Landlord and tenant — Apportionment of liability — Claims by tenants and counterclaims by landlords following collapse of part of warehouse roof — Collapse due to accumulation of rain-water because of blocked outlets — Appeal from decision of Judge Fitzhugh QC, sitting as a judge of the High Court — The blockage had been caused by failure to clear bird droppings, bird feathers and silt — The tenants, whose goods were damaged, claimed on the basis of an implied covenant by the landlords to keep the roof and outlets in good repair and condition; alternatively, they claimed on grounds of nuisance and negligence — The landlords counterclaimed under the tenants’ repairing covenants in the lease and also, alternatively, in nuisance and negligence — The judge below held, in favour of the tenants, that the roof over the tenants’ unit was not included in the demise and that the landlords were under an implied contract to keep it and its outlets in good repair and condition; and he dismissed the landlords’ counterclaim — Held by the Court of Appeal that part of the roof over the tenants’ unit was included in the demise and that there was no implied contract by the landlords to keep the roof and its outlets in good repair and condition — The part of the roof included in the demise was subject to the tenants’ repairing covenant and the tenants were to that extent in breach of covenant — On the other hand, the landlords, although not liable under an implied contract to repair, were liable in nuisance and negligence save in so far as they were absolved by the tenants’ breach of covenant — They were in control of the majority of outlets and they had been expressly warned by architects of the danger of blockages caused by the droppings and feathers of seagulls
the appeal was, therefore, the interplay between the liabilities of the
landlords and tenants — The apportionment provisions of the Law Reform
(Contributory Negligence) Act 1945 did not apply because, like the old common
law, they did not apply to claims in contract — In the present case the
landlords’ crossclaim was a claim in contract, their alternative claims in
nuisance and negligence having been rejected — The problem here was a problem
of causation, and apportionment on that basis was permissible — The court on a
broad assessment apportioned 90% liability to the landlords and 10% to the
tenants — The judgment below would be varied and an inquiry as to damages
ordered on the counterclaim as well as the claim and the landlords ordered to
pay 90% of the tenants’ damages and the tenants to pay 10% of the landlords’
damages — Appeal on that basis allowed
The following
cases are referred to in this report.
Barnes v City of London Real Property Co Ltd [1918] 2 Ch 18; (1918)
119 LT 293; 34 TLR 361
Edmonton
Corporation v W M Knowles & Son Ltd
(1962) 60 LGR 124
Forskringsaktielselskapet Vesta v Butcher, October 30 1987, unreported
Grant v Sun Shipping Co Ltd [1948] AC 549; [1948] 2 All ER 238, HL
Hargroves
Aronson & Co v Hartopp [1905] 1 KB 472
Leakey v National Trust for Places of Historic Interest and Natural
Beauty
Sedleigh-Denfield v O’Callaghan [1940] AC 880; [1940] 3 All ER 349; (1940) 164
LT 72; 56 TLR 887
Sleafer v Lambeth Borough Council [1960] 1 QB 43; [1959] 3 WLR 485;
[1959] 3 All ER 378; (1959) 57 LGR 212, CA
This was an
appeal by the defendants below, Warrington Development Corporation, the
landlords, against the decision of Judge Fitzhugh QC, sitting as a judge of the
High Court, in favour of the respondent tenants, plaintiffs below, Tennant
Radiant Heat Ltd. Judge Fitzhugh upheld the respondent tenants’ claim and
dismissed the appellants’ counterclaim.
John Mowbray
QC and Nigel Howarth (instructed by A W Mawer & Co, of Manchester) appeared
on behalf of the appellants; Leolin Price QC and Brendan Hegarty (instructed by
Pannone Blackburn, of Manchester) represented the respondents.
Giving
judgment, DILLON LJ said: The appellant, a new town development corporation
(‘the corporation’) is the owner of a warehouse building at Chetham Court,
Winwick Quay in Warrington which was constructed in the late 1970s. The respondent
(‘the lessee’) is the lessee of a part of that building known as unit no 6. On
October 22 1980 part of the roof of unit 6 collapsed under the weight of
rain-water accumulated above it. The accumulated water poured through the hole
made by the collapse of the roof and the lessee’s goods stored in unit 6 were
damaged. The lessee therefore started this action, claiming damages against the
corporation for the damage to its goods. The claim was put on the ground that
on the true construction of the lease of unit 6 and in order to give it
business efficacy there is to be implied in the lease a covenant by the
corporation to keep the roof of the building, and the rain-water outlets in the
roof, in good repair and condition, or alternatively on the grounds of nuisance
or negligence. The corporation denied liability and counterclaimed against the
lessee, under the repairing covenants in the lessee’s lease of unit 6, for the
cost of repairing the roof.
