CHANCERY DIVISION WARD v CANNOCK CHASE DISTRICT COUNCIL [1985] 3 All ER 26 June 1985 Full text FACTS: The

plaintiff, his wife and their eight children lived in a house in a row of terraced houses. The plaintiff also owned land adjoining the terraced houses. The other houses in the row were owned by the council and let to council tenants but, as a result of council policy to develop the area for industrial purposes, the houses were not relet or maintained as they fell vacant. Many of the houses suffered damage as a result of the acts of vandals and thieves, including the wholesale removal of tiles, bricks and timber. On 9 October 1982, as a result of vandalism, the rear wall of the house which adjoined the plaintiffs house collapsed, causing damage to the roof of the plaintiffs house. On 3 November the council agreed to repair the damage caused to the plaintiff s house, but it failed to carry out the repairs. On 10 December the council decided that the plaintiff s house was dangerous and unsuitable for habitation and subsequently rehoused the plaintiff and his family elsewhere. SCOTT J: In applying [legal] principles to the facts of the present case, the starting point must be to ask whether the damage caused by the vandals and thieves was a reasonably foreseeable consequence of one or more of the breaches of duty committed by the council. It was, in my view, reasonably foreseeable that, if [the house] were to collapse, serious damage might be caused That, in the event, is what happened. It was also, I think , reasonably foreseeable that, if serious damage were to be caused to [the plaintiffs home], the dwelling might have to be vacated until repairs were done. Given the large hole in the roof of [the plaintiffs home] caused by the collapse of [the house], it would not have been in

the least surprising if the Ward family had felt unable to continue in occupation until, at least, the hole had been covered up. Further, any failure to carry out the necessary repairs with expedition would make it not merely foreseeable that the property would become unoccupied for a while but would make it a matter of surprise if that did not happen. It was, therefore, in my judgment, a reasonably foreseeable consequence of the breaches of duty committed by the council that [the plaintiffs home] would spend some time unoccupied. The actual manner in which the property became unoccupied was not, by any stretch of the imagination, foreseeable. No one could have foreseen that Mr Boulton, the council and the county council would have taken the steps they did in order to force the Ward family out of occupation. But it was, none the less, in my view, a highly likely possibility that [the plaintiffs home], if caused serious damage by the collapse of [the house] and if the damage was not promptly repaired, would have to be vacated. It was also, in my judgement, reasonably foreseeable that, if [the plaintiffs home] were unoccupied, vandals and thieves might cause them damage. Given the record of vandalism and thievery [in the area] it was, to my mind, virtually certain that, if [the plaintiffs home] remained unoccupied for any length of time, they would receive the attention of vandals and thieves. This case is, in my view, different on its facts from Lamb v Camden London Borough in two important respects. First, the likelihood of unoccupied property receiving the attention of vandals was very much higher [in the area] than in Hampstead [i.e. in the Lamb case]. In Hampstead it might have been foreseen as a possibility. [In the plaintiffs area] it ought to have been foreseen as highly likely. Second, in Lamb v Camden London Borough the standpoint from which the foreseeability of the vandal damage was judged, at least by Oliver LJ, was the negligent act. What damage would a reasonable man actually foresee as likely to be caused to Mrs Lambs house by the burst water main? That was the question which Oliver LJ thought should be asked. The answer did not include vandal damage. But the corresponding question in the present case has to be asked not simply from the standpoint of the councils original negligent omission to keep [the house] in a safe condition but from the standpoint of the councils

continued failure to repair the damage to [the plaintiffs home] caused by the collapse of [the house]. If the reasonable man were asked what damage to [the plaintiffs home] he would foresee if there were an indefinite failure to repair the serious damage which had been caused on 9 October 1982, his answer would, in my view, be that the property would have to be vacated and that further damage would be caused by vandals. Counsel for the council submitted that Lamb v Camden London Borough was binding authority for the proposition that, if the effect of negligence is to cause a property to become unoccupied and if while in that state it is damaged by vandals, the damage is too remote to be recoverable. I do not agree that the case is authority for a general proposition of that character. In my judgment, the question whether vandal damage is or is not too remote must be decided by reference to the facts of the particular case in which the question arises and by reference to the particular breach or breaches of duty which are alleged to have led to the vandal damage. In the present case, if the breaches of duty committed by the council had not happened, [the plaintiffs home] would not have become unoccupied and would not have been damaged by the vandals. There is, in my view, a chain of causation leading from the breaches of duty to the damage sought to be recovered. Whether the chain of causation must be held to be broken by the intervention of independent third parties, namely the vandals, depends, in my view, on whether or not that intervention was itself a reasonably foreseeable consequence of one or other of the breaches of duty relied on. In my judgment, in the present case , the intervention was reasonably foreseeable. It was, applying Lord Reids test, the very thing that was likely to happen if the serious damage to [the plaintiffs home] were left indefinitely unrepairedThere seems to me to be a clear connection between the damage done by the vandals and thieves to [the plaintiffs home] and the failure by the council to repair the damage done when [the house] collapsed. Common sense seems to me to justify imposing on the council liability for the consequences of its own failure For the reasons I have given, the damage caused to [the plaintiffs home]

by vandals and thieves was, in my judgment, not too remote Full text SCOTT J: This is an action in which the plaintiff, Denis Valentine Joseph Ward, is suing the defendant, the Cannock Chase District Council, for negligence. The council has admitted liability in negligence but difficult questions remain outstanding as to the quantum of damages which the council is, by reason of its admitted negligence, liable to pay. The parties have agreed that in due course the case should be referred to an official referee for quantum of damage to be determined. First, however, they desire that questions of principle should be answered regarding the basis on which damages should be calculated. The case comes, therefore, before me in order that I may answer those questions of principle. The evidence before me has covered the whole of the history that has given rise to Mr Wards claim. It is necessary for me to refer in some detail to that history. The relevance of the questions which I must answer will not be apparent until I have done so. I turn therefore to the history. The history [His Lordship reviewed the history of Mr Wards property and found the following facts. In March 1978 Mr Ward purchased a property known as 3 and 4 The Mossley at Rugeley, Staffordshire. Numbers 3 and 4 were the end houses in a row of two-storey cottages numbered 3 to 11. Numbers 3 and 4 had originally been separate dwellings but had been converted into one dwelling by Mr Wards predecessor in title. In 1981 Mr Ward built a single-storey extension onto the back of nos 3 and 4 so as to provide additional accommodation for his family, which consisted of himself, his wife and his eight children still living at home. In addition to nos 3 and 4 and their respective curtilages, he owned a small area of land, about 1 acres in all, lying at the back of the row of terraced cottages, which he used for a variety of purposes, including the keeping of livestock and as a scrap yard for dismantling vehicles. For these purposes a number of rough sheds and makeshift stables had been erected on the land. Various tools and pieces of machinery were to be found in

the sheds. The council intended to use the general area for industrial development and accordingly acquired a number of the cottages in the row. The cottages so acquired were at first occupied by council tenants but, as the properties fell vacant, they were not relet or maintained. Many of the properties left vacant suffered damage as the result of vandals and thieves, including the wholesale removal of tiles, bricks and timber. The council acquired 5 and 6 The Mossley, which adjoined no 4, and from 1974 they were left vacant. They were boarded up but vandals regularly broke in and caused serious damage. The council was aware of the vandalism and the damage. On 9 October 1982, as a result of the vandalism, the rear of no 5, adjoining no 4, collapsed, causing serious damage to the roof of no 4 and part of the gable wall between nos 5 and 4. A gaping hole appeared in the roof of no 4, which thus became open to the elements. The following day Mr Ward reported the damage to the council. However, the council took no immediate action to repair the damage and render Mr Wards property habitable. His Lordship described this failure as both inexplicable and inexcusable. On 12 October the councils building control officer, Mr Boulton, visited the site to inspect the damage and realised that immediate work was necessary to prevent further damage to no 4 from the weather, but repairs were still not put in hand. On 2 November Mr Wards solicitors wrote to the council, stating that the council was responsible for the damage and requesting that urgent temporary repairs be carried out to make no 4 weatherproof pending proper repairs. On 3 November the council replied that instructions have been given to the Councils Building Manager to put repairs in hand. His Lordship considered that letter to be highly significant and found that it constituted a representation by the council that it would see to the repairs. His Lordship held that Mr Ward was entitled to rely on that representation. When the council did nothing further, Mr Wards solicitors wrote to the council on 19 November pointing out that nothing had been done and that the weather was causing continuing deterioration to Mr Wards property. On 6 December Mr Boulton prepared a report for the councils management team in which he stated that nos 3 to 11 of the terrace consisted of sub-standard property which should be demolished. His Lordship considered that that statement reflected the councils policy at the time. On 7 December Mr Yates, the councils senior clerk of works, inspected Mr Wards property and reported that nos 3 and 4 should be demolished along with the remainder

of nos 5 and 6. On 9 December Mr Boulton inspected the premises and reported that no 4 was dangerous and should not be occupied because any additional loading, either wind or snow, could cause a collapse which might be fatal to the occupants, and that the Ward family should be evacuated immediately. Mr Boulton also stated that in his opinion the present state of the building is due almost entirely to the lack of maintenance by the owner and the collapse of the adjoining properties has had the effect of bringing the condition of numbers 3 and 4 to the [local authoritys] attention. The present condition of the properties is in no way due to the collapse of numbers 5 and 6, but this does not absolve the [local authority] of their responsibility to carry out such works as may be considered necessary to restore the weather resistance to the gable wall of numbers 3 and 4 which was previously afforded by number 5. His Lordship commented as follows on Mr Boultons report:] When I first read this passage I was staggered by the apparent effrontery of it. I waited for the evidence that might justify it. There was, in my view, none. Mr Boulton went so far as to say this: I would have formed the same opinion if nos 5 and 6 had still stood. In my view the collapse of nos 5 and 6 was of great benefit to Mr Ward. As I have said, Mr Boultons reason for condemning nos 3 and 4 was not supported by the experts. I am satisfied it was unfounded. [His Lordship noted that the specific defects in nos 3 and 4 referred to in the reports of Mr Boulton and Mr Yates, and from which they had concluded that nos 3 and 4 should be demolished, were not supported by the expert witnesses called by both sides. His Lordship found the following further facts. On 10 December the council wrote to Mr Ward stating that the council considered his property to be unsafe for continued occupation and that the council intended to seek the compulsory demolition of nos 3 and 4. On the same day the council wrote to the Staffordshire County Council pointing out that Mr Ward and his family of nine children were living in premises which the council considered to be unfit for human habitation. The county council thereupon commenced proceedings against Mr and Mrs Ward in the local magistrates court for a place of safety order removing the children from nos 3 and 4. The magistrates made the order sought and, because the alternative was for the children to be taken into care, Mr Ward agreed to move out of his property into a council house which contained only three bedrooms. For a

