AC 645, made famous (if only within the chancery circle, which is not the largest of circles) in Leakey v National Trust for Places of Historic Interest or Natural Beauty [1985] QB 688 (CA), and considered in a variety of cases since, most relevantly for this case, in Ward v Coope [2015] 1 WLR 4081 (CA).

The measured duty of care requires occupiers to do what is reasonable in the circumstances to prevent or minimise a known, or knowable, risk of damage to neighbours or their property. Unlike the torts of nuisance and negligence, the measured duty of care is not fault-based. When it comes to assessing how the burden of meeting the cost is to be borne, the court should strive for a result which is fair, just and reasonable.

Retaining walls

If you have a retaining wall case there are a number of things worth considering, from a factual and legal perspective. On the factual side it is important to understand whether the wall is, actually, in disrepair. If the wall has fallen down, you likely have your answer. If the wall has not yet fallen down: will it fall down? If so, when? Does the wall require rebuilding or can some alternative repair be effected? Was the wall adequate to begin with? What is the cause of the damage? On the legal side, does the Party Wall Act apply? What rights of support exist in respect of the land (e.g. natural, easements, etc)? Should you be considering a fault-based claim (e.g. in nuisance) as well as, or instead of, a claim based in the measured duty of care?

The measured duty of care & retaining walls

There may be a number of reasons why you pursue a claim based in the measured duty of care. It may be that you’re not confident you can get home on the ‘fault-based’ torts of nuisance and/or negligence. For instance, there may be concerns about proving that the defendant caused the damage.  If you can get home on nuisance and/or negligence, you don’t need to look at the measured duty of care, although you may choose to plead it in the alternative from a ‘belts and braces’ perspective.

In Ward v Coope, the predecessors in title of the higher land had raised the level of that land as against a retaining wall. The wall collapsed without warning after a heavy snowfall. Litigation ensued as to who should bear the responsibility for re-building the wall. The wall’s collapse was not the fault of either party. On appeal, it was held that the upper landowner should bear the cost of re-building the wall: the lower landowners did not derive any benefit from the increased land levels and were the victims of the collapse.

In Brittany’s case the judge was persuaded (and his order upheld on appeal) that there was a hazard, given that the experts agreed that the wall was in disrepair and was inadequate. The judge further agreed that the Defendant had raised the level of his land in the course of his build, and that this was the cause of the disrepair, the wall otherwise having been constructed in a satisfactory manner. As in Ward v Coope, the judge agreed that the claimant, as lower land-owner, derived no benefit from the increased land levels as against the Wall and, whilst he should accommodate the re-building of the Wall, the cost of the same should be borne by the defendant alone.

Practice points

Brittany has touched on some points for consideration above but she would add that these types of claim tend to be costly (expert evidence is inevitable) and they are likely to take their toll on neighbourly relations. There is much to be said for early compromise, especially if the cost of litigation is likely to far outstrip the cost of works, and parties should bear in mind not only the cost of litigation, but how and whether a dispute might affect future plans for their property.

Brittany is ranked as a ‘rising star’ in tier 1 by The Legal 500, and by Chambers & Partners. She acts for clients in a range of real property matters, including boundary disputes and adverse possession claims, the enforcement of restrictive covenants and the creation of and interference with easements.

She will be discussing the measured duty of care in greater detail as part of our webinar series on 12 September 2023. If you’re interested in learning more about this, flooding claims and mediating property disputes (and who isn’t), you can find more information here.