Claim against surveyors for damages for breach of contract to exercise due care in carrying out a structural survey for the plaintiff prior to purchase by him of an upper maisonette — Plaintiff complained that the defendants failed to draw attention to defects in a flat roof terrace of timber construction and in an area beneath the terrace, as a result of which the plaintiff paid more than the property was worth — There were also claims for cost of remedial work to eliminate dry rot due to water leaking from the roof terrace, for damage to plants suffered during the works, and for anxiety and inconvenience — The defendants in their survey report had recommended some repair work but had not warned of serious structural defects — In particular, the felt upstands at the walls of the terrace were inadequate; there were no zinc or lead wall flashings; the edge of the felt was turned into a groove in the perimeter walls and there bonded; and there were no timber angle fillets at the junction of the perimeter walls and the decking — The plaintiff was given no warning that the felt was likely to be vulnerable — Also he was given no warning of another defect of construction, namely, that the roof void between the bedroom ceiling and the decking of the terrace was not ventilated — The combination of water penetration from the terrace and the lack of ventilation in the roof void was the probable cause of the dry rot that developed so as to necessitate expensive remedial work — The judge reviewed the expert evidence given on both sides and the relevant case law — He concluded that the defendants fell below the standard required of professional care and skill in failing to appreciate or alert the plaintiff to the potential dangers from the defects in the construction of the upstands and the lack of ventilation — The measure of damages for the first head of claim was the difference between the purchase price of £28,300 and the market value of the property in its defective condition at the date of purchase — The judge put this at £875 — The question of damages under the second head, the cost of the remedial work caused by dry rot, raised an important point of principle — Could the plaintiff recover the increase in the cost of the remedial work for the elimination of the dry rot owing to the fact that the work was not undertaken until 3-4 years after the purchase, when the rot had gained a considerable hold? — The judge, after examining the authorities, held that this was not a recoverable head of damage, as the measure of damage for a negligent survey is strictly limited to the difference in value at the date of purchase and is not related to the cost of eventual repair — He awarded £600 in respect of anxiety and inconvenience and dismissed the claim for damage to the plaintiff’s plants on the terrace
In this action
the plaintiff, Ronald Jonathan Hooberman, sued the defendants, Salter Rex, a
firm, for damages due to alleged negligence in carrying out a structural survey
of an upper maisonette, part of a five-storey Victorian house at 14 Rothwell
Street, London NW1, which the plaintiff purchased, following the survey, for
£28,300 in May 1977. The plaintiff acquired a leasehold interest.
R A M Doggett
(instructed by David Alterman & Sewell) appeared on behalf of the
plaintiff; G Tyrell (instructed by Barlow, Lyde & Gilbert) represented the
defendants.
Giving
judgment, JUDGE SMOUT said: The plaintiff claims damages for breach of contract
against a firm of surveyors. The action arises out of the alleged failure of
the defendants in their contractual duty to exercise due care in carrying out a
structural survey and in advising the plaintiff prior to his purchase of an
upper maisonette. The plaintiff alleges that he relied upon the defendants’
survey and report and on their advice, all provided in March 1977, when he came
to purchase the leasehold interest in the maisonette in May 1977 for £28,300.
An important
feature of the maisonette was a flat-roof terrace which was of timber
construction. It is alleged that the defendants failed to draw the plaintiff’s
attention to defects in the construction both of the terrace and of the area
immediately beneath the terrace. And so he claims that he paid more for the
premises than he would have done had he been advised of the defects; he seeks
damages on that account.
He has other
and additional heads of claim. He alleges that the defects of construction that
were present in 1977, but of which he had not been advised, resulted in water
leaking from the roof terrace into the space beneath the terrace and the
ceiling of his bedroom on the next floor and that that led in due course to dry
rot. This was discovered in 1980. The plaintiff claims damages in respect of
certain of the costs of the remedial work that was necessary to put that right.
He also claims for anxiety and inconvenience, and damage to the value of
numerous plants on the terrace that died during the course of the remedial work
between November 1980 and January 1981.