The action and
counterclaim came before Judge Fitzhugh QC, sitting in Manchester as a judge of
the High Court in the Chancery Division, for trial on liability only. By his
decision of December 19 1985 he held that a covenant by the corporation to keep
the roof, the building and the rain-water outlets in the roof in good repair
and condition was indeed to be implied in the lessee’s lease of unit 6.
Accordingly, as it was common ground that if there was such a covenant the
corporation was in breach of it, he directed an inquiry as to damages on the
lessee’s claim, and he dismissed the corporation’s counterclaim. The
corporation now appeals to this court against that decision. By a respondent’s
notice the lessee has brought before this court its alternative grounds of
claim in nuisance or negligence. The basic facts have never been in dispute,
and the issues on the appeal and under the respondent’s notice are
predominantly issues of law.
The building
which includes unit 6 is an extensive single-storey steel-framed building
divided into 22 units which are not all of the same size. The building is
approximately 111 m long and 75 m wide — the size of a rugby pitch — and 6 m
high. The units are self-contained; each is divided off from the adjoining
units by blockwork walls which are built into the steel frame to the full height
from floor to roof. Unit 6 is a small unit; it has a depth of 18 m and a width
of 10 m, and was described in argument as being roughly 1/49th of the whole
building in area.
The roof is an
important factor. It is a single continuous deck covering all 22 units in the
building, with a shallow fall from the centre to the front, covering half the
building, and a similar fall from the centre to the back covering the other
half. The roof consists of a specialised metal decking only 9mm thick, topped
by a 50mm layer of foam insulation, with, on top of that, several layers of
felt with a reflective surface. The roof is surrounded by a fairly high parapet
on all sides, and access to the roof can be obtained only by placing a ladder
against the outside wall of the building, climbing the ladder, and clambering
over the parapet; there is no access to the roof from inside any of the units.
Rain-water drainage from the roof is provided by 24 rain-water outlets, 12 in
the front half and 12 in the back half of the roof, each just inside the
parapet which I have mentioned. Each outlet is covered by a removable plastic
grille. Below each grille is a pipe leading down within the building to normal underground
storm water sewers.
On the
pleadings it was common ground between the parties that one of these down pipes
came down within unit 6, and one of the outlets, with its grille, was in the
roof over unit 6. At the trial the number of outlets in the roof over unit 6
was the subject of controversy. There was evidence from one witness that there
were two outlets in the roof over unit 6, but there was other evidence that
there was only one, and we see no reason to interfere with the judge’s finding
of fact that there was only one rain-water outlet in the roof over unit 6.
It seems that
at the time of the collapse of the roof of unit 6 in October 1980 only a couple
of the units in the building had been let apart from unit 6; all the rest were
unlet, unoccupied and still in the possession of the corporation. One of the
two others which had been let, however, was one of the units immediately
adjoining unit 6.
The
accumulation of rain-water on the roof which caused the collapse of part of the
roof of unit 6 came about because all the rain-water outlets on the roof which
I have mentioned had been blocked up by bird droppings, bird feathers and silt,
so that the rain-water had no means of getting away. This was a danger which
had been brought fairly and squarely to the corporation’s attention by their
architects a year before in a letter of September 6 1979, where the architects
said:
During the
recent inspection of the building . . . prior to issue of certificate of
practical completion, a significant point emerged concerning the maintenance of
the roof finish.
Evidently, a
large flock of seagulls located in the area are using the roof as a resting
place. In addition to the mess they are creating with droppings, they are
leaving behind large quantities of feathers which, during the course of rain
accumulate around the roof outlets and obstruct the proper draining of water
off the roof.
I note from
your comments on the maintenance check list that the question of keeping the
roof clear is an item which you consider the responsibility of the occupants,
but in view of this particular problem we strongly suggest that this item is
carried out on a regular basis by WNTDC and taken out of the hands of the
tenants. I am sure you will agree that it is very unlikely tenants will ever
clean their respective areas on a regular basis — in fact tenants have really
no way of knowing which areas refer to their units anyway, so the idea is
really quite impractical. It is important that the roof must be regularly
inspected and kept clean if it is to function properly, otherwise problems will
inevitably arise . . .
The judge
dealt with the case on his construction of the lessee’s lease of unit 6, and,
as I have said, he held that there was to be implied in the lease a covenant by
the corporation to keep the roof of the building and the rain-water outlets in
the roof in good repair and condition.