while Mr Ward tried to continue to live at nos 3 and 4 in order to care for the animals and deter vandals. Also on 10 December the council wrote to estate agents acting on behalf of Mr Ward indicating that the council was not prepared to make an offer to buy Mr Wards property. On 16 December Mr Wards solicitors sent a letter before action to the council calling on the council to repair the damage to nos 3 and 4 caused by the collapse of no 5, for appropriate works to be undertaken to no 5 to replace the support which the collapsed walls had provided to no 4 and for damages to be paid to Mr Ward in compensation for the inconvenience and expense suffered by Mr Ward and his family since October 1982, first, in having to live in the damaged property and, second, in having to move into the cramped accommodation of the council house. The council did not appear even to have acknowledged this letter. On 22 December Mr Ward commenced proceedings in the Walsall County Court alleging negligence by the council in failing to maintain no 5 by reason of which damage had been caused to nos 3 and 4. On the same day, on the application of Mr Ward, his Honour Judge Davison made a mandatory order in these terms: IT IS ORDERED that the defendants by themselves their servants, agents, workmen or otherwise do forthwith and within 14 days notwithstanding statutory holidays (1) make safe and weather proof the south eastern wall of number 4 The Mossley, Rugeley where it previously adjoined number 5 The Mossley aforesaid. (2) do repair and make good the roof on the south eastern gable of number 4 The Mossley aforesaid. (3) remove the rubble and debris adjacent to and exerting excessive pressure on the said gable wall likely to cause damage thereto and carry out such shoring of all above mentioned works to render the said number 4 The Mossley safe and habitable in the opinion of Mr Dennis Archer Gwilliam and as certified by him. (4) Liberty to apply. Mr Gwilliam was an architect and surveyor who had been instructed on Mr Wards behalf. His Lordship commented on Judge Davisons order as follows:] This was a very strong order indeed to have been made at an interlocutory stage and on the very day the county court proceedings had been commenced. And yet I am not in the least surprised that the county court judge thought it right to make this order. It was the councils default which had caused the serious damage to Mr Wards property on 9 October. The council had for two months been indicating that the

requisite repairs would soon be carried out. The council had, however, done nothing to repair the damage but had instead put into train legal proceedings to force the Ward family out of their home. The cost of repair would not have been excessive. The evidence before me made plain that by an expenditure of little more than 1,000 the council could have repaired the damage to 3 and 4 The Mossley and put the property in a state in which it could have continued for the foreseeable future to provide a satisfactory home for Mr and Mrs Ward and their children. I have no doubt that Judge Davison was, when he heard the story, as indignant at the disgraceful treatment by the council of the Ward family as I was when I heard it. He made the mandatory order I have read and was, in my view, well justified in doing so. [His Lordship found the following further facts. In view of the terms of the order, arrangements were made by the council for the work to be commenced the next day, ie 23 December 1982, but on the night of 22 December, while Mr Ward was at the council house celebrating his victory and watching a television programme on his struggle with the council, thieves and vandals broke into nos 3 and 4 and caused substantial additional damage to the property. The next day the councils officers claimed that the position had altered since the injunction had been obtained and that the council was not responsible for the damage done by the vandals. As a result the council workmen merely placed polythene sheeting over the roof as a temporary measure. His Lordship found that the vandal damage was seized on by Mr Boulton as a welcome reason why the repairs to no 4 ordered by Judge Davison did not have to be carried out. In the following months nos 3 and 4 rapidly deteriorated as the depradations of thieves and vandals continued, and by the end of 1983 the first floor had collapsed and the property was beyond repair. In addition items of machinery, parts of vehicles, a horse trailer, livestock, tack and bales of hay were stolen from the land at the back of nos 3 and 4. On 22 December the council served a dangerous structure notice on Mr Ward requiring him to remove the remaining roof timbers and all brickwork above the first floor within 28 days. On 4 January 1984 the council gave notice that it intended to apply for a possession order of the council house on the ground that Mr Wards rent was in arrear to the extent of some 1,037. On 26 January the council informed Mr Ward that unless he carried out the demolition the council would do so and reclaim

the cost from him. On 6 March, on an application made by Mr Ward for an injunction, the council undertook to carry out the demolition of nos 3 and 4 and pursuant to that undertaking nos 3 and 4 were demolished by the council in April 1984. His Lordship continued:] That is the sad history of 3 and 4 The Mossley, and I must turn to the questions regarding quantum of damage which have been put before me. Difficult questions of law are raised by these questions and I must be careful not to allow my sympathy for Mr Ward and my indignation at the treatment he has received at the hands of the council to distort my view of the relevant law. But I do not find it in the least necessary for me to conceal that indignation and I think justice in this case requires that I should not do so. I can understand that Mr Wards occupation of and way of life at 3 and 4 The Mossley may well have been, from a local authority point of view, anathema. Mr Ward has his origin in the Republic of Ireland. He was brought up on an orphanage farm in County Galway. He came to England when he was 18 years old and obtained employment in the mines at Cannock. Later he worked on the power station which was being erected at Cannock. After the power station had been completed he became redundant but obtained from time to time highly paid seasonal work on the maintenance of the power station. He married in 1961. His nine children range from 24 years of age to 4 years of age. Two are now married. He has not worked for the last three years but has been living on social security. He is a man with a hankering for the land but without the means to indulge it. His activities on The Mossley were of a nature that may have been appropriate to a smallholding in a rural area but were out of place in a residential semi-urban area. He makes no secret of his longheld desire that the council should buy his land at The Mossley at a price that would enable him to buy a smallholding elsewhere. He has, on the evidence I have heard, a nodding acquaintance with the criminal law. He has been convicted in the magistrates courts for failure to comply with enforcement notices served in connection with his activities on his land at The Mossley. In answer to a question in cross-examination, Have you any convictions for any offence? his unusual, and revealing, answer was,I dont know. He is currently using his Mossley land for the purpose of dismantling vehicles. There is no planning permission for such a use. The council has received over the years complaints from local residents about Mr Wards goats. It has received complaints arising out of

the burning of rubbish on Mr Wards land. But none of these many respects in which Mr Wards occupation of 3 and 4 The Mossley may have been unsatisfactory to the council justifies or even, to my mind, explains its conduct towards him since 9 October 1982, when its own neglect caused serious damage to his property. The council could cheaply and speedily have repaired the damage. It did not do so and no senior officer of the council has come forward to explain why not. A recommendation for the demolition of the property was made by Mr Boulton and accepted by the councils management team before Mr Boulton or anyone else on the councils behalf had conducted a proper investigation of the structural state of the property. Mr Boulton and Mr Yates then formed and expressed the view that the property was structurally unsound for reasons which were not substantiated by the experts who gave evidence before me. Acting on these, as I conclude, erroneous views, the council, instead of repairing the consequences of its negligence, took steps to get the Ward family out of their home. It succeeded in doing so by encouraging the county council to start care proceedings in respect of the infant children of the family. The councils intentions suffered a setback when Judge Davison granted a mandatory interlocutory order that the requisite repairs be done. The councils preparedness to commence work on 23 December shows, clearly enough, the insubstantial nature of the excuses given during November for its delay in commencing the work of repair. But this setback was only momentary because Mr Boulton, when the damage done to the roof by the vandals on 22 December was seen, refused to accept that that damage should be repaired by the council. So no repairs were carried out, nos 3 and 4 became unoccupied and damage by vandals and thieves continued up to the point at which the property was no longer repairable and had to be demolished. In the mean time Mr Ward was powerless. He had not the money to have the property repaired at his own expense. In any event, the council had initially undertaken that it would do so. He could not stay on site during the cold winter nights to protect the property from the vandals and thieves. And, the final irony, his insurers have declined liability for the damage done by the vandals and thieves on the ground that, under a term of the policy, the insurers are not at risk for damage which took place after the property had been unoccupied for more than a period of, I think, one month. In consequence of these events, Mr Ward, in the place

of the untidy, highly anomalous but to him satisfying life that he and his family had been living on his smallholding at The Mossley, is now living in grossly overcrowded conditions in a three-bedroom terraced house on a council estate in the middle of Rugeley. At no stage in the correspondence or in the course of the hearing before me has any apology or expression of regret been offered to Mr Ward on behalf of the council for its part in depriving him of his home. On the contrary, the council had to be restrained by court order from evicting him from his council flat and had to be forced by court proceedings to refrain from charging him for knocking down his house, and, finally, I was told by Mr Boulton, the senior council employee to give evidence before me, that the council had done Mr Ward a favour in neglecting no 5 so that it collapsed and damaged Mr Wards home. Behaviour of this sort by a local authority to a member of the public ought not, in my judgment, to be allowed to pass without adverse comment. The questions I must now turn to the questions which I am asked. They fall into four groups. First, there are questions concerning remoteness of damage. Question 1 is in these terms: (a) Whether the damage to 3 and 4 The Mossley (including weather and other consequential damage) sustained by the Plaintiff by reason of vandalism and theft after 9th October 1982 should be treated as part of the damage suffered as a result of the collapse of 5 and 6 The Mossley as aforesaid. (b) Whether the loss suffered by the Plaintiff in respect of chattels of the Plaintiff damaged or stolen by vandals and thieves in or from 3 and 4 The Mossley and the Plaintiffs adjoining land should be treated as part of the damage suffered as a result of the collapse of 5 and 6 The Mossley as aforesaid. Second, I am asked on what basis damage should be assessed. Mr Ward is seeking damages to cover the cost of rebuilding 3 and 4 The Mossley and reinstating the dwelling (including the rear extension) as near the

