Nolan v Advance Construction Scotland Ltd [2014] ScotCS CSOH_4 (17 January 2014)

Nolan v Advance Construction Scotland Ltd [2014] ScotCS CSOH_4 (17 January 2014)

The pursuer failed to mitigate his loss by rejecting reasonable offers of remediation from the defender. Damages are limited to the cost of re-profiling the ground, not capping or removal, as pre-existing soil was already contaminated and capping would amount to betterment. Investigative and ancillary costs are not recoverable as damages.

Citation
[2014] ScotCS CSOH_4
Parties
Pursuer: Donal Alphonsus Nolan; Defender: Advance Construction (Scotland) Limited
Jurisdiction
Scotland
Judgment Date
17 January 2014
Procedural Posture
Commercial Action / Judgment After Proof
Outcome
Decree in favour of pursuer for limited damages
Legal Topics
Encroachment, Mitigation of Loss, Damages, Waste Disposal, Asbestos Contamination
Environmental Law Contract Law Tort Law Encroachment Mitigation of Loss Damages Waste Disposal Asbestos Contamination

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Parties

Donal Alphonsus Nolan

Pursuer

Advance Construction (Scotland) Limited

Defender

Procedural Posture

Commercial Action / Judgment After Proof

Legal Issues

  1. 1 Whether the pursuer is entitled to damages for unlawful deposit of spoil containing asbestos
  2. 2 Whether the pursuer failed to mitigate his loss by refusing reasonable offers of remediation
  3. 3 Whether damages can be recovered for remediation costs where pre-existing soil was already contaminated

Ratio Decidendi

The pursuer failed to mitigate his loss by rejecting reasonable offers of remediation from the defender. Damages are limited to the cost of re-profiling the ground, not capping or removal, as pre-existing soil was already contaminated and capping would amount to betterment. Investigative and ancillary costs are not recoverable as damages.

Court Disposition

Decree in favour of pursuer for limited damages

Orders

  • Award of £19,600 plus VAT to pursuer
  • Matter put out for by order hearing to determine further procedure