The upper
maisonette is part of a five-storey Victorian house. It is at 14 Rothwell
Street, London NW1. In or about 1971 the original roof was removed, and
additional accommodation was then created by raising the surrounding parapet
walls and constructing a living-room at the rear part of the area where the
roof had been. Immediately in front of that new living-room, and so at the
front of the house at the top, was laid out a terrace about 18ft wide and 10ft
deep. Access to the terrace was by way of sliding doors from the living-room.
The terrace faced south: it had a splendid view over Primrose Hill and was an
attractive sitting-out area where one might expect to find chairs, tables,
flower pots, tubs, climbing plants and the like. Beneath the terrace roof was
the main maisonette bedroom.
In early 1977
the plaintiff, a solicitor, was offered the leasehold interest for £28,500.
That was prior to survey and was subject to contract. He instructed Mr David J
Heasman, of the defendants’ firm, to undertake the survey and report. Mr
Heasman had many years’ experience in surveying properties. He was a Fellow of
the Royal Institution of Chartered Surveyors and a Fellow of the Incorporated
Society of Valuers and Auctioneers. He inspected the property on March 8 1977,
gave an indication of his views to the plaintiff over the telephone that evening,
and provided a structural survey report dated March 9 1977. In the telephone
conversation Mr Heasman had told the plaintiff that complete repointing was
urgent: it would require scaffolding and would cost about £700: and he stated
that there was bubbling on the roof that may need attention. He mentioned
various other minor repairs that he thought necessary. In the course of the
written report he repeated that immediate attention should be given to the
pointing of the brickwork at the front and back of the maisonette, and
recommended (inter alia) that as the joints around the windows were open
and would allow rain to penetrate, they needed to be filled with mastic. He
also mentioned that in some areas of the terrace the felt had, in his words,
‘blown and should be repaired’. His report noted under the heading
‘Recommendations’:
Having regard
to the structural condition of the premises, I see no reason why you should be
deterred from purchasing the property if you bear in mind the likely cost of
carrying out the essential repairs referred to in this report, in all totalling
approximately £1,500. I should emphasise, however, that this figure is for your
guidance only and you should obtain builders’ estimates for all or any of the
work which you anticipate carrying out before entering into a contract to
purchase the premises.
Armed with the
report the plaintiff approached the vendor and expressed, as he said, alarm at
having a survey that indicated the need for £1,500 worth of repairs. He
negotiated a reduction of £200 in the
The plaintiff
did not spend £1,500 on repairs. A local builder had told him that such a sum
was unnecessary. In the result the plaintiff spent only a few hundred pounds on
minor repairs. He said in evidence that he had no cause to think he had to do
anything to the terrace, and it did not cross his mind that the terrace might
have any faults. The repointing, the filling with mastic, and the repairs to
the bubble or blown felt were apparently not done.
The plaintiff
had central heating put in the maisonette. He acquired upwards of a 100
trailing plants on the terrace, which he watered with a hose: two plant boxes
were constructed and the garden of the terrace flourished as appears from a
photograph. There was a central gulley on the flat roof in front of the sliding
doors which drained the terrace.
In July 1980,
over three years after his purchase, the plaintiff returned from a fortnight’s
holiday to find a bulge in the bedroom ceiling full of water. He described it
as in the centre of the ceiling towards the east wall. He pierced the bulge
with a screwdriver and released several pints of water. Emergency builders were
called in. The plaintiff assumed that the water had come through the felt on
the terrace. On examining the felt he found some cracks or tears in a position
which at one stage he described in evidence as above the area where the bulge
had appeared in the ceiling, and which he described later as in the area up against
the east wall. Cracks are to be seen in the felt in photographs in the upstands
at the edge of the terrace. He also saw above the ceiling dry rot in the corner
by the front wall on the east side.
He wrote to
the vendor on August 29 1980. The substantial part of the letter reads as
follows:
I regret to
inform you that a very serious problem has arisen with regard to this property.
You will
recall that I telephoned you a few weeks ago and told you that, on return from
my holiday at the end of July, I found a large damp patch in the centre of the
front bedroom ceiling which had apparently arisen from a leak in the roof. You
assured me that the roof was of very sound construction with plastic membrane
and marine ply beneath the tiles and three layers of felt.