original as current building regulations will allow. It is accepted by counsel for Mr Ward that this basis of assessment can only be justified if Mr Ward satisfies me of his genuine intention to rebuild and is legally entitled to rebuild. This latter condition requires that Mr Ward obtain either planning permission or a determination that no planning permission is required. I am asked, therefore, under para (1)(a) of question 2 whether, on the assumption that Mr Ward is legally entitled to rebuild, the cost of rebuilding is the proper yardstick for assessment of damages. Alternatively, if nos 3 and 4 cannot legally be rebuilt, Mr Ward contends that he should receive such damages as after deduction of the market value of his land at The Mossley would allow him to purchase a reasonably equivalent dwelling and smallholding elsewhere. I am asked under para (1)(b) of question 2 whether he is entitled to damages on that basis. Paragraphs (2) and (3) of question 2 ask, as alternatives, whether Mr Ward is entitled to damages (2) on the basis that the Plaintiff is entitled to the diminution in the value of 3 and 4 The Mossley by reason of the damage suffered as a result of the collapse of 5 and 6 The Mossley and, if so, at what stage such diminution should be measured; OR (3) on the basis that the Plaintiff is entitled to the cost of repairing the damage admitted in paragraph 6 of the re-re-amended Defence and, if so, at what date such cost should be measured. The damage admitted in para 6 of the rereamended defence is the original damage caused by the collapse of no 5 on 9 October 1982. Third, I am asked whether Mr Wards damages should include items in respect of (1) loss of use of Mr Wards land adjoining 3 and 4 The Mossley, (2) discomfort, anxiety and distress caused to Mr Ward and (3) the matters set out in para 10(1) and (2) of the reamended statement of claim. Fourth, I am asked this question: Whether any part of the damage which the Plaintiff claims to have

suffered as a result of the collapse of 5 and 6 The Mossley as aforesaid in fact was caused not only by the said collapse of 5 and 6 The Mossley but also by: (a) the condition of 3 and 4 The Mossley prior to 9 October 1982 and/or (b) the Plaintiffs own failure to maintain or repair 3 and 4 The Mossley and/or (c) structural alterations to 3 and 4 The Mossley carried out by the Plaintiff or his predecessor in title and, if so, in each case whether and to what extent and on what principle the damages recoverable ought to be reduced in respect thereof. Question 4 raises issues of fact and it is, I think, convenient for me to start with these. Damage was caused to 3 and 4 The Mossley by the collapse of no 5. Damage was also caused to 3 and 4 The Mossley by the actions of third parties, vandals or thieves. But was the damage, whether that which happened on 9 October 1982 or that which subsequently befell the property, attributable in any material degree to any of the three items specified in the fourth question? I will take them in turn. The plaintiffs failure to maintain or repair [His Lordship then considered the facts relating to the allegation that the damage to nos 3 and 4 was caused by Mr Wards failure to maintain or repair his property, and held as follows:] In my judgment, the evidence of disrepair of 3 and 4 The Mossley immediately before 9 October 1982 does not lead to any legitimate inference that that disrepair was a material factor in the decline of the property to its state in 1984 when it had to be demolished. Structural alterations to 3 and 4 The Mossley and the condition of nos 3 and 4 prior to October 1982 [His Lordship then considered the facts relating to the allegation that the damage to nos 3 and 4 was caused by structural alterations previously carried out on nos 3 and 4, and refered to the condition of nos 3 and 4 prior to the collapse of no 5 on 9 October 1982. His Lordship held as follows:] My answer to question 4, therefore, is that no part of the damage which the plaintiff claims to have suffered as a result of the collapse of 5 and 6 The Mossley was caused by the condition of 3 and 4

The Mossley prior to 9 October 1982, or by Mr Wards failure to maintain or repair 3 and 4 The Mossley or by any previous structural alteration to 3 and 4 The Mossley. Remoteness of damage I now turn to question 1. The question raises the remoteness of damage questions. For the council it is said that the acts of vandals and thieves in damaging nos 3 and 4 The Mossley and in damaging or stealing Mr Wards chattels are intervening acts of independent third parties for which the council cannot be held liable. For Mr Ward it is said that these acts were reasonably foreseeable consequences of the councils breach of duty. In my opinion it is necessary to start by identifying the breach or breaches of duty from which the damage is said to flow. Negligence has been admitted by the council in these terms: It is admitted that on and before 9th October 1982 the defendant ought to have known that numbers 5 and 6 The Mossley were structurally unsafe and likely to collapse and that if and when such collapse did occur the same would be likely to cause and/or lead to damage to No. 4. There is also this admission in para 3 of the reamended defence: It is further admitted that number 4 The Mossley derived some support from number 5 and that such support was to a limited extent taken away by the defendants omissions. Mr Wards allegations of breach of duty by the council are not however confined to its breach of duty in failing to keep 5 and 6 The Mossley in a safe condition. By para 8 of the reamended statement of claim it is pleaded: Since 9th October 1982 the Defendants have taken no or no proper and effective steps to repair the above-mentioned damage to the Property and have thereby created further nuisance and allowed it to continue. I take this sentence to be an allegation of a breach of duty by the council.

The councils answer, in para 10 of the reamended defence, is as follows: It is admitted that no effective steps have been taken to repair the abovementioned damage to the Property and that further damage has been caused to the Property by vandals. Save as aforesaid paragraph 8 of the Re-amended Statement of Claim is not admitted. It is therefore an issue between the parties whether the councils failure to repair the damage caused on 9 October 1982 was a breach of duty owed to Mr Ward. In my judgment it was. The council, by its letter of 3 November 1982, represented that it was about to do the repairs. It thereby assumed the responsibility for doing the repairs. But it did not do them. No explanation for this has emerged from the evidence I have heard. The council memoranda suggest that the presence of the main electricity cable was a hindrance to putting in hand the repairs. But I have heard no oral evidence to suggest why this was so. And the council was, apparently, prepared, on 23 December, to carry out the repairs notwithstanding the presence of the main electricity cable. The reason why, in the event, the council did not on 23 December do so had nothing to do with the cable. It was, in my judgment, the duty of the council to carry out the repairs within a reasonable time of accepting the responsibility for doing so. The responsibility was accepted on 3 November 1982 and a reasonable time for doing the repairs had expired long before 22 December when the mandatory order was made by his Honour Judge Davison in Walsall County Court. Finally, there is an allegation of breach of duty in para 9C of the reamended statement of claim. It reads thus: The Plaintiff will say that the Defendants failed to comply with the said Order of the Walsall County Court dated 22nd December 1982 and thereby committed further continuing breaches of duty owed to the Plaintiff and nuisance resulting in further damage to the Property as aforesaid. The reamended defence pleads in answer as follows: 13. Paragraph 9A of the Re-amended Statement of Claim is admitted. On the 23rd December 1982 the Plaintiffs architect agreed with the

Defendants representatives that the only suitable remedial work to the property was to place a sheet of polythene over the gable wall and to shore up the front wall and the Plaintiffs solicitors requested the Defendant not to carry out the work specified in the injunction but to cover the exposed area of roof and gable. The Defendant did the work agreed with the Plaintiffs architect on [then the date is left blank]. 14. In the premises paragraph 9C of the Re-amended Statement of Claim is denied. Alternatively, the Plaintiff has consented to any failure to comply and is estopped from relying thereon. It is a fact that the order of 22 December 1982 was not complied with. The council contends, however, that Mr Wards representatives agreed that the council need not do so and that Mr Ward was estopped from relying on its non-compliance. I have already set out in findings of fact regarding the meeting of 23 December 1982. It is the case that Mr Wards representatives, Mr Bentley and Mr Gwilliam, agreed that temporary protection should be afforded the property. But they agreed to this because the council, by Mr Boulton, had contended that it was not liable for repairing the vandal damage and that the order required the council to repair only the 9 October 1982 damage. Mr Bentley and Mr Gwilliam agreed that the 9 October 1982 damage could not sensibly be repaired unless the vandal damage were made good as well and, since the council was refusing to repair the vandal damage, agreed to the temporary protection. In my judgment, the council did not rely on any representation by Mr Bentley or Mr Gwilliam in deciding on 23 December 1982 not to go ahead with the repairs. Mr Boulton had, in my view, decided independently of Mr Bentley and Mr Gwilliam that the council would not repair the vandal damage. Mr Boulton told me in evidence that if Mr Bentley and Mr Gwilliam had not agreed that the council need not go ahead and repair the damage to the roof the council would have done so. As I have said, I do not accept this evidence and I do not accept that the council acted on any representation made by Mr Bentley or Mr Gwilliam in deciding not to proceed with the repairs. The pleaded estoppel, in my judgment, fails. The terms of the order of 22 December 1982 required the council, inter

alia, to repair and make good the roof of no 4. The order was not limited to repairing and making good the damage to the roof done on 9 October 1982. If the council thought that it was not responsible for the damage done by the vandals on the night of 22 December, it should have applied to the county court for the discharge of or variation of the order. It did not do so. It simply failed to obey the order. In my judgment the allegation of breach of duty contained in para 9C of the reamended statement of claim succeeds. There are, therefore, three breaches of duty in this case: first, the failure of the council to keep 5 and 6 The Mossley in a safe condition; second, the failure of the council to repair the damage caused on 9 October 1982 within a reasonable time of accepting responsibility for doing so; third, the failure of the council to comply with the order of 22 December 1982. It is not alleged in the reamended statement of claim that the action taken by the council to force the Ward family out of occupation of 3 and 4 The Mossley was a breach of duty to Mr Ward. The only breaches of duty relied on are those I have mentioned. (a) The damage to 3 and 4 The Mossley It is convenient to summarise the sequence of events. On 9 October 1982 the councils negligence allowed 5 and 6 The Mossley to collapse and damage 3 and 4 The Mossley. Between 9 October and 22 December 1982 nothing was done to repair the damage. The blame for this lies on the council. On 9 December the council, through Mr Boulton, concluded that 3 and 4 The Mossley was structurally unsafe, ought to be demolished and was not worth repairing. This opinion was, in my judgment, unfounded. However, acting on this unfounded opinion, the council initiated steps to oblige the Ward family to vacate 3 and 4 The Mossley. During the night of 22 December 1982 while the property was unoccupied serious damage was caused to the roof by vandals. The effect of this damage was that the whole roof instead of merely a part needed to be retiled. The council, by Mr Boulton, refused to accept responsibility for these additional repairs

and, in effect, declined to repair the damage caused on 9 October 1982. I am satisfied that had the Ward family or some of them remained in occupation of 3 and 4 The Mossley the damage caused by vandals on the night of 22 December would not have happened. Thereafter until the end of 1983 the condition of 3 and 4 The Mossley steadily deteriorated, mainly on account of the activities of vandals and thieves, until, in April 1984, it was demolished. By this sequence of events, the easily repairable damage of 9 October 1982 led by April 1984 to the reduction of 3 and 4 The Mossley to a heap of rubble. None of this would have happened but for the original damage caused by the negligence of the council. None of the damage by vandals and thieves would have happened if the original damage had been promptly repaired. None of the damage by vandals and thieves would have happened if the property had remained occupied. The property would have remained occupied had it not been for the view formed by Mr Boulton on 9 December 1982 and the steps taken by the council as a result. The reason why Mr Boulton visited the property on 9 December 1982 was to view the damage done on 9 October 1982. Both counsel for Mr Ward and counsel for the council have made submissions as to the principles of remoteness of damage that I should apply to the facts of this case. Counsel for Mr Ward submitted that the test of remoteness of damage was one of reasonable foreseeability. He submitted that it was reasonably foreseeable that, if the council failed to keep 5 and 6 The Mossley in a safe condition, damage might result to 3 and 4 The Mossley, that it was reasonably foreseeable that damage thus caused might require 3 and 4 The Mossley to be vacated while the repairs were being done, and that it was reasonably foreseeable, from the known history of The Mossley, that vandals would move in and cause additional damage to any unoccupied property. Counsel for the council, on the other hand, submitted that, where damage by third parties was in point, the question whether the damage was recoverable was not to be answered by applying a test of reasonable foreseeability but depended on judicial policy. And he submitted that the Court of Appeal in Lamb v Camden London Borough [1981] 2 All ER