The lease is
dated November 1 1979 and is for a term of five years from that date at a
yearly rent of £2,925, together with an insurance rent. The property demised is
described as being ‘all those premises situate and known as 6 Chetham Court,
Winwick Quay, Warrington, in the . . . County of Cheshire and for the purposes
of identification only shown edged red on the plan annexed hereto’. The property
demised was granted, as is almost common form in such circumstances, together
with
the right to
free passage of surface storm soil and effluent drainage gas water electricity
steam and telephone or any other service or supply from or to the demised premises
through the sewers drains water courses conduits pipes wires and cables then or
thereafter during the term in or over under or upon the other buildings and
land of the Corporation and its lessee adjoining or near to the demised
premises
and subject to
a corresponding exception and reservation.
The lessee’s
covenants in the lease include a full repairing covenant in clause (5)(a)
whereby the lessee covenanted:
to repair and
keep the demised premises and all present and future buildings and erections
thereon and on every part thereof . . . maintained repaired and cleansed and
generally in good and substantial repair and condition.
There is an
exception in the event of destruction by fire or special perils in respect of
which the corporation had insured, but it is common ground that the
corporation’s insurance did not cover what actually happened.
There are
further covenants by the lessee as follows:
2(5)(b): to
pay a fair proportion (to be conclusively determined by the Corporation) of the
expenses payable in respect of repairing renewing maintaining rebuilding and
cleansing all private sewers drains roads pavements car parking spaces
landscaped areas and other things the use of which is common to the demised
premises and other premises within the area shown edged blue on the plan
annexed hereto and known as Chetham Court, Winwick Quay, Warrington aforesaid
(damage by coal mining subsidence excepted) and to keep the corporation
indemnified against such proportion of such costs and expenses as aforesaid (damage
by coal mining subsidence excepted) . . .
2(13): not to
exhibit on the outer wall or roofs of the demised premises or of
may previously have been approved by the Corporation and in default the
Corporation may enter and remove the same at the Lessee’s cost Provided however
that the Lessee may erect a sign in such position and of such form colour or
design as may be first approved by the Corporation (such approval not to be unreasonably
withheld) displaying the name and business of the Lessee.
2(14): not to
suspend any weight from the roof or roof members or use the roof of the demised
premises for the storage of goods or to place or permit or suffer to be placed
any weight thereon or to permit any person or persons to enter thereon save
with a view to the execution of necessary repairs and then only in such manner
as to subject the roof and roof members to the least possible strain.
The lessee’s
covenants run to some 27 in all and are obviously drawn with considerable care
and in great detail. The corporation’s covenants as lessor are merely the usual
qualified covenant for quiet enjoyment and a detailed covenant to insure
against destruction or damage by fire or special perils, which it is not
necessary to set out.
There are
cases, such as Barnes v City of London Real Property Co Ltd [1918]
2 Ch 18 and Edmonton Corporation v W M Knowles & Son Ltd
(1961) 60 LGR 124 in which it has been held that where in a lease there is a
covenant by the lessee to make payments to the lessor for the provision of
certain services or for the carrying out of certain works, then a covenant by
the lessor to provide the services or carry out the works may be implied. But
in the present case the lessee seeks to go very much further than that, and I
cannot see that it is entitled to do so. Where a landlord of a building grants
a lease of a part only and is in a position to insist on the lessee taking a
lease in a common form of the landlord’s choice, it is not at all unusual to
find that the lease does not contain any covenant by the landlord to do repairs
to parts of the building, however important, and whether included in the demise
or not. Yet it has never been held in any general way that it is necessary to
imply a repairing covenant on the part of the landlord to give business
efficacy to the contract: see Sleafer v Lambeth Borough Council
[1960] 1 QB 43, and see also Woodfall on Landlord and Tenant, 28th ed
vol 1, para 1-1465. It may well be objectively sensible, or reasonable, that
there should be such a landlord’s covenant, with a corresponding covenant by
each lessee to contribute a proportionate part of the expense, but that is not
enough to warrant implying such covenants.
In the present
case there are references to the roof where that is intended, as in the
lessee’s covenants (13) and (14) cited above. It is impossible, therefore, to
construe the lessee’s covenant (2)(5)(b) as a covenant to contribute to the
cost of repairs to the roof, which is nowhere there mentioned. Although the
lease has obviously been carefully prepared, there is no other clause which
points in any way towards the lessee’s contributing to the costs of repairs to
be carried out by the corporation. But without a covenant by the lessee to
reimburse the costs, there is no commercial sense, so far as the corporation is
concerned, in the corporation’s binding itself by covenant to repair the roof
of the building; that would be wholly out of character for this type of
commercial lease. Moreover, the natural reading of the parcels in this lease is
that they include the roof in so far as the roof is over unit 6.