Unfortunately,
on further investigation it was found that instead of marine ply, the
construction was of shipboard which had become sodden and a large quantity of
water had been retained in the roof cavity by the plastic membrane. When I
pierced it, about six pints of water were released. There was no provision for
ventilation and excessive dry rot had formed. In the builder’s opinion this had
taken place over quite a long period and it is now necessary to remove the
entire flooring of the roof terrace, a large section of the timbers between the
second floor and the terrace as well as the lintels to the bedroom windows.
As you will
appreciate better than I, this will necessitate the erection of scaffolding,
arrangements to support the new roof timbers, perhaps by a reinforced steel
joist, and a new floor to the roof terrace not to mention the stripping out of
the fitted wardrobe which I had made, the replastering and the redecoration of
the room.
The builders
who looked at it also thought that the nature of the construction of the roof
terrace was not in accordance with good building practice and, in particular, it
was not suitable to place on felt heavy quarry tiles which would be likely to
cause tears in the felt.
There is
nothing in the point with regard to the weight of the quarry tiles. A copy of
that letter was forwarded to Mr Heasman, the surveyor, on September 11 1980.
The repair
work was done by Skellco (Roofing) Ltd who took over from the emergency
builders. The cost of the remedial work carried out in the winter of 1980-81
was £6,391.27.
Mr Fish of
that company recalls visiting the scene in September or early October 1980
after the emergency builders, who had provided temporary protection, had left
the site. He recalls that a hole, a square metre or less, had been opened up in
the ceiling of the bedroom through which he could see the joists. He described the
position of the hole as in the middle but to the left-hand side of the ceiling
as you face the front, ie to the eastern side. There was dry rot, he said,
‘well over halfway back from the front wall’. Above, and in a corresponding
position of the terrace, was a depression with a tear in the felt. There was
also dry rot on the front wall. However, later when considering the drawing P3
he corrected his estimate as to the position of the hole and accepted that the
dry rot extended no further than 3 to 4 ft from the front wall. He found the
felt was brittle, and noted another tear in the flashing at the base of the
wall where there was a join in the felt.
The tear in
the felt mentioned by Mr Fish as in the depression above the hole towards the
centre was not noted by Mr Fiddler, a consulting engineer, who examined the
premises in November 1980 on behalf of the plaintiff before the remedial work
was done. Mr Fiddler noted, however, not one but a number of cracks or tears
along the tops of the felt at the flashing along the front wall. He saw the dry
rot fungus that is vividly depicted in photographs, and told the court that the
joists had to be cut away for about 4ft from the wall. Both Mr Fish and Mr
Fiddler spoke in evidence of some dampness in the front wall of the bedroom but
it appears to have been only slight. Mr Fiddler saw some chipboard which had
been removed and had formed part of the floor of the terrace and which was
sodden and disintegrating.
Mr Heasman,
the surveyor, also examined the premises in November 1980. His contemporary
note of the visit reads:
I inspected
the premises today when builders were in the process of stripping up the roof
terrace decking. The decking appeared to be quarry tiles laid on felt over
chipboard which in turn had been laid on polythene sheeting and was carried on
counter joists set into main joists bearing into the front main wall. The top
floor ceiling plaster in the front room had been removed and panels of plaster
on the front main wall for exploratory purposes. There was a fairly heavy
attack of dry rot fungus to the front end of the structure where the joists
which were relatively new, and had been treated with preservative, bore on to a
wall plate built into the structure which was probably part of the original
structure.
I am satisfied
that the dry rot in the joists at the front wall went back some distance so
that 4ft of timber had to be cut out in order to be safe. But I do not feel
able to accept on the evidence as Mr Fish has suggested that there was a
separate outbreak of dry rot towards the middle of the ceiling unconnected with
that at the front. Had that been so, I think Mr Heasman would have recorded it
in his contemporary note.
It seems that
the depression in the terrace above the hole in the ceiling to which Mr Fish
refers may very well be explained by the explorations of the emergency
builders. Moreover, if there was a tear in the felt towards the centre of the
terrace and away from any of the walls, I am not satisfied that it was likely
to have been of material significance. It, likewise, may have been caused by
the emergency builders in displacement of the quarry tiles. Nor do I attach
much importance to the precise position of the bulge in the ceiling, for by
reason of polythene sheeting which had been laid during construction of the
terrace above the roof joists immediately below the roof decking, any water
that did leak through the felt might well flow some distance along the
polythene before accumulating in quantity.