408, [1981] QB 625 had settled as a matter of judicial policy that damage caused to unoccupied property by vandals could not be recovered from the person whose negligence had rendered the property unoccupied. Alternatively, if reasonable foreseeability were the correct test, he submitted that where acts of third parties were concerned a very high degree of foreseeability was necessary. In support of their respective submissions counsel referred to three cases: Home Office v Dorset Yacht Co Ltd [1970] 2 All ER 294, [1970] AC 1004, Lamb v Camden London Borough [1981] 2 All ER 408, [1981] QB 625, and P Perl (Exporters) Ltd v Camden London BC [1983] 3 All ER 161, [1984] QB 342. Home Office v Dorset Yacht Co concerned some Borstal boys who escaped from custody and damaged the plaintiffs yacht. The plaintiff sued the Home Office in negligence alleging failure to exercise sufficient control or supervision over the boys. The question whether on the facts pleaded the Home Office owned any duty of care to the plaintiff was directed to be tried as a preliminary issue. The House of Lords held that a duty of care was owed. Lord Reid referred to and rejected the argument that damage caused by third parties would necessarily be irrecoverable. He said ([1970] 2 All ER 294 at 298, [1970] AC 1004 at 1027): Even so it is said that the respondents must fail because there is a general principle that no person can be responsible for the acts of another who is not his servant or acting on his behalf. But here the ground of liability is not responsibility for the acts of the escaping trainees it is liability for damage caused by the carelessness of these officers in the knowledge that their carelessness would probably result in the trainees causing damage of this kind. So the question is really one of remoteness of damage. And I must consider to what extent the law regards the acts of another person as breaking the chain of causation between the defendants carelessness and the damage to the plaintiff. There is an obvious difference between a case where all the links between the carelessness and the damage are inanimate so that, looking back after the event, it can be seen that the damage was in fact the inevitable result of the careless act or omission, and a case where one of the links is some human action. In the former case the damage was in fact caused by the careless conduct, however

unforeseeable it may have been at the time that anything like this would happen. At one time the law was that unforeseeability was no defence (Re Polemis and Furness, Whithy & Co Ltd [1921] 3 KB 560, [1921] All ER Rep 40). But the law now is that there is no liability unless the damage was of a kind which was foreseeable (Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound) [1961] 1 All ER 404, [1961] AC 388). On the other hand, if human action (other than an instinctive reaction) is one of the links in the chain, it cannot be said that, looking back, the damage was the inevitable result of the careless conduct. No one in practice accepts the possible philosophic view that everything that happens was predetermined. Yet it has never been the law that the intervention of human action always prevents the ultimate damage from being regarded as having been caused by the original carelessness. The convenient phrase novus actus interveniens denotes those cases where such action is regarded as breaking the chain and preventing the damage from being held to be caused by the careless conduct. But every day there are many cases where, although one of the connecting links is deliberate human action, the law has no difficulty in holding that the defendants conduct caused the plaintiff loss. There are some propositions that are beyond question in connection with this class of case. One is that human action does not per se sever the connected sequence of acts. The mere fact that human action intervenes does not prevent the sufferer from saying that damages for injury due to that human action, as one of the elements in the sequence, is recoverable from the original wrongdoer. (per Lord Wright in Lord v Pacific Steam Navigation Co Ltd, The Oropesa [1943] 1 All ER 211 at 214, [1943] P 32 at 37). What then is the dividing line? Is it foreseeability or is it such a degree of probability as warrants the conclusion that the intervening human conduct was the natural and probable result of what preceded it? There is a world of difference between the two Lord Reid then referred to some of the authorities and continued ([1970] 2 All ER 294 at 300, [1970] AC 1004 at 1030): These cases show that, where human action forms one of the links between the original wrongdoing of the defendant and the loss suffered by the plaintiff, that action must at least have been something very likely to happen if it is not to be regarded as novus actus interveniens breaking

the chain of causation. I do not think that a mere foreseeable possibility is or should be sufficient, for then the intervening human action can more properly be regarded as a new cause than as a consequence of the original wrongdoing. But if the intervening action was likely to happen I do not think it can matter whether that action was innocent or tortious or criminal. Unfortunately tortious or criminal action by a third party is often the very kind of thing which is likely to happen as a result of the wrongful or careless act of the defendant. And in the present case, on the facts which we must assume at this stage, I think that the taking of a boat by the escaping trainees and their unskilful navigation leading to damage to another vessel were the very kind of thing that these borstal officers ought to have seen to be likely. As was pointed out by Lord Denning MR in Lamb v Camden London Borough [1981] 2 All ER 408 at 412, [1981] QB 625 at 634, the House of Lords was not in Home Office v Dorset Yacht Co Ltd dealing with a remoteness of damage question. The preliminary issue was whether or not a duty of care was owed. Lord Reids dicta were, therefore, obiter. They are, however, powerful expressions of principle applicable to the question raised in the present case. Lamb v Camden London Borough concerned a house in Hampstead. A water main in an adjoining road burst and the escaping water severely damaged the house. The council admitted liability in nuisance. The damage to the house was such that the house had to be vacated. It was unoccupied for some months while arrangements were being made by the plaintiff for repairs to be carried out. While it was unoccupied squatters entered and did considerable damage. The question for the court was whether the damage caused by the squatters was recoverable from the council. Both the official referee and the Court of Appeal held that the damage was too remote. In the Court of Appeal, Lord Denning MR cited the passages from Lord Reids speech in the Dorset Yacht case to which I have referred but disagreed with Lord Reids statement of the law. He disagreed with the view that if a consequence of a negligent act was very likely to happen it necessarily followed that the person who had committed the negligent act would be liable for that consequence (see [1981] 2 All ER 408 at 412

413, [1981] QB 625 at 634635). Lord Denning MR expressed the view that reasonable foreseeability as a test of remoteness extended liability too widely and concluded that at the end of the day the limitation of the extent of the liability of a defendant for his wrongful act was a question of policy for the judge. He said ([1981] 2 All ER 408 at 415, [1981] QB 625 at 638): it seems to me, that, if Mrs Lamb was insured against damage to the house and theft, the insurers should pay the loss. If she was not insured, that is her misfortune. Taking all these policy matters into account, I think the council are not liable for the acts of these squatters. Although, however, Lord Denning MR expressed his decision as one of policy, he reached his decision as to what that policy should be by considering the relative responsibility of the plaintiff and the council for the damage done by squatters. It is pertinent to wonder what Lord Denning MRs view on policy would have been if, as here, the council had accepted responsibility for doing the repairs and had required and forced Mrs Lamb to vacate the property and to leave it unoccupied. Oliver LJ, on the other hand, accepted reasonable foreseeability as the appropriate test of remoteness of damage and explained Lord Reids dicta in a passage that I think I should read in full. He said ([1981] 2 All ER 408 at 418, [1981] QB 625 at 642): As it seems to me, all that Lord Reid was saying was this, that, where as a matter of fact the consequence which the court is considering is one which results from, or would not have occurred but for, the intervention of some independent human agency over which the tortfeasor has no control it has to approach the problem of what could be reasonably foreseen by the tortfeasor, and thus of the damage for which he is responsible, with particular care. The immediate cause is known: it is the independent human agency; and one has therefore to ask: on what basis can the act of that person be attributed back to the tortfeasor? It may be because the tortfeasor is responsible for his actions or because the third party act which has precipitated the damage is the very thing that the tortfeasor is employed to prevent. But what is the position in the absence of some such consideration? Few things are less certainly predictable than

human behaviour, and if one is asked whether in any given situation a human being may behave idiotically, irrationally or even criminally the answer must always be that that is a possibility, for every society has its proportion of idiots and criminals. It cannot be said that you cannot foresee the possibility that people will do stupid or criminal acts, because people are constantly doing stupid or criminal acts. But the question is not what is foreseeable merely as a possibility but what would the reasonable man actually foresee if he thought about it, and all that Lord Reid seems to me to be saying is that the hypothetical reasonable man in the position of the tortfeasor cannot be said to foresee the behaviour of another person unless that behaviour is such as would, viewed objectively, be very likely to occur. Thus, for instance, if by my negligent driving I damage another motorists car, I suppose that theoretically I could foresee that, whilst he leaves it by the roadside to go and telephone his garage, some ill-intentioned passer-by may jack it up and remove the wheels. But I cannot think that it could be said that, merely because I have created the circumstances in which such a theft might become possible, I ought reasonably to foresee that it would happen. (Oliver LJs emphasis.) Oliver LJ then examined the official referees findings of fact and concluded that the official referee had, in effect, found that the squatter damage could not have been reasonably foreseen. He added this comment ([1981] 2 All ER 408 at 419, [1981] QB 625 at 643): I confess that I find it inconceivable that the reasonable man, wielding his pick in the road in 1973, could be said reasonably to foresee that his puncturing of a water main would fill the plaintiffs house with uninvited guests in 1974. The key sentence in this judgment is, in my view, the sentence where Oliver LJ said: the question is not what is foreseeable merely as a possibility but what would the reasonable man actually foresee if he thought about it And the it in this sentence must be a reference to the consequences of the negligent act or omission in question.

