CourtRoyal Court
Judge(Le Masurier, Bailiff and Jurats Lloyd and Hamilton):
Judgment Date19 March 1971
Date19 March 1971
(Le Masurier, Bailiff and Jurats Lloyd and Hamilton):

J.C.K.H. Valpy for Mr. Searley;

M.M.G. Voisin for Mrs. Dawson;

P. de C. Mourant for Mr. Rothwell;

R.G. Day for Mr. Davies.

Construction Industry—damages—third party's damages—if architect and contractor negligently responsible for structural damage to neighbouring property, employer has liability to neighbour and cannot pass it to them

Land Law—servitudes—right of support—arises out of obligations of voisinage not to use land so as to cause damage to neighbour's land—not to excavate on own land so as to cause subsidence on neighbour's—not entitled to pass liability to architect and contractor

Tort—nuisance—voisinage—obligations of voisinage require landowner not to use land so as to cause damage or nuisance to neighbour—not to excavate own land so as to cause subsidence on neighbour's—not entitled to pass liability to architect and contractor

LE MASURIER, BAILIFF: In this case we find the following facts to have been established.

At Gorey there is an angular piece of land formed by the coast road leading to Gorey Harbour and the hill leading from the harbour inland.

Many years ago, probably more than a hundred years, and indeed before the coast road was constructed, there had been built on that piece of land a row of houses. The houses were of a humble character and built of random stone in the manner of their day. The nature of their construction might readily be assessed from their appearance.

The land on which the houses were built slopes down from north to south and from west to east. Mr. Searley's house "Sea View" lies towards the east of the row. Mr. Dawson's house "Oldholme" lies immediately west of Mr. Searley's.

Mr. Searley bought his house, with the assistance of a States loan, in 1965, and Mr. Dawson bought his house in 1968. When he bought it, "Oldholme" consisted of a stone house which abutted on the eastern gable of its western neighbour and a stone lean-to building which abutted on the western gable of Mr. Searley's house. Because the title to "Oldholme" disclosed no right to the latter abutment, Mr. Dawson was advised that no such right existed and that the gable to which the lean-to was attached was Mr. Searley's unrestricted property and, thereafter, everything proceeded on that basis.

The lowest room of the house "Oldholme" was in its south-west corner, and was, in relation to the coast road, a ground floor room, but in relation to the hill behind the house, was a basement room. It was referred to throughout the case as "the basement".

Mr. Dawson decided to demolish "Oldholme" and to have built on the site of the house and lean-to building a new house. For that purpose he engaged the services of Mr. Davies, an architect, and Mr. Rothwell, an engineer, and instructed them to prepare plans and to supervise the work of construction.

According to those plans, the area of the basement was to be considerably enlarged and was to contain a double garage, a boiler room, a staircase, a lobby and a utility room. It therefore became necessary to excavate the site both northwards towards the hill and eastwards to within three feet of the southern half of Mr. Searley's gable wall. Furthermore it was necessary to maintain that excavation by building a reinforced concrete retaining wall.

Mr. Dawson in due course approved the plans and the building contract was let to a Mr. Tom Oswald Philip Walker, a building contractor.

The demolition of "Oldholme" was begun in September 1968 and the construction of the retaining wall near Mr. Searley's gable had been completed by 18th November, 1968. Meanwhile signs of damage became apparent in Mr. Searley's house and continued to manifest itself thereafter. That damage we attribute to the work done on the "Oldholme" site on behalf of Mr. Dawson.

We now state our reasons for so finding.

Mr. Searley had been employed in the building trade and so had some technical knowledge. According to him, the first work to be undertaken after the demolition of the old buildings was that of excavation which, he said, and to his then alarm, went down on its northern side to some eight or ten feet below the existing ground level, and, for a time, exposed a part of the foundations of his gable. He also said that a tap which the builders had, without authority, connected to the public water supply had been allowed to leak and to continue leaking and that the water had flowed towards the foundations of his house.

He noticed signs of damage occuring to his house and, eventually, he called in Mr. George William Gyllenship, a clerk of works in the employ of the States. Mr. Gyllenship inspected Mr. Searley's house on 20th November, 1968, and between that date and 21st May, 1969, he made seven reports as follows—

"20th November, 1968.


I inspected 'Southview' the property of Mr. J. Searley, on the 20th November, 1968, re damage alleged to have been caused by building works on the adjoining site.

'Southview' is stone built and is in good state of repair. An adjoining property has been demolished, and the site excavated over half its area to within three feet of the West gable of 'Southview' to a depth of eight to ten feet.

A new retaining wall has been built to original ground level, and Mr. Searley tells me that during excavation, and before the retaining wall was built, no precautions were taken to prevent damage to his house.

I was shown cracks in the front and rear elevations, also inside the house, and Mr. Searley says these have only appeared since work was started on the adjoining site.

The builder and architect have been...

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