The Supreme Court recently issued a remarkable ruling in a case where damage had occurred to an adjacent property during construction work. The question in this matter was to what extent property damage caused to third parties by construction work could constitute a tort on the part of the contractor in the event that the contractor acted with care in both the preparation and execution of the work.

What was at stake here?

The owner of a property had been granted an environmental permit to build a shop with flats and a basement. This owner concluded a building contract with Multi for the installation of a so-called immersion basement. During the work, part of the basement wall cracked as a result of hitting an obstacle in the ground. The obstacle was partially removed by Multi and two so-called grout injections were made into the ground for stabilisation. The sinking process was then resumed. Subsequently, the lawyer of the owner of the adjacent property summoned Multi to stop the work because a shop window in that property had burst that day and there were serious cracks in the property. This summons was not heeded by Multi and work continued.

The owner of the adjoining property then initiated proceedings. A claim was made for a declaratory judgment that Multi had acted unlawfully, with an order for Multi to compensate the damage suffered, to be assessed by the court.

Judgment of the District Court and Court of Appeal

The claims were dismissed by the court. In the appeal that followed, the court of appeal upheld the court's judgment.

According to the court of appeal, a conduct is not already unlawful due to the mere fact that property damage occurs and is a (foreseeable) consequence of that conduct. What is required is that the behaviour that led to the damage to the property can be qualified as being contrary to what is proper in social intercourse according to unwritten law. It is therefore up to the plaintiffs to argue and, if necessary, prove that Multi breached a standard of care it should have observed towards them and that they suffered damage as a result. The court ultimately came to the conclusion that Multi had acted with sufficient care in the performance of its work and also in the preparation thereof, which meant that there was no liability of Multi under Art. 6:162 DCC.

Supreme Court ruling

In cassation it was complained against the opinion of the court of appeal that a conduct is not already unlawful because of the mere fact that damage to property occurs and is a (foreseeable) consequence of that conduct. This opinion of the court of appeal would show an incorrect view of the law, because in general, at least in cases where as a result of construction work (property) damage occurs in the neighbourhood, the mere damage to another person's property is already careless and therefore unlawful, as it infringes the right to the full and unimpaired enjoyment of the property.

This complaint failed, according to the Supreme Court. The legislative history of art. 6:162 DCC shows that a violation of a right as meant in art. 6:162 subsection 2 DCC does not already exist based on the mere circumstance that a conduct has injury or property damage as foreseeable consequence; in general, such conduct is only unlawful if it is in violation of a standard of written or unwritten law aimed at preventing injury or property damage.

In addition, it was complained against the court's opinion that in preparing and performing the construction work, Multi had not acted contrary to what is proper in social intercourse according to unwritten law. The court of appeal would have misunderstood that Multi, when executing construction work, must prevent damage to property of third parties. This (overarching) duty of care would entail that if during Multi's construction works, despite careful preparation and execution of those works, damage occurs to the property of third parties, Multi is liable for that damage.

From what the court had established in its judgment, it followed that Multi's construction work entailed a substantial risk that damage would be caused to the adjacent property, even if measures were taken to prevent damage and the work was carried out with care. Where this risk subsequently materialised, it cannot then simply be accepted that plaintiffs should bear the resulting damage themselves.

In this respect it is important that the work was carried out in the interest of (the principal of) Multi and yielded no advantage for plaintiffs, that the damage of plaintiffs is not simply part of what must be tolerated by a third party in social intercourse when someone else performs construction work, and that it was rather up to Multi to insure itself against liability for inflicting damage to third parties. The performance of this work by Multi resulting in damage to the adjacent property could therefore constitute a tort requiring compensation for the resulting damage. The Court's judgment was therefore set aside.
Het arrest van het Hof werd dan ook vernietigd.

Conclusion

It can be concluded that, in principle, the performance of construction work is not unlawful towards third parties who suffer property damage as a result if the contractor has acted carefully in the preparation and execution of the work. In this case, however, something special was going on because here there was a significant risk associated with the construction work, which risk could not be eliminated by taking measures. Moreover, the damage (severe cracking and subsidence of the adjacent property) seems to go far beyond what a third party would normally have to tolerate during construction work by another person.

Do you want to know more or do you need advice in a liability matter? If so, please feel free to contact one of our lawyers without obligation. We will be happy to assist you!