Watkins LJ, too, discussed the implications of Lord Reids dicta in the Dorset Yacht case. He took the view that Lord Reid was not intending to depart from the Wagon Mound test [see The Wagon Mound (No 2), Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd ([1966] 2 All ER 709, [1967] 1 AC 617] save in cases involving intervening human action to which he would apply a rather stricter than usual test by placing acts which are not likely to occur within the realm of remoteness. Watkins LJ said ([1981] 2 All ER 408 at 421, [1981] QB 625 at 646 647): it is also obvious that Lord Reid would regard some kinds of intervening acts done by third parties as too remote even though they could reasonably be foreseen as likely or quite likely to occur I do not think that words such as, among others, possibility, likely or quite likely assist in the application of the test of reasonable foreseeability. If the crisply stated test which emanates from The Wagon Mound (No 2) [1966] 2 All ER 709, [1967] 1 AC 617 is to be festooned with additional words supposedly there for the purpose of amplification or qualification, an understandable application of it will become impossible. In my view the Wagon Mound test should always be applied without any of the gloss which is from time to time being applied to it. But when so applied it cannot in all circumstances in which it arises conclude consideration of the question of remoteness, although in the vast majority of cases it will be adequate for this purpose. In other cases, the present one being an example of these in my opinion, further consideration is necessary, always providing, of course, a plaintiff survives the test of reasonable foreseeability. This is because the very features of an event or act for which damages are claimed themselves suggest that the event or act is not on any practical view of it remotely in any way connected with the original act of negligence. These features will include such matters as the nature of the event or act, the time it occurred, the place where it occurred, the identity of the perpetrator and his intentions, and responsibility, if any, for taking measures to avoid the occurrence and matters of public policy To return to the present case, I have the

instinctive feeling that the squatters damage is too remote. I could not possibly come to any other conclusion, although on the primary facts I, too, would regard that damage or something like it as reasonably foreseeable in these times. Although the three judgments in Lamb v Camden London Borough give different reasons for coming to the same conclusion, a common ratio is, to my mind, identifiable at least in the judgments of Oliver and Watkins LJJ. Both start with the reasonable foreseeability test as expressed in The Wagon Mound (No 2). Both, where damage caused by independent third parties is concerned, require something more than merely the foreseeable possibility of the occurrence of the damage. Oliver LJ would ask what the reasonable man, if he thought about the consequences of the negligent act or omission, would actually foresee. Unless a reasonable man would actually foresee the intervening acts in question, Oliver LJ would hold the damage too remote. Watkins LJ would exclude the damage if, on a practical view, it did not seem sufficiently connected with the negligent act or omission. Lord Reid would ask whether the intervening acts were the very kind of thing likely to happen. I do not think there is any real difference between Lord Reids and Oliver LJs formulations. Each, in my view, expresses in different language the same essential requirements. There is, however, a difference between their approach and that of Watkins LJ. Both Lord Reid and Oliver LJ would examine the nature of the damage in question from the anterior moment when the negligent act or omission took place. From that standpoint they would ask whether the damage would actually be foreseen by a reasonable man, or would be regarded as the very kind of thing likely to happen. Watkins LJs approach, however, would start with the damage under review and look back to the negligent act or omission in order to find some sufficient connection. In most cases, this difference of approach would I think make no difference to the result. The third case to which I was referred, P Perl (Exporters) Ltd v Camden London BC [1983] 3 All ER 161, [1984] QB 342 was, like Home Office v Dorset Yacht Co Ltd [1970] 2 All ER 294, [1970] AC 1004, a case concerned with the existence of a duty of care rather than a question of remoteness of damage. The plaintiffs and the defendants owned adjoining

premises. The defendants failed to keep their premises secure. During a weekend villains entered the defendants premises, knocked a hole through the party wall, entered the plaintiffs premises and stole property worth 12,000-odd. The plaintiffs sued in negligence for the damage caused by this theft. The Court of Appeal held that the defendants owed no duty to prevent damage being caused to the plaintiffs by third party thieves. The Dorset Yacht case and Lamb v Camden London Borough were discussed but the judgments were directed to the duty of care question and do not throw any further light on the correct approach to the remoteness of damage questions raised by the present case. In applying the principles expressed in these authorities to the facts of the present case, the starting point must be to ask whether the damage caused to 3 and 4 The Mossley by the vandals and thieves was a reasonably foreseeable consequence of one or more of the breaches of duty committed by the council. It was, in my view, reasonably foreseeable that, if 5 and 6 The Mossley were to collapse, serious damage might be caused to 3 and 4 The Mossley, and in particular to no 4. That, in the event, is what happened. It was also, I think, reasonably foreseeable that, if serious damage were to be caused to nos 3 and 4, the dwelling might have to be vacated until repairs were done. Given the large hole in the roof of nos 3 and 4 caused by the collapse of nos 5 and 6, it would not have been in the least surprising if the Ward family had felt unable to continue in occupation until, at least, the hole had been covered up. Further, any failure to carry out the necessary repairs with expedition would make it not merely foreseeable that the property would become unoccupied for a while but would make it a matter of surprise if that did not happen. It was, therefore, in my judgment, a reasonably foreseeable consequence of the breaches of duty committed by the council that 3 and 4 The Mossley would spend some time unoccupied. The actual manner in which the property became unoccupied was not, by any stretch of the imagination, foreseeable. No one could have foreseen that Mr Boulton, the council and the county council would have taken the

steps they did in order to force the Ward family out of occupation. But it was, none the less, in my view, a highly likely possibility that 3 and 4 The Mossley, if caused serious damage by the collapse of no 5 and if the damage was not promptly repaired, would have to be vacated. It was also, in my judgment, reasonably foreseeable that, if nos 3 and 4 were unoccupied, vandals and thieves might cause them damage. Given the record of vandalism and thievery at The Mossley it was, to my mind, virtually certain that, if nos 3 and 4 remained unoccupied for any length of time, they would receive the attention of vandals and thieves. This case is, in my view, different on its facts from Lamb v Camden London Borough in two important respects. First, the likelihood of unoccupied property receiving the attention of vandals was very much higher at The Mossley in Rugeley than in Hampstead. In Hampstead it might have been foreseen as a possibility. At The Mossley it ought to have been foreseen as highly likely. Second, in Lamb v Camden London Borough the standpoint from which the foreseeability of the vandal damage was judged, at least by Oliver LJ, was the negligent act. What damage would a reasonable man actually foresee as likely to be caused to Mrs Lambs house by the burst water main? That was the question which Oliver LJ thought should be asked. The answer did not include vandal damage. But the corresponding question in the present case has to be asked not simply from the standpoint of the councils original negligent omission to keep nos 5 and 6 in a safe condition but from the standpoint of the councils continued failure to repair the damage to 3 and 4 The Mossley caused by the collapse of nos 5 and 6. If the reasonable man were asked what damage to 3 and 4 The Mossley he would foresee if there were an indefinite failure to repair the serious damage which had been caused on 9 October 1982, his answer would, in my view, be that the property would have to be vacated and that further damage would be caused by vandals. Counsel for the council submitted that Lamb v Camden London Borough was binding authority for the proposition that, if the effect of negligence is to cause a property to become unoccupied and if while in that state it is damaged by vandals, the damage is too remote to be recoverable. I do not agree that the case is authority for a general proposition of that character. It is true that Lord Denning MR expressed the opinion that the risk of

vandal damage ought to be insured against by the plaintiff and that, as a matter of policy, vandal damage ought to be held too remote and irrecoverable. But that opinion was not adopted by Oliver or Watkins LJJ. In my judgment, the question whether vandal damage is or is not too remote must be decided by reference to the facts of the particular case in which the question arises and by reference to the particular breach or breaches of duty which are alleged to have led to the vandal damage. In the present case, if the breaches of duty committed by the council had not happened, 3 and 4 The Mossley would not have become unoccupied and would not have been damaged by the vandals. There is, in my view, a chain of causation leading from the breaches of duty to the damage sought to be recovered. Whether the chain of causation must be held to be broken by the intervention of independent third parties, namely the vandals, depends, in my view, on whether or not that intervention was itself a reasonably foreseeable consequence of one or other of the breaches of duty relied on. In my judgment, in the present case, the intervention was reasonably foreseeable. It was, applying Lord Reids test,the very thing that was likely to happen if the serious damage to nos 3 and 4 were left indefinitely unrepaired. The approach recommended by Watkins LJ leads, in my view, to the same conclusion. There seems to me to be a clear connection between the damage done by the vandals and thieves to 3 and 4 The Mossley and the failure by the council to repair the damage done when nos 5 and 6 collapsed. Common sense seems to me to justify imposing on the council liability for the consequences of its own failure. I have already observed that the intervening acts of the council whereby the Ward family were forced to vacate 3 and 4 The Mossley and to leave it unoccupied were not reasonably foreseeable. But counsel for the council conceded that the council would be liable for the consequences of its own intervening acts even if those intervening acts could not themselves be regarded as reasonably foreseeable. This was, in my judgment, a very proper concession and such as one would expect of a responsible local authority. In my judgment the concession was also in accordance with the law. It would not, in my view, have been open to the council to have argued that

its own intervening acts, which would not, in fact, have happened had it not been for the original negligence, were unforeseeable and had broken the chain of causation between the breaches of duty and the vandal damage. For the reasons I have given, the damage caused to 3 and 4 The Mossley by vandals and thieves was, in my judgment, not too remote. I would, therefore, answer question 1(a) in the affirmative. For the avoidance of doubt, however, I would add that the council is not, in my view, liable for the damage caused to the rear extension by reason of its use since 1983 as a stable. Mr Wards eccentric decision to turn the rear extension to that use was, in my judgment, an unforeseeable intervening act that broke the chain of causation. The contrary has not been argued by counsel for Mr Ward. (b) Damage to the chattels I would accept that the vandal damage to or theft of Mr Wards chattels kept in the various sheds or standing on his land at the rear of 3 and 4 The Mossley was caused, in a causa sine qua non sense, by the councils breaches of duty. But the vandal damage to the chattels was not, in my view, a reasonably foreseeable consequence of any of the breaches of duty. The councils original failure to keep nos 5 and 6 in a safe condition was negligent and a breach of duty to Mr Ward because of the risk of damage to the fabric of nos 3 and 4 if no 5 were to collapse. Damage to the fabric of nos 3 and 4 is what happened when no 5 collapsed. The councils failure to repair the damage after it had accepted responsibility for doing so carried with it the obvious risk that the damage might get worse if the property were not promptly repaired. In the event, the damage did get worse. The councils failure to repair in accordance with the court order of 22 December 1982 carried with it the same risk. But damage by vandals to the chattels in the land around and at the rear of 3 and 4 The Mossley was damage of a quite different type. The councils duty of care to keep nos 5 and 6 in a safe condition was not attributable to the need to guard against that kind of damage. That kind of damage would not have been in the contemplation of the council when it accepted responsibility for doing the repairs as likely to follow from its failure to