It seems
highly improbable that several pints of water could have accumulated by reason
of rain penetrating the poorly pointed front wall or through the open joints
around the window: indeed, the evidence does not suggest that the front wall
was ever more than slightly damp. Nor is any condensation from the central
heating likely to have been material.
The point has
been made that there was an error in the original construction of the terrace
in regard to the positioning of the polythene sheeting. That sheeting was laid
so as to constitute a vapour barrier. As the design was that of a cold deck,
such a barrier should have been laid immediately above the bedroom ceiling and
beneath the joists between which the insulation was placed. In fact, however,
the polythene was laid above the top of the joists, ie above the insulation,
above the roof void and immediately beneath the chipboard. That error was one
that the defendants could not have known at the time of inspection. The
polythene would conduce to condensation in the roof void and above the ceiling.
There is no evidence, however, that leads me to consider that such
condensation, which would be beneath the polythene, would of itself be
sufficient to produce several pints of water. Nor would such condensation
produce sodden chipboard which was part of the decking above the polythene.
In my view,
much the most probable cause of the accumulation of water in the ceiling was
from the use of the hose and from rain on the terrace, such water having leaked
in through the cracks in the felt upstands by the front wall near where the
plants were situate. Such conclusion is supported by the photographs as to the
position of the dry rot and by the defective design in respect of the
attachment of the felt to the walls. The felt upstands at the walls were inadequate:
there were no zinc or lead wall flashings, and the edge of the felt was turned
into a groove in the perimeter walls and there bonded; nor were there any
timber angle fillets at the junction of the perimeter walls and the decking. In
the result the felt was not able to accommodate such differential movement as
is produced by changes in load or other pressure or thermal variations as were
inevitable. As such, the felt
paving slabs near the corners of the terrace and the provision of planting
boxes by the side walls do not appear to me to have been unreasonable in the
circumstances, nor, for that matter, was the use of a hose. The plaintiff had
no warning that the felt was likely to be vulnerable so soon after his purchase
of the property. There was another defect of construction in that the roof void
between the bedroom ceiling and the decking of the terrace was not ventilated.
Again, this was a matter as to which the plaintiff had no warning.
It was, in my
view, the combination of water penetrating from the terrace and the lack of
ventilation in the roof void which together caused the dry rot that so built up
as to necessitate the expensive remedial work in the winter of 1980-81.
Accordingly I
have to determine whether the defendants fell short of the standard of ordinary
skill and care owed by competent surveyors in their failure to recognise and
warn the plaintiff in March 1977 of the dangers inherent in the faulty felt
upstands of the terrace, and in the lack of ventilation in the roof area
between the terrace and the bedroom ceiling. Each defect was a substantial
cause of the eventual damage. Both were readily apparent. Should their
significance have been appreciated at the time of the inspection by Mr Heasman
in March 1977?
Mr John
Taphouse was the expert witness called by the plaintiffs. He is a chartered
building surveyor and a Fellow of the Royal Institution of Chartered Surveyors,
and of 30 years’ professional experience. He drew attention to the British
Standards Code of Practice No 144 published in 1970.
Paragraph
2.4.2 of the code warns that roof decks may ‘fail structurally from persistent
moisture ingress arising from site exposure, condensation or leakage. Designers
wishing to use these decks should ensure that every step is taken to minimise
such risks’. Figure 1 at p32 of the code shows the recommended manner of
attaching felt with a metal flashing against a vertical wall. It will be seen
that the felt would thus be free to move up and down and is not bonded to the
wall. Para 3.8 of the code states:
Where roofs
having timber joists, or timber board, resin-bonded wood shipboard or plywood
decks are constructed so that there is a space between ceiling and deck, this
space must be ventilated to the open air to avoid fungal growth . . .
He expressed
the view that flat roofs had already a bad reputation by 1977 and had been
known for very many years to be particularly vulnerable. He said in evidence
that despite the absence of any evidence of damp in 1977, some six years after
construction, a surveyor should none the less look at such a roof very
carefully and if he saw defects of construction then he should ‘sound a warning
of possible failure’. In his expert report that formed part of his evidence he
states at p15:
It is quite
clear that there were sufficient warning signs in the visible roof construction
to have enabled a competent surveyor to predict with a fair degree of certainty
that leaks would occur and dry rot would break out as a consequence.
