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Vol 25 No 2 Feb/March 2020

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Law of Property Damage

ISBN13: 9781526504326
To be Published: October 2020
Publisher: Bloomsbury Professional
Country of Publication: UK
Format: Hardback
Price: £215.00

Over the last few years there has been an emerging specialism for property damage. Property damage frequently leads to losses other than the cost of repairing the damage, giving rise to disputes about the extent to which those losses can be recovered from insurers. Insurance companies have increased the number of claims they defend in court and these cases have become progressively more technical, hence the number of cases now heard by the TCC (Technology and Construction Court).

These cases range from multi-national construction and utility projects to domestic property matters such as floods, fires, explosions and subsidence. Practitioners are advising across the spectrum of clients from the largest insured loss arising from the London Riots in 2011, to losses for owner managed companies where making a recovery from insurers was essential to the survival of their business.

The claims commonly raise insurance questions, frequently in the construction or product liability context, and they often involve claims against construction and other professionals. Practitioners need expertise across fields of insurance, construction, product liability and professional liability.

Property damage claims typically require the involvement of expert witnesses in relation to liability such as forensic scientists, as well as experts on the standards to be expected of professionals and contractors. The claims also usually require the involvement of experts to deal with quantum (forensic accountants to assess financial losses, quantity surveyors and valuers to assess the cause and extent of property damage losses).

2 TG on Property Damage is a comprehensive practitioners' text covering the full spectrum of issues and case law such as:

  • Goodlife Foods Ltd v Hall Fire Protection Ltd [2017] EWHC 767 (TCC)
  • Wheeldon Brothers Waste Ltd v Millennium Insurance Co Ltd [2017] EWHC 218 TCC
  • Great Lakes Reinsurance (UK) SE v Western Trading Limited [2016] EWCA 1003
  • WH Newson Holding Limited v IMI Plc & Delta Limited [2016] EWCA Civ 773

Insurance Law, Property Law
Part I: General Principles
1. What is property damage
2. How is it distinguished from economic loss
a. Pure economic loss (e.g. damage to the thing itself versus other damage)
b. Liability of Public Authorities?
3. General principles of nuisance and negligence in outline – causes of action in outline form
a. Negligence in outline
b. The importance of delegable and non-delegable duties in tort
c. Principles and evolving nature of nuisance
4. Breach of Contract
5. Breach of Statutory Duty
6. Insurance
a. these are the policies that you will come across
b. these are the things to look out for
7. Liability of sub-contractors
8. Liability of independent contractors
9. Limitation

Part II: Specific
1. Fire
a. Distinction between fire claims and extra hazardous activities claims that involve hot works.
2. Extra hazardous activities
3. Escapes of Water
a. Natural Escapes of Water
b. Non-natural escapes of water
c. Common law
d. Strict liability
4. Subsidence
a. Tree roots
b. Lack of support and rights of support/ Rights of Support
i. Easements of support (Blog post case on easements -> law of nuisance and negligence)
ii. coal mining and abandoned tunnels
iii. mining in general (this will include tin in Cornwall)
5. Party Walls
a. what happens when you do work to a party wall and damage is caused to the main property.
6. Gas
7. Electricity
8. Explosives
9. Pollution (poisonous waste (see in C&L outline for this)
10. Damage in the course of works
a. Berni Inns scenarios
b. Vicarious liability
c. Insurance (relevant policies and more in depth discussion from the general principles bit)
d. Property damage suffered by client/
e. Property damage suffered by third party

Part III: Quatum
1. Cost of repairs vs diminution in value
2. Betterment
3. Business Interruption

Part IV: Procedure
1. The Technology and Construction Court ('TCC')
2. Expert evidence – see Jackson and Powell, under chapter about litigation