carry them out. That kind of damage would not have been in the mind of Mr Ward when applying to the county court for the mandatory order, nor in the mind of the county court judge when granting the order. Council for Mr Ward argued that, once nos 3 and 4 had become unoccupied, vandal damage to the chattels was bound to occur, just as vandal damage to the fabric of the building was bound to occur. I have accepted this argument so far as the building is concerned. I am doubtful about it so far as the chattels are concerned. The natural expectation would be, in my opinion, that if, as happened, nos 3 and 4 were to become unoccupied Mr Ward would take steps to secure the chattels against vandal damage. He, after all, must have been better informed than anyone of the risk of vandal damage at The Mossley. But, on the evidence I have heard, he took no steps at all to secure his chattels against damage or theft by vandals or thieves. It is difficult to see what he could have done about the building itself. Conversely, I find it difficult to accept that he could not have taken steps to safeguard his chattels. It may be that these considerations go really to mitigation of damage. It is pleaded in para 17 of the reamended defence that the Plaintiff has failed to mitigate his damage by not taking effective steps to safeguard his property from vandals and thieves. No submissions, however, were made to me by either counsel on this issue. Counsel for the council did not, in cross-examination of Mr Ward, put to him that there were steps he could and should have taken to safeguard his chattels. It may be, therefore, that the reasons I have given for doubting whether vandal damage to the chattels was a foreseeable consequence of nos 3 and 4 becoming unoccupied are not open to me. But, even if the vandal damage to the chattels were properly to be regarded as a foreseeable consequence of the property becoming unoccupied, it would remain, in my view, too remote from the breaches of duty committed by the council to be recoverable as damages for those breaches. In my judgment, recovery of this type of damage would have required Mr Ward to plead and establish that the steps taken by the council to get him and his family out of occupation represented a breach of duty. He might have succeeded in tying the vandal damage to the chattels to a breach of duty of that character. I am not, however, satisfied that the damage was a reasonably foreseeable consequence of any of the councils breaches of duty sued on in the reamended statement of claim. It was not, in my opinion, the very sort of

thing that was likely to happen as a result of those breaches of duty. I do not think the reasonable man, if asked what consequences he would foresee as likely to follow if the repairs to nos 3 and 4 were indefinitely delayed, would include vandal damage to these chattels. I do not, adopting Watkins LJs approach, find a sufficient connection between the breaches of duty on the part of the council and the theft of and damage to chattels of which Mr Ward complains. I would, therefore, answer question 1(b) in the negative. Reinstatement damages or diminution in value damages Question 2 asks on what basis damages should be assessed. The main question is whether Mr Ward is entitled by way of damages to such a sum as will enable him to rebuild 3 and 4 The Mossley or whether he must be content with damages measured by the diminution in the value of 3 and 4 The Mossley. The difference between the two methods of assessment will be considerable. On the basis of the evidence of Mr Miller, a chartered surveyor called on behalf of Mr Ward, the cost of rebuilding 3 and 4 The Mossley will be in the region of 50,000. The councils evidence suggested 30,000. The diminution in the market value of 3 and 4 The Mossley attributable, on the basis of my answer to question 1(a), to the councils breaches of duty, is put by Mr Smith, Mr Wards valuer, at 18,500 and by Mr Phillips, the councils valuer, at less than 11,500. Counsel for Mr Ward put his case thus: 3 and 4 The Mossley were, he said, uniquely suited to the needs of Mr Ward and his family. Besides providing accommodation, which any dwelling with comparable rooms could match, they were surrounded by about an acre and a half of land. This area of land enabled Mr Ward to keep his livestock and indulge, up to a point, his hankering for an agricultural smallholding. It also provided space for his childrens recreation. It enabled them to be usefully employed in assisting Mr Ward in his agricultural or other activities. His children were thereby provided, first, with an amenity that might keep them from delinquency in an area apparently prone to it and, second, with some quasi-occupation in an area of high unemployment. If Mr Ward were to receive diminution of value damages, he could never

afford to rebuild nos 3 and 4. If he received diminution of value damages and then sold his Mossley estate, the total of damages and the proceeds of sale would be hopelessly inadequate to enable him to purchase elsewhere anything remotely similar to the accommodation and land he had enjoyed at The Mossley. So, submitted counsel for Mr Ward, 3 and 4 The Mossley were uniquely valuable to Mr Ward. Damages, he submitted, should place Mr Ward, so far as money can do it, in the position he was in before he was injured by the councils negligence. That could only be done, it was submitted, by allowing him in damages the sum necessary to reinstate 3 and 4 The Mossley. Counsel for the council contended that, in law, the diminution in the market value of The Mossley was the correct measure of the damages to which Mr Ward was entitled by reason of the councils breaches of duty. I must examine the issue of law, but, first, I should, I think, deal with the issues of fact raised by this part of the case. The council does not accept that 3 and 4 The Mossley have the unique value to Mr Ward to which he has testified. It was suggested that his professed affection for the property and need for its reinstatement were bred of a desire to obtain as high an award of damages as possible and were not genuinely held feelings. It was pointed out by counsel for the council that for some years prior to and after 9 October 1982 Mr Ward had been trying to persuade the council to purchase his land at The Mossley. That is true, but Mr Wards desire and willingness to sell were a desire and willingness to sell at an inflated price. He was asking for 140,000. To encourage the council to agree this price he represented that his holdings extended to some three acres. I have no doubt but that if that price, or anything approaching it, had been agreed by the council, Mr Ward would have sold with alacrity. He would, I think, have then expected to be able to buy a substitute dwelling with some land attached elsewhere in the country or perhaps in Ireland. His willingness and wish to sell at the price of his choice do not seem to me to be inconsistent with his case that 3 and 4 The Mossley with its acre and a half of land were of unique value to him. If, as is the case, he cannot get the inflated price of his choice, he wants, I am satisfied, to continue to live at 3 and 4 The

Mossley and have the advantage of its acre and a half of land. In addition, counsel for the council drew my attention to letters to Mr Ward from Barclays Bank, to whom Mr Ward had mortgaged his Mossley land in order to secure certain borrowings from the bank. In these letters, which both precede and follow 9 October 1982, the bank was calling for a reduction in Mr Wards borrowings and threatening a possible realisation of its security. I cannot, however, take these letters as evidence that the bank is likely, by realising its security, to frustrate any rebuilding of nos 3 and 4, or that if nos 3 and 4 were rebuilt the bank would be likely, by realising its security, to frustrate Mr Wards desire to enjoy it. Both these eventualities are possible but no evidence of the banks intentions has been given. Having heard Mr Ward, I am satisfied that 3 and 4 The Mossley, as they were immediately before 9 October 1982, and the surrounding land owned by Mr Ward, together constituted a landholding of special and particular value to Mr Ward. The needs of a family of the size of his for living space, both inside and outside the dwelling, are obvious enough. The history of this case has made it clear that the council is not likely to cater for those needs. Those needs were catered for at 3 and 4 The Mossley. Moreover, I am satisfied that Mr Ward has, by inclination and perhaps as a result of his upbringing, a particular desire to own a piece of land and to keep some horses and other livestock. This he can do at The Mossley. He is not in a position in which he can expect to do so anywhere else. On those findings of fact, I now turn to the issue of law. Is Mr Ward entitled to charge the council with the cost of reinstatement or must he be content with diminution of value damages? In Hollebone v Midhurst and Fernhurst Builders Ltd [1968] 1 Lloyds Rep 38 his Honour Judge Norman Richards QC allowed reinstatement damages in a case where the plaintiffs house had been damaged by fire due to the negligence of the defendants servants. Cost of reinstatement was 19,000-odd. The diminution in the value of the property caused by the fire was 14,850-odd. The judge decided in favour of the former measure because he considered that the plaintiff was acting reasonably in

having the damage made good and that restitutio in integrum could only be achieved by awarding that measure. In Harbutts Plasticine Ltd v Wayne Tank and Pump Co Ltd [1970] 1 All ER 225, [1970] 1 QB 447, a case of negligent breach of contract whereby a factory was destroyed, the Court of Appeal allowed reinstatement damages on the footing that if no substitute is available and no reasonable alternative can be provided, the plaintiff should be entitled to the cost of repair. (See [1970] 1 All ER 225 at 240, [1970] 1 QB 447 at 473 per Widgery LJ.) In C R Taylor (Wholesale) Ltd v Hepworths Ltd [1977] 2 All ER 784, [1977] 1 WLR 659 the cost of reinstatement was refused and diminution in value damages were awarded on the ground that the plaintiff had no intention of carrying out the repairs. A billiard hall had been destroyed by fire. But the hall stood on a site of potential redevelopment value and the plaintiffs had been intending in any event to clear the site for development purposes. May J said ([1977] 2 All ER 784 at 791792, [1977] 1 WLR 659 at 667): The various decided cases on each side of the line to which my attention has been drawn, and to some of which I have referred in this judgment, reflect in my opinion merely the application in them of two basic principles of law to the facts of those various cases. These two basic principles are, first, that whenever damages are to be awarded against a tortfeasor or against a man who had broken a contract, then those damages shall be such as will, so far as money can, put the plaintiff in the same position as he would have been had the tort or breach of contract not occurred. But secondly, the damages to be awarded are to be reasonable, reasonable that is as between the plaintiff on the one hand and the defendant on the other. Finally, I should refer to Munnelly v Calcon Ltd [1978] IR 387, a decision of the Supreme Court of Ireland. The plaintiff was an auctioneer who had carried on business from his house in Dublin. His house was irreparably damaged by the defendants, negligence. He satisfied the trial judge that he had the genuine intention of rebuilding a new house on the