And he
concluded that the survey report of a reasonably careful surveyor:
would have
emphasised that the roof void is unventilated and he should have sounded the
strongest possible warning that this lack of ventilation may have already
caused rot to occur or would certainly induce dry rot in the future. A surveyor
should have advised his client to provide adequate ventilation to the roof
structure at the earliest possible time.
Mr Leo Lewis,
the expert called by the defendants, took a different view. He likewise was a
Fellow of the Royal Institution of Chartered Surveyors with considerable
experience. He would not accept that by 1977 timber roofs had a poor record and
had to be regarded with suspicion. Nor did he believe that he himself would
have warned as to the lack of ventilation. He put his point in this way:
You may say
any roof may leak and that would lead to dry rot. You can raise doubts that are
too great — you have to be selective in your recommendations. What my client
seeks from me is a balanced judgment. There is no way in which a house of
antiquity is going to be in good order. You would not get anywhere by saying
that certain features do not accord with modern requirements.
He conceded,
however, that:
The absence
of cover flashings were such that a reasonably competent surveyor would know
was bad practice in 1977.
and further:
A reasonably
competent surveyor would seek to find out if there were any angle fillets.
Although Mr
Lewis emphasised the likelihood of condensation from the erroneous position of
the vapour barrier, and that the defective pointing was another very likely
cause of moisture, he none the less had to accept that six pints of water
coming through the ceiling indicated a leak in the roof.
Mr Heasman was
a frank witness. He was palpably honest. He described his role in this way:
When I give a
survey, my object is to advise my client as to any reason of a structural
nature that should prevent him from purchasing the property, and also to advise
him of any necessary repairs.
and later:
I was there
to advise the plaintiff as to whether he should buy the property: no evidence
that he should not.
and again:
The purpose
of my survey was not to alarm a client who clearly wanted to buy the property .
. . if a real risk of serious problems, of course, I would warn him. When
carrying out a survey, I think a surveyor has to have regard to the salient
points — to the points likely to be of concern to the client.
When pressed
in cross-examination with regard to the lack of ventilation he said:
I did not
mention lack of ventilation between ceiling and roof joists. I was not aware of
lack of ventilation because I was not looking for ventilation. At that time not
mandatory for ventilation . . . for paragraph 3.8 is a code of practice (CP
144) and not a by-law.
When asked if
he did not know that journals at that time were warning surveyors as to the
lack of ventilation in regard to flat roofs, he replied:
Ventilation
was not required by statute. The journal is like a White Paper that might
become an Act of Parliament. Until the code of practice is a by-law, it is not
essential. If I saw something that did not accord with the recommended
practice, I would not wish to alarm the purchaser.
And as to the
felt upstands:
The felt was
laid directly into the parapet wall. That is contrary to what is recommended to
be the best practice. It is not uncommon. I noted that the felt was put
directly into the parapet wall. That did not concern me to the extent that I
should refer to client as a matter of importance. No defect was visible. It had
been in position for some years. I looked to see if felt upstands had suffered
any tearing. If I had seen any evidence of stresses I would have noted them.
In fact he
noted in his survey report — ‘Flashings in felt OK . . .’.
In my view Mr
Heasman was under a misconception as to his role. He was there to inspect the
property so far as reasonably practicable so as to report candidly upon its
condition. No doubt he has to be selective and determine what aspects are
important and what are unimportant, but whether his conclusions are comfortable
or uncomfortable to the client is immaterial. I feel that Mr Heasman was not
exercising a sufficiently independent judgment to provide a reliable assessment
of the condition of the property. Furthermore I conclude that in limiting his
role to that of considering whether or not the client should buy the property
and as to what repairs were necessary, he overlooked the need to consider what
were the potential dangers that needed to be avoided. I bear in mind Mr Lewis’
warning to the court against hindsight. None the less, I am satisfied that in
the state of knowledge in the construction industry and among surveyors in 1977
it was generally appreciated that flat roofs were vulnerable, that their
construction had to be viewed with caution, that the defects in respect of the
upstands and lack of ventilation at these premises were apparent and were
contrary to good practice, and that a competent surveyor should have
appreciated at that time that they reflected a serious potential danger. I have
to say that in this instance he fell below the standards of ordinary care and
skill and that he failed to appreciate the significance of the defects and
accordingly failed to warn the plaintiff of serious potential danger.
