Authority for damages exacerbating an existing structural issue

YellowFeather

Hey all

I'm having a bit of trouble getting a definite authority for a damages claim. I'm not looking for legal advice, but, rather, any case law that might address this issue.

Basically, this involves a premises (Property A) which suffered relatively minor damage (cracking) due to works to an adjoining property (Property . As it turns out, there was an inherent structural defect in the common wall of both properties dating back to when Property A was built.

The inherent defect had already caused a small amount of damage, which was worsening, but it looks like the works to Property B exacerbated the situation and will possibly cause / speed up future issues.

While repairing the damage directly caused to Property A would be relatively inexpensive, sorting out the inherent issue would be a huge amount of work.

I would have thought that Property A needs to be restored to the condition it was pre the works to Property B, but this is a bit cloudy where it may or may not cause future issues (experts are disagreeing at this stage).

I have found some authority where, rather than the cost of repairs, the diminution of the property's value is awarded, but that would also be difficult to measure if we're looking at possible further deterioration.

A few more points:

• the works to property B were largely restorational in nature, but included de-damping the property (which, if left untreated, would have caused problems in itself). It's argued(ish) that the de-dampening is what caused the cracks;
  
• there were a more than average number of contractors and sub-contractors engaged to carry out the work on Property B, between all of which, in my view, took more than reasonable precautions to ensure the works were carried out safely (they maintain that there was no reasonable way that they could have been aware of the inherent defect);
  
• the owners of Property A carried out previous plumbing works which were, seemingly, DIY and improperly done, within the party wall. While these don't seem to have caused any damage, now that they have been uncovered, they will probably have to be re-done in line with proper standards;
  
• settlement isn't an option, with both parties being poles apart.

Anyway - long story short(!) - I don't believe that Property B should be liable for repairing the inherent structural defect (I'm so sick of that phrase), but, I'm not sure when the works may have exacerbated the previous problems and, so, returning Property A to its prior state may involve more than fixing the cracks.

This can't be a unique situation, but I haven't been able to find anything definitive. Any point in the right direction would be hugely appreciated!

Pat Mustard

Yellowfeather,

I'll give a quick stab and see if any suggestions arise that might be of any use to you. Please excuse awkward phraseology. As you know legal advice has to be avoided as we proceed.

I'm sorry if I begin to sound like a broken record here, constantly harking back to your engineer and what he might say.

Here goes:

YellowFeather wrote: »

Basically, this involves a premises (Property A) which suffered relatively minor damage (cracking) due to works to an adjoining property (Property . As it turns out, there was an inherent structural defect in the common wall of both properties dating back to when Property A was built.

Have you considered possible liability of the original builder of Property A here? Have you considered the statute of limitations against any such builder? Is that possible? Is he still in business?

Can your engineer say when the damage first occurred? This is not to ask when the damage was first noticed, which is a different question. Have a look at cases re statute of limitations in building cases: Ward v McMaster, Irish Equine Foundation, Morgan v Park Developments. Maybe these are relevant to you but it's been a little while since I looked at those cases. I can get back with citations where necessary.

YellowFeather wrote: »

The inherent defect had already caused a small amount of damage, which was worsening, but it looks like the works to Property B exacerbated the situation and will possibly cause / speed up future issues.

I am going to harp on about this a bit, because I think that some engineers are likely to use the word 'possibly' a bit too often, but when they are asked if they would swear to it on the balance of probabilities, they may not be so sure. So I ask, is this something which your engineer would say that has occurred (or will occur, where relevant), on the balance of probabilities? Or not?

YellowFeather wrote: »

While repairing the damage directly caused to Property A would be relatively inexpensive, sorting out the inherent issue would be a huge amount of work.

What can your engineer say about who is ultimately responsible for causing the damage? Does he say that it was the original builder of Property A or does he say it was the new builders on Property B, or some other party? Does he say that there may be an element of contribution? If so, what?

Does he have an idea of the costs of works?

YellowFeather wrote: »

I would have thought that Property A needs to be restored to the condition it was pre the works to Property B, but this is a bit cloudy where it may or may not cause future issues (experts are disagreeing at this stage).

What does your engineer say about the likelihood of future issues arising? What does he say about who is responsible for these issues? What does he say about the cost of remedying these problems?

YellowFeather wrote: »

I have found some authority where, rather than the cost of repairs, the diminution of the property's value is awarded, but that would also be difficult to measure if we're looking at possible further deterioration.

Can't help on that issue, I'm afraid.

YellowFeather wrote: »

the works to property B were largely restorational in nature, but included de-damping the property (which, if left untreated, would have caused problems in itself). It's argued(ish) that the de-dampening is what caused the cracks;

Argued(ish) makes me unhappy. What does your engineer say on the matter? What does he say are the cause of the cracks, on the balance of probabilities?

YellowFeather wrote: »

there were a more than average number of contractors and sub-contractors engaged to carry out the work on Property B, between all of which, in my view, took more than reasonable precautions to ensure the works were carried out safely (they maintain that there was no reasonable way that they could have been aware of the inherent defect);

What does your engineer say about this, as opposed to the contractors? Can your engineer say that someone was negligent and that their negligence caused the damage, on the balance of probabilities?

YellowFeather wrote: »

Anyway - long story short(!) - I don't believe that Property B should be liable for repairing the inherent structural defect (I'm so sick of that phrase), but, I'm not sure when the works may have exacerbated the previous problems and, so, returning Property A to its prior state may involve more than fixing the cracks.

I wonder if this is possibly less of a legal question and maybe more of a question of engineering evidence?

Victor

You need to look at the time immemorial rule and non-negligence insurance. There is a general principle that the developer pays, but that may be dependent on the facts.