site of this old house. The cost of the rebuilding would have been 65,000. The market value of the house was 35,000. It was established that for 35,000 the plaintiff could purchase elsewhere in the City of Dublin a house which would be comparable to his old house and that the move would not materially affect the plaintiffs business. The trial judge awarded 65,000 damages. The defendants appealed. In the Supreme Court Henchy J made this comment on reinstatement damages (at 399): I do not consider that reinstatement damages, which may vastly exceed damages based on diminished value, are to be awarded as a prima facie right or, even if they are, that the plaintiffs intention as to reinstatement should be the determining factor. I do not think the authorities establish that there is a prima facie right to this measure of damages in any given case. In my view, the particular measure of damages allowed should be objectively chosen by the court as being that which is best calculated, in all the circumstances of the particular case, to put the plaintiff fairly and reasonably in the position in which he was before the damage occurred, so far as a pecuniary award can do so. He then referred to C R Taylor (Wholesale) Ltd v Hepworths Ltd and cited the passage from the judgment of May J that I have read. He than continued (at 400): I accept those two principles as being basic to, although not necessarily exhaustive of, the concept of restitutio in integrum on which the law of damages rests in cases such as this. It is in the application of those principles that difficulty may arise, for a court, in endeavouring to award a sum which will be both compensatory and reasonable, will be called on to give consideration, with emphasis varying from case to case, to matters such as the nature of the property, the plaintiffs relation to it, the nature of the wrongful act causing the damage, the conduct of the parties subsequent to the wrongful act, and the pecuniary, economic or other relevant implications or consequences of reinstatement damages as compared with diminished-value damages. The reported cases, therefore, require to be viewed primarily as exemplifications of the application to special facts of the two principles to which I have referred. In the present

case I consider that the correct measure of damages is the diminished value of the building. After reviewing the facts of the case Henchy J concluded (at 401) that 35,000 damages, the diminution in value measure will be both compensatory and reasonable, whereas reinstatement damages of 65,000 would unjustifiably profit the plaintiff and unfairly penalise the defendants for their negligence. Kenny J agreed. He said (at 407) The true principle is that the owner of a building is entitled to the diminution in value between the building as it was before the wrong and after it, unless he establishes that he intends to or has reasonably rebuilt the structure damaged or destroyed and that his is an exceptional case in which justice requires that he should be paid the cost of restoration In my opinion, the owner is entitled to the diminution in value between the building as it was before the wrong and after it, unless he establishes that he intends to spend the restoration costs (if he is awarded these) on rebuilding and that his is an exceptional case which justifies departure from the test of diminution in value. Parke J agreed with both judgments. I would respectfully accept and adopt these statements of principle. In the present case I am satisfied that Mr Ward has the intention of rebuilding if he is able to do so. Given his family circumstances and chosen way of life, it is, in my view, reasonable for him to want to do so. I take into account in reaching that conclusion that the council represented that it would repair the property but then failed to do so, that it was ordered by the county court judge to repair the property but did not do so, that it intentionally and with a view to the eventual demolition of the property brought about the state of affairs in which the property became unoccupied and at the mercy of vandals and thieves and that all these factors led to the eventual result, namely that the need for moderate repairs had become a need for complete rebuilding. With all these

circumstances in mind I regard this is an exceptional case in which justice requires that Mr Ward should be paid the cost of reinstatement. There is, however, an important qualification. The cost of rebuilding cannot be the correct measure of damages unless Mr Ward is legally entitled to rebuild. Counsel were not in agreement whether or not Mr Ward needs planning permission in order to rebuild. If he does need planning permission they were not in agreement whether or not he would get planning permission. These planning permission uncertainties must be resolved before Mr Wards entitlement to damages on a reinstatement basis can finally be settled. Paragraph 1(a) of question 2 is in these terms: Whether damages should be assessed: (1)(a)(if the Plaintiff obtains planning permission for the purpose or alternatively a determination that the same is not required), on the basis that he is entitled to the cost (measured at the date of the inquiry) of re-building 3 and 4 The Mossley and reinstating the same and the rear extension thereto with all fixtures and fittings formerly therein to the form the same were in immediately before 9th October 1982, subject only to such modifications as are necessary to comply with current building regulations. I answer that question in the affirmative, subject to the qualification I have already made regarding the extension and its use as a stable. Paragraph 1(b) of question 2 is in these terms: Whether damages should be assessed (b) if the Plaintiff cannot obtain such planning permission or determination), on the basis that he is entitled to receive as damages a sum equal to the reasonable cost (measured at the date of the inquiry) of purchasing a dwellinghouse and land providing reasonably equivalent accommodation and a reasonably equivalent area of land to that previously afforded by 3 and 4 The Mossley and the Plaintiffs adjoining land less the market value with vacant possession as at the date of the inquiry of 3 and 4 The Mossley and the Plaintiffs adjoining land. Counsel for Mr Ward contended that if Mr Ward was not entitled for

planning reasons to rebuild 3 and 4 The Mossley the measure of damages should be the cost to him of purchasing elsewhere a substitute land holding equivalent to his land holding at The Mossley. This is, in my view, an impossible contention. Where is this substitute land holding to be? In Rugeley? In Staffordshire? In England? In Ireland? How would the equivalence of the accommodation and land be measured? In my judgment, if, for legal reasons, the rebuilding of 3 and 4 The Mossley is not possible, then Mr Ward must be content with damages measured by the diminution in value of 3 and 4 The Mossley. I therefore answer para 1(b) of question 2 in the negative. As to para 2 of question 2, if the rebuilding of 3 and 4 The Mossley is not possible, Mr Ward is, in my judgment, entitled by way of damages to the difference in value between 3 and 4 The Mossley as they were before they were damaged on 9 October 1982, and 3 and 4 The Mossley in the state in which they were after the remaining structure of 3 and 4 had been demolished in April 1984. I am asked at what date the diminution in value should be measured. As a general principle, where property has been damaged, whether tortiously or in breach of contract, and the damages are to be measured by reference to the value of the property, the value should be taken at the time the tort or breach of contract is committed (see McGregor on Damages (14th edn, 1980) para 482). But in the present case, where the breaches of duty have had continuing consequences, leading eventually to the demolition of the property in April 1984, that general principle does not seem to me to make much sense. In my judgment, the diminution in value should be measured at the date in April 1984 on which the demolition took place. The first question should be what value 3 and 4 The Mossley would have had immediately before the demolition if the property had been then in the condition in which it was on 9 October 1982, when no 5 collapsed. The second question should be what value nos 3 and 4 had immediately after the demolition. In answering the second question any diminution in value attributable to damage to the rear extension by its use as a stable should be ignored. The question asked in para 3 of question 2 does not, having regard to the

view I take of the vandal damage, arise. It would have been relevant only if I had held the vandal damage to be too remote. Question 3 This question has three limbs. (1) Loss of use of the plaintiffs land adjoining 3 and 4 The Mossley Mr Ward contends that by reason of his forced departure from 3 and 4 The Mossley his ability to use his land at The Mossley has been adversely affected. The various money-making activities that he pursued on this land have, it is said, either become impossible to pursue or become less profitable. He claims to be entitled to damages on this account. In my judgment, Mr Ward is not entitled to damages on this account. My reasons are the same as those I gave in answer to question 1(b) in concluding that Mr Ward was not entitled in this action to recover damages for the vandal damage to his chattels. A loss by Mr Ward of the use of his land at The Mossley was not, in my judgment, a reasonably foreseeable consequence of the failure by the council to maintain 5 The Mossley. Nor was it a reasonably foreseeable consequence of the councils failure to repair 3 and 4 The Mossley after the damage caused by the collapse of no 5 had happened. Nor do I think it is a reasonably foreseeable consequence of the move by Mr Ward and his family from 3 and 4 The Mossley to 13 William Morris Court, the council house. But even if I am wrong on this last point I still would not regard this item of alleged loss as recoverable as damages for the councils breaches of duty. Its recoverability would, in my judgment, require Mr Ward to plead and establish a breach of duty by the council in taking the steps it took to ensure his and his familys removal from 3 and 4 The Mossley. (2) Discomfort, anxiety and distress I have held that Mr Ward is, if 3 and 4 The Mossley can legally be rebuilt, entitled to damages measured by the cost of reinstatement. Until the property is rebuilt Mr Ward and his family will, it seems, have to continue living in 13 William Morris Court. The accommodation provided by 13 William Morris Court is grossly inadequate for a family of the size of Mr Wards family. Mr Parks, the councils deputy director of housing, accepted in cross-examination that

the occupation of 13 William Morris Court by Mr Ward and his family represented gross overcrowding 13 William Morris Court, ought, he said, to be regarded as temporary accommodation only. It was, in my judgment, foreseeable that, if 5 The Mossley collapsed and damaged nos 3 and 4, the Ward family might have to move out of nos 3 and 4 for a short period while the necessary repairs were being done. The fact that the Ward familys sojourn in 13 William Morris Court has been far longer than could ever have been foreseen is attributable to the councils failure to repair the damage promptly. In the circumstances Mr Ward is, in my judgment, entitled to be compensated in damages for the discomfort he and his family have experienced, first, in living for the period between 9 October 1982 and 14 December 1982 in a dwelling with a large hole in the roof and, second, in living in grossly overcrowded conditions since 14 December 1982. Damages should be assessed so as to cover the period up to the date on which the rebuilding of 3 and 4 The Mossley can reasonably be expected to be completed. If it should transpire that 3 and 4 The Mossley cannot legally be rebuilt, the damages under this head should, in my judgment, be assessed so as to cover the period up to the date on which the diminution of value damages are assessed. The discomfort in respect of which I have held Mr Ward to be entitled to damages must have caused him some anxiety and distress. But I do not think that Mr Ward is entitled to damages on account of any anxiety or distress additional to that which would naturally be associated with the discomfort with which I have dealt. His additional anxiety or distress was not, in my view, caused by the councils breaches of duty. It was caused by the steps taken by the council to oblige Mr Ward and his family to leave 3 and 4 The Mossley. It was not a type of damage foreseeable as a consequence of the original negligence or the consequent failure to repair. (3) Paragraph 10(1) and (2) of the reamended statement of claim Paragraph 10(1) of the reamended statement of claim specifies as an item of special damage the rent paid or payable by Mr Ward in respect of 13 William Morris Court from 14 December 1982. Paragraph 10(2) of the reamended statement of claim specifies as special damage three items of transport costs: first, additional costs of transporting the children to