In the result
I accept the conclusion of Mr Taphouse in his expert’s report, that Mr Heasman
‘should have advised the plaintiff that the roof was poorly designed and
constructed and that it was likely to be troublesome’. Had the plaintiff been
so advised, he could then have negotiated the purchase of the house in full
knowledge of its true condition and could either have secured the house at a
price he considered to be reasonable, or, if the vendor refused to negotiate,
he could have taken the decision on whether to proceed with the purchase or
not. Mr Taphouse added the comment that the direct result is that the plaintiff
has suffered a great deal of expense,
It is the
determination of the proper measure of damages that has caused me real
difficulty in this case. If the defects in construction, of the felt fixing and
the lack of ventilation, had been remedied in May 1977, it is estimated that
the cost would then have been about £1,600, plus VAT. Such remedial work would
have produced a sound roof, and avoided the danger of dry rot that subsequently
developed. But £1,600 plus VAT is not the measure of the plaintiff’s actual
loss. Through no fault of his own he has now incurred expense for remedial work
to the extent of £6,391.27.
I turn now to
the plaintiff’s first head of claim: that for damages for having paid more for
the property than he would have done had he been advised of the defects.
It is not
disputed that the price of £28,300 represented the value of the property had it
been in the condition that the survey indicated. But it was not in that
condition. The measure of damages for the immediate loss arising out of a
negligent survey prior to purchase must be the difference between the £28,300
and the market value of the maisonette in May 1977 in its then condition, ie in
its true condition. See the decisions of the Court of Appeal in Philips
v Ward [1956] 1 WLR 471 and Perry v Sidney Phillips & Son
[1982] 1 WLR 1297. That difference represented the plaintiff’s immediate loss
in that by reason of the negligent survey he paid for the house that much more
than it was worth.
How am I to
determine what was its market value in May 1977 in its then condition? Mr
Taphouse, in his expert’s report, disclaims any ability to give evidence as to
market value, but suggests that had the plaintiff known of the defects he would
have been able to obtain a reduction of between £750 and £1,000. That view was
not challenged in evidence, although Mr Lewis, in his expert’s report, does not
accept that there was any diminution in value. In the statement of claim the
plaintiff limits his claim in this regard to £1,000. On the sparse material
before me, I assess the diminution in value as midway between the two outside
figures suggested by Mr Taphouse, and assess damages under this head in the sum
of £875 accordingly.
The
plaintiff’s second head of claim is for the increase in the cost of remedial
work caused by the development of dry rot, ie the 1980-81 repair cost of
£6,391.27 less the hypothetical cost of preventive repairs had they been
effected in 1977, namely, £1,600 (plus VAT).
This case
accordingly raises the question whether a surveyor instructed to advise on the
condition of premises prior to purchase is liable for the long-term
consequences of defects existing at the time of survey but which he negligently
failed to point out, and which, as they were not rectified, resulted eventually
in substantial damage. The chain of causation is established in that the
negligence caused the failure of the purchaser to appreciate and thus to
rectify defects which, because they were unrectified, caused substantial
damage. Moreover, the particular consequences that developed in this case, the
leaking terrace and the dry rot in the bedroom ceiling, constituted damage
which was in my view of a type that ought to have been in the reasonable
contemplation of the defendants as a probable consequence of the lack of
preventive action due to their failure to exercise due care. It would
accordingly appear that on the ordinary principles relating to breach of
contract the defendants should be held liable for the full consequences of
their failure to exercise due care, namely the cost of rectification of the
eventual damage in so far as that may exceed the cost of any repairs that
should have been done at the date of purchase and taken into account in
determining true market value. However, I am not satisfied that it is open to
this court to interpret the principles expressed in Philips v Ward
as restated by Lord Denning MR in Perry v Sidney Phillips & Son
in such a way as to award damages for the long-term consequences of the failure
to take preventive action. There is no reason to believe that the ravages of
the death-watch beetle in Philips v Ward or the leaks in the roof
in Perry v Sidney Phillips & Son ceased to cause further
damage after the moment of purchase, yet it was the moment of purchase that was
the decisive date for the assessment of damage. The point is underlined in Daisley
v BS Hall & Co (1972) 225 EG 1553, where the risk of damage from an
undetected hazard had in fact receded after purchase and that matter was held
by Bristow J as one that the court was not entitled to take into consideration.
