Coope v Ward  EWCA Civ 30
The Court of Appeal has held that property owners owed each other a duty of care in circumstances where a garden dividing wall had collapsed onto adjoining land. The wall was owned by one of the parties (W), and supported over nine feet of earth on their side. After a heavy snowfall, it collapsed onto the properties to the other side. A claim was brought by the owner of one of those properties (C).
The Court of Appeal found that the collapse of the wall was not caused by anything that either party did or should have done. W had not been responsible for the additional loading strain, nor had they known about or had any reason to suspect that the wall might collapse. Consequently they were not liable for the collapse. They were neither the creators of nor knowing contributors to any nuisance and could not be legally responsible for the actions of their predecessors in title, who had significantly increased the depth of soil on their side of the wall. Nor was C liable for the collapse, since any easement of support which might have been acquired had been extinguished when the depth of soil was increased.
However, the consequences of the collapse gave rise to “measured duties of care” on both sides, since there was a risk of further collapse, which was now known to both parties. There was no practical difference between characterising this as a duty arising in negligence, and one arising in nuisance. It was the lack of support from C’s land which gave rise to this risk, and therefore the duty on C, and this was so even though the court had held that there was no easement of support. Equally, had there been an easement of support, that would not preclude the existence of a duty on either side.
A “measured duty of care” means that what is required to remove or reduce the risk is what is reasonable to expect in the individual party’s circumstances. The engineering solution here was not obvious, but C would at the very least, be obliged to allow W access to their land to enable them to carry out any work that might be necessary to shore up W’s land or protect it from collapsing further. Although there was a duty on both sides, it was not just and reasonable to impose on C a liability to contribute to the cost of the works, when the cause of the collapse was the overloading of the wall on W’s side, and the solution to the problem was as yet unknown and unspecified.
The case will be of particular interest to corporate occupier and investor clients, as it underlines that where support is enjoyed and needed, it is important to ensure that there is an easement of support. The extinguishment of any easement as a result of the increased loading is an important practical lesson, too.