school; second, costs of travel from 13 William Morris Court to 3 and 4 The Mossley; and, third, costs of the removal of the family to 13 William Morris Court. In my judgment Mr Ward is entitled to recover as special damage the extra costs of having to live at 13 William Morris Court. My reasons are the same as those expressed in regard to Mr Wards entitlement to damages for discomfort. I will not repeat them. Accordingly, all the items specified in sub-paras (1) and (2) of para 10 are, in my judgment, items in respect of which Mr Ward is entitled to damages. There are, however, two points to be made: first, if 3 and 4 The Mossley can be rebuilt, Mr Wards entitlement to be reimbursed in respect of those items of special damage will continue until the date on which the rebuilding of nos 3 and 4 can reasonably be expected to be complete. The cost of removal back to nos 3 and 4 would also be claimable. If, however, 3 and 4 The Mossley cannot be rebuilt, Mr Wards entitlement in respect of these items will, in my judgment, continue until the diminution of value damages have been assessed. Second, in respect of these items I am deciding nothing as to quantum. I do not know whether the figures specified in the pleadings are justified. Moreover, there may be offsets, such as rates on 3 and 4 The Mossley which Mr Ward would have had to pay but has not in the event had to pay which should be deducted. Quantification of the damages to be paid in respect of these items is a matter for subsequent assessment. Assessment of damages cannot possibly proceed until it is known whether or not 3 and 4 The Mossley can legally be rebuilt. Counsel have agreed that, if I should come to the conclusions to which I have come, I should adjourn further consideration of the damages issue until after the questions concerning planning permission for the rebuilding have been resolved. I agree with that suggestion and will hear counsel as to the form of the order. Finally, I should record that counsel for Mr Ward offered, on Mr Wards behalf, an undertaking to the court that, if rebuilding of 3 and 4 The Mossley were permissible and if damages on the reinstatement basis were recovered, the damages would be applied in the rebuilding. I do not, however, think it right to accept that undertaking. If Mr Ward satisfies me, as he has done, that he intends to rebuild 3 and 4 The

Mossley and that his intention is a reasonable one in all the circumstances, he is, in my judgment, entitled in law to damages calculated on the reinstatement basis. Once I, or the adjudicator on the assessment of damages, have awarded the damages to which he is entitled, the damages are his. An undertaking is not, in my view, appropriate. Having given judgment on the liability for and the measure of damages the court heard further argument and evidence in relation to a supplemental question concerning 2 The Mossley. SCOTT J: At the conclusion of my judgment counsel for Mr Ward, having previously informed counsel for the council of his intention to do so, put to me a supplemental question under question 2. Question 2, it will be recalled, dealt with the measure of damages to which Mr Ward ought to be held entitled in respect of the damage done to 3 and 4 The Mossley. Counsel for Mr Ward has provided me with a draft of the proposed supplemental question. It reads like this: OR (aa) the Plaintiff cannot obtain such planning permission or determination but instead obtains planning permission or a determination that the same is not required for the construction or reconstruction or without an extension of 2 The Mossley on the same basis as is set out under sub-paragraph 1(a) above and, if so, whether with or without any limitation in amount by reference to the cost measured at the date of the inquiry of such construction or reconstruction. I have read the draft as it appears. I suspect there may be something the matter with the wording but the general sense is clear to me. The supplemental question concerns 2 The Mossley. I believe I am right in saying that I have not mentioned 2 The Mossley in the course of my judgment. Number 2 is one of the Mossley cottages; it is not part of the terrace of which nos 3 and 4 formed the end cottages. It stands somewhat to the south of nos 3 and 4, somewhat to the south of the terrace, and is the western cottage of a small terrace of three cottages. The other two

cottages are numbered, somewhat strangely, nos 25 and 26. 2 The Mossley was purchased by Mr Ward in November 1982. Mr Ward purchased no 2 because his daughter was about to get married and he had in mind to provide somewhere for her and her intended husband to live. He wanted to keep his family tribe near at home. A certain amount of evidence concerning no 2 was given in the course of the hearing. It seems that no 2 was occupied until 1983. Since 1983 (the exact date I have not in my mind and I do not think it is material) it has been unoccupied. There was evidence of some damage to no 2 by vandals, as one would expect from the history of the The Mossley, but it does not seem to have suffered in quite the drastic way that nos 3 and 4 and nos 5 and 6 suffered at the hands of the vandals and thieves. However, there has undoubtedly been some vandal damage to no 2. In addition, there was evidence of a crack somewhere in no 2 which may have the consequence of rendering it structurally unsafe. No expert evidence regarding that has been led. It did not seem to either side material at the time. Mr Ward still owns 2 The Mossley. The curtilage of no 2 has a short boundary with the curtilage of nos 3 and 4. It is suggested by counsel for Mr Ward that if it turns out that Mr Ward is not legally entitled to rebuild nos 3 and 4, that is to say if planning permission is needed but cannot be obtained, it might be possible for him to provide a substitute dwelling for himself and his family based on no 2. The accommodation in no 2 is, in its present state, very limited. So what would be needed would be, first, restoration of the structure of no 2 and, second, an addition to no 2 of sufficient accommodation to permit it to serve as a home for Mr Ward and his large family. Counsel for Mr Ward submits that it ought to be open to Mr Ward to recover as damages the cost of reinstatement of nos 3 and 4 on the footing that, if nos 3 and 4 cannot for planning reasons be reinstated, nevertheless the damages, or so much as may be necessary for the purpose, can be applied in restoring and extending no 2. He asks, therefore, by the supplemental question that I have read whether, on the hypothesis that planning permission prevents the rebuilding of nos 3 and 4 Mr Ward can claim damages measured by the cost of reinstatement of nos 3 and 4 but to be applied instead to the restoration and extension of no 2.

Counsel for the council has submitted that that is not a permissible measure of damage. He contends that there are two measures of damage available only: one is the cost of reinstatement of the damaged premises; the other is the diminution in value of the damaged premises. The authorities to which I have already referred seem to me to establish that the primary measure of damage is the diminution in value measure. If the circumstances are appropriate, it is established that the cost of reinstatement can represent the correct measure of damages. Counsel for Mr Ward relies on the principle that damages are intended to place the injured party, so far as money can do it, in the position in which he was before he was injured. He referred to a passage in Munnelly v Calcon Ltd [1978] IR 387 at 399 where Henchy J said: the particular measure of damages allowed should be objectively chosen by the court as being that which is best calculated in all the circumstances of the particular case, to put the plaintiff fairly and reasonably in the position in which he was before the damage occurred, so far as a pecuniary award can do so. Counsel for Mr Ward referred me also to a passage from Dodd Properties (Kent) Ltd v Canterbury City Council [1980] 1 All ER 928 at 933934, [1980] 1 WLR 433 at 451, a decision of the Court of Appeal. Megaw LJ in that case cited as the broad and fundamental principle as to damages a dictum from Lord Blackburns speech in Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 at 39, where Lord Blackburn had said that the measure of damages is that sum of money which will put the party who has been injured or, who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation. It has to be observed that Henchy J, in the Munnelly case, made the statement of principle I have cited in the context of a choice between, on the one hand, diminution of value damages and, on the other hand, cost of reinstatement damages. Megaw LJ, in the Dodd Properties case, was

citing Lord Blackburn on the principle of damages for the purpose of deciding at what time the damages appropriate to be awarded should be assessed. Both cases are, on their facts, consistent with the submission of counsel for the council that there is no alternative in a case where reinstatement is not possible to the award of diminution of value damages. If the case is not one where reinstatement is possible and is reasonable, diminution of value damages is, counsel submitted, inevitable. I have already expressed the opinion, based on the evidence I heard, that 3 and 4 The Mossley and Mr Wards surrounding land had a unique value to him and his family. Reinstatement of nos 3 and 4 would be the means by which Mr Ward would be restoring to himself and his family the amenity of living at 3 and 4 The Mossley, the amenity of which he has been deprived by breaches of duty of the council. Counsel for the council has submitted, and I accept, that there is no authority establishing any further exception to the general rule that diminution of value damages is the primary basis to be applied where property has been damaged by negligence or breach of duty. I accept that on the facts of this case 2 The Mossley and its accompanying land were not acquired by Mr Ward until November 1982. None the less the position before me is that his estate, so to speak, at The Mossley includes no 2 and its accompanying land. Restoration of his position at The Mossley, if the rebuilding of nos 3 and 4 is not possible, may perhaps be able to be achieved by the restoration and extension of no 2. If it should turn out that the rebuilding of nos 3 and 4 is for planning permission reasons not legally possible but that the restoration and extension of no 2 can be effected, I can see no injustice in holding that the sum of money to which Mr Ward would have been entitled as damages in respect of the cost of reinstating nos 3 and 4, or so much of that sum as may be necessary, can be recovered as damages in order to enable him to provide an alternative residence for himself and his family based on no 2. There are certain conditions which would have to be satisfied before an award of damages on that basis could be made. First, it would have to be the case that the restoration and extension of no 2 was itself legally possible. That almost certainly will require some element of planning permission. In addition, in my view, Mr Ward would have to put before the

adjudicator who deals with the assessment of damages a reasonable proposal for the restoration and extension of no 2, reasonable, that is to say, in the sense that the proposed works would provide an adequate substitute home for himself and his family in The Mossley. If, however, those conditions can be satisfied, then I think that justice in this case requires that the damages which Mr Ward would have recovered, had he been legally entitled to rebuild nos 3 and 4, should be available to him to carry out those works to no 2. If the estimate of the cost of the restoration and extension of no 2 should exceed the cost of reinstating nos 3 and 4, I do not think that Mr Ward would be entitled to claim the excess. If that cost were less than the cost of reinstating nos 3 and 4, then in my view Mr Ward could only recover by way of damages the cost of the restoration and extension of no 2. Mr Ward was called to give supplemental evidence before me this afternoon. I am satisfied, having heard him, that he has a genuine intention, if means can be found, to return to live with his family at The Mossley. One of the possible means is the extension and restoration of no 2 and I am satisfied that if that is possible and the rebuilding of nos 3 and 4 is not, that is what he proposes to do. Accordingly, I answer the supplemental question in that sense. I express my answer in that rather general way because I am not entirely clear that the wording of the supplemental question as it stands is appropriate, but I hope I have in this short additional judgment made it clear what my answer would be to the question when properly drafted out.