On my understanding of the law as developed and applied in recent years in this
particular field, I hold that the cost of repair occasioned by the leaking
terrace and the dry rot, although in my view consequent upon the defendants’
negligence, is none the less not a recoverable head of damage. I have to accept
that the measure of damages in the case of a negligent survey prior to purchase
falls to be assessed at the time of the purchase, because the damage is
strictly limited to the difference in value at that date and is not tied to the
cost of eventual repair.
I am not
persuaded that there is anything in the Court of Appeal’s decision in Dodd
Properties (Kent) Ltd v Canterbury City Council [1980] 1 WLR 433
that has diminished the authority of Philips v Ward in this
respect. Nor am I entitled to be deflected by the decision in Hill v Debenham,
Tewson & Chinnocks (1958) 171 EG 835. I postponed judgment in the
instant case so that the transcript might be obtained of the recent decision of
Popplewell J in Treml v Ernest W Gibson & Partners (June 27
1984)*, but it appears that that case does not assist me in my present problem.
As Lord Denning emphasised in Philips v Ward, the measure of
damages in respect of a negligent survey is not the same as in a case where a
tortfeasor has damaged or destroyed property or left property out of repair:
nor, as he indicated in Perry v Sidney Phillips & Son, is it
the same as for the bad workmanship of a contractor. It falls into a separate
category. In the result I am not able to make any award in respect of the
long-term consequences to the building of defects which the defendants
negligently failed to point out.
*Editor’s
note: Reported at (1984) 272 EG 68, [1984] 2 EGLR 162.
The plaintiff
also claims for damages for anxiety and inconvenience during the period between
the discovery of the bulge in the roof in July 1980 and the completion of the
repairs in January 1981. He had to sleep in a small back bedroom which he said
was noisy and dusty, and where he was surrounded by surplus furniture, much of
it no doubt displaced from the main bedroom. In effect, he had to live out of a
suitcase for six months. Moreover, between November 1980 and January 1981
workmen and materials were passing through the house. There was a security
problem because scaffolding had been erected at the side of the house and was
in position for much of the time. He had to involve himself also in the
day-to-day problems of the building work. These are matters which disrupted his
daily life and to some extent restricted his social life. The inconvenience was
considerably greater than it would have been had the plaintiff been warned of
the danger in 1977 and then ordered the preventive work. It is well recognised
that damages may be awarded for anxiety and inconvenience where such, as in
this case, are reasonably foreseeable. Although there may be some apparent
anomaly in awarding damages for anxiety and inconvenience occasioned during the
period of diagnosis and repair, whereas the cost of repairs are not themselves
recoverable, none the less I am satisfied that it is a good head of claim. In Perry
v Sidney Phillips & Son the Court of Appeal recognised its validity
where, as in the instant case, such damage was reasonably foreseeable. But it
is established that the sum to be awarded under this head must be a modest one.
It appears that comparisons with the holiday cases are more to the point than
are those with regard to personal injuries. The worry of litigation is, of
course, not relevant and I put that to one side. In my view, the sum of £600 is
appropriate for the anxiety and inconvenience that the plaintiff suffered
during the period July 1980 to January 1981.
As to the loss
of the plants for which the plaintiff claims £150, it is sufficient I think for
me to say that I am not satisfied either that such damage was caused by the
negligence of the defendants or that it was within their reasonable contemplation
at the date of the breach. The disturbance of the plants may have been an
inevitable consequence of the breach of contract but their destruction was not.
Accordingly I
hold the defendants liable in breach of contract for failure to exercise due skill
and care. The damages for such breach are:
(i) £875 in respect of the difference in value
of the premises at the time of the purchase in May 1977;
(ii) £600 in respect of anxiety and inconvenience
for the period July 1980-January 1981.
