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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 10382
Experience:  I have been practising for 30 years.
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A blocked drain in the road outside a holiday cottage

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A blocked drain in the road outside a holiday cottage resulted in the hall flooding. This was not considered by the tenant to be of significance but by the Saturday the carpet had begun to smell quite obnoxiously. I sought to have the next tenant moved to avoid confrontation but the agent let me down. Monday there was confrontation, they left and a full refund was paid. £550.00. The cost of cleaning was 65.00
HISTORY. Twice before in years gone by neglect of this drain resulted in the cottage being flooded quite devastatingly. I was shattered when I saw the damage. However, clearly the then permanent tenant had clearly done little or nothing to mitigate the damage. I claimed for the downstairs floor coverings which were wrecked, not even for the upstairs carpets which had to be replaced to match. The council settled but I was bitter at the mess.
Now it as happened again. The question is with regard to remoteness of damage. Can they argue that a smell could not have been anticipated or could not have been anticipated to cost me my guests. I stress I gather it was terrible and took a heat and chemical clean to cure.
I add, each season after last time I I have reminded the local authority to clear the drain but the last time I did it by phone I got a very sharp response. 'It was scheduled maintenance and they did not need me prompting them' This make these events particularly annoying.

What exactly is it that you want to know about this?

Customer: replied 1 year ago.
I believe in general terms the council are responsible for the drain and liable for the immediate damage, the carpet. But is there a defence of remoteness of damage in that the carpet smelt as a consequence and the tenant left because of the smell. I remember from my studies many years ago a doctrine of remoteness of damage. Am I likely to be hit with it and will it work? I want to know what I am letting myself in for

Thank you. You are absolutely correct about remoteness of damage and its tied in with whether the loss was reasonably foreseeable.

For example if as a result of the flood caused by the council’s negligence (failure to repair) there was this horrible smell and someone was allergic to the smell and as a result of the allergy they were constantly sneezing and during one of the bouts of sneezing, they were driving the car, and lost control and hit a lamp post, that incident is not reasonably foreseeable and hence to remote from the flood to be actionable. I am exaggerating to prove the point.

I think this is more with regard to a duty to mitigate the loss.

For example, if the property was flooded and you simply ignored it for 12 months, the local authority would not be responsible for the ongoing damage as a result of you abandoning the property.

It is not unreasonable that it would need a deep clean after such a flood but whether the extent of that was as a result of the council’s lack of action or the tenant’s lack of action is possibly debatable.

If the property flooded and the tenant simply walked away without advising you, and the local authority will not pay for all the damage on the basis that the further damage could have been avoided, then your further claim would be against the tenant because they have been negligent by not advising you so that you could do something about it.

Can I clarify anything arising from this?

I am happy to answer specific questions arising from this?

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Customer: replied 1 year ago.
Thank you for your help here. I don't think the tenant in this instance bears any blame. They were holiday tenants and swear the smell was brely detectable when they left. It was a remarkable reaction as well as an unpleasant one. I think I will have a go if only to ensure they don't let it block again.

I am pleased to have been of assistance.