• In the case of Holbeck Hall Hotel v Scarborough BC 2001 QB 836 it was held that an occupier who omits to remove a source of danger is only liable for the extent of damage he could have reasonably foreseen.

Facts of the Case

  • Scarborough Borough Council (SBC), owners of lower land, appealed against a decision that it was liable to H, the owners of a hotel, for the damage caused by a landslip
  • SBC’S engineers had taken some limited remedial action and had been aware of the danger of further landslide but had not anticipated a slip of such proportions.
  • SBC contended that it was not under a duty to support the neighbouring land.

Issues in Holbeck Hall Hotel v Scarborough BC 2001 QB 836

  • Could it be held that SBC were able to reasonably foresee the danger to the servient land?

Held by Court of Appeal

  • Appeal allowed

Stuart-Smith LJ

  • Held that a measured duty of care was owed by a servient landowner who had actual or presumed knowledge of danger of loss of support.
  • The duty was not limited to escapes form the servient to the dominant land and included no feasance.
  • That duty is reliant on foreseeability.
  • SBC did not foresee the magnitude of risk and would not have done so without expert advice derived from geological surveys.
  • The duty may extend only to warning the owner of the dominate land of the foresee risk and did not necessarily require expensive preventative works.
  • “Taking the first approach the question is, what was the extent of the damage to the Claimants’ land which Scarborough ought to have foreseen, (without any further investigation) if they did not carry out effective remedial work of the type they had previously done and which GEN recommended? It is not possible to be precise about this. But in my judgment it is not necessary to send the matter back to the trial judge to determine; I doubt whether any more evidence could be available than that which is before us. The 1986 slip at its nearest point to the Claimants’ land was some 35 metres (about 100 metres from the hotel). Progressive slips, if unchecked, might have been expected eventually to extend some way into the hotel grounds, affecting the rose garden and some part of the lawn. The value of such land would represent the damage to the Claimants. In theory this should be subject to a deduction for a contribution from the Claimants towards the cost of any remedial works. But in practice it does not seem to me to be realistic to attribute any value to this part of Holbeck’s land because in fact, albeit unknown to the parties, this whole section of the grounds was liable to subside because of the underlying defect.” [55]
  • “I think it could well be argued that on the facts of this case Scarborough were under a duty to warn the Claimants of such risk as they did appreciate and share with them the information contained in the GEN report. This is on the assumption that the Claimants had not realised that there was any risk to them from continuing unchecked erosion. This could well be within the limited scope of the measured duty of care. But that is not how the case was pleaded or argued. Moreover, even if a breach of such a duty could be established, there would be formidable problems of causation, since the Claimants would have to establish on balance of probability, that if they had this information they would themselves or in conjunction with Scarborough have undertaken the further geological investigation necessary to discover the extent of the problem and then either themselves or in conjunction with Scarborough have undertaken the extremely expensive remedial works which I have referred to in paragraph 53.” [58]

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