Accordingly,
for my part I would respectfully but without hesitation reject the learned
judge’s conclusions (a) that the roof over unit 6 was not included in the
demise of unit 6 and (b) that a covenant by the corporation to keep the roof
and the rain-water outlets in the roof in good repair and condition is to be
implied in the lease. On the contrary, I would hold that the part of the roof
which is over unit 6 and the rain-water outlet which is in that part of the
roof were included in the parcels demised to the lessee by the lease and are
therefore covered by the lessee’s repairing covenant in clause 2(5)(a) of the
lease. It follows that the grounds on which the judge gave judgment for the
lessee and dismissed the corporation’s counterclaim do not support his
conclusion. It follows also that the lessee was, when the roof collapsed, in
breach of its repairing covenant (5)(a) in that it had failed to keep the part
of the roof over unit 6 and the rain-water outlet in it maintained, repaired
and cleansed and generally in good and substantial condition.
I turn to the
lessee’s claim against the corporation in nuisance and negligence. On the facts
the corporation had possession of all the unlet units and of the parts of the
roof above them, including all the rain-water outlets in those parts of the
roof — by far and away the majority of the rain-water outlets. The corporation
had been clearly warned by their architects of the need to keep the outlets
clear and the roof clean, and clearly warned of the foreseeable consequences if
that were not done. Yet the outlets were allowed to get, and remain, blocked
up, and the foreseeable consequences followed. On the general principles laid
down in such cases as Sedleigh-Denfield v O’Callaghan [1940] AC
880 and Leakey v National Trust [1980] QB 485 I have no doubt
that the corporation is liable to the lessee in nuisance and negligence save if
and in so far as the corporation is absolved from liability by the lessee’s own
breach of its own repairing covenant in failing to keep the one outlet above
unit 6 clear.
The crux of
this appeal is therefore the interplay of the two liabilities.
On the facts,
the evidence established that by mathematical calculation if the one outlet
above unit 6 had been unblocked while all the rest remained blocked and if all
the water accumulated on the roof before it collapsed had been free from
debris, it would have taken four hours for the whole of that volume of water to
be cleared from the roof by the one outlet assumed to be unblocked. In truth,
of course, the water was not free from debris. If the one outlet only had been
unblocked at the outset, the water running away through that outlet would have
carried down to it further bird feathers and silt, and it would speedily have
been blocked up again. It would have had to be regularly unblocked again and
again for all the water to get away. Realistically, what was required to get
rid of the water and to avoid the collapse of the roof from the weight of the
water was that a good majority of the outlets in that half of the roof, not
necessarily including the outlet over unit 6, should have been unblocked. If
that be right, I would hold that the fault of the corporation in failing to
keep the outlets under its control clear was the major cause of the collapse of
the roof over unit 6; but the fault of the lessee in failing to clear the
outlet in the roof over unit 6 was not so trivial that it can on the facts be
disregarded as a contributory cause of the disaster.
What then is
the effect in law? At this juncture it
is natural to think of apportionment for contributory negligence under the Law
Reform (Contributory Negligence) Act 1945, since (a) apportionment of liability
in tort because of contributory negligence is the context in which questions of
apportionment of liability usually arise and (b) the decision of this court in
the case of Forsikringsaktieselskapet Vesta v Butcher (October 30
1987) was briefly reported in The Times newspaper under the heading
‘Power to apportion blame in contract’ only a few days before the hearing of
this appeal. It is to be remembered, however, that the 1945 Act has a very
limited function; it was enacted merely to override the archaic rule of the
common law, which had long been recognised as unjust, that if a plaintiff sued
in tort for damages for negligence his claim would wholly fail if it were shown
that he had been guilty of any degree of contributory negligence, however
slight, which was not de minimis. In the Vesta case this court
held that the 1945 Act applied, with the result that liability fell to be
apportioned under it, where a plaintiff, who had been guilty of contributory
negligence, chose to formulate in contract a claim against a defendant which
was in substance a claim in tort and could equally have been formulated as a
claim in negligence. That is not this case. But I find the Vesta case
helpful in this case for the following passage in the judgment of Sir Roger
Ormrod, which I would respectfully adopt:
. . . I remain
quite unconvinced that contributory negligence, as such, at common law had any
relevance in a claim in contract. Apart from one case, the word ‘contributory’
is not to be found in relation to contract. It is true, however, that in some
cases the rule of strict liability, eg in the case of common carriers or
innkeepers, was modified to take into account fault by the passenger or guest
but on the basis of causation. Had contributory negligence been a defence at
common law to a claim for damages for breach of contract the reports and the
textbooks prior to 1945 would have been full of references to it.
The context
of the 1945 Act, and the language of section 1, to my mind make it clear that
the Act is concerned only with tortious liability and the power to apportion
only arises where the defendant is liable in tort and concurrent liability in
contract, if any, ‘is immaterial’: see the passage in the judgment of Pritchard
J in Rowe v Turner Hopkins & Partners [1980] 2 NZLR 550,
cited in the judgment of O’Connor LJ at pp 18 and 19. In 1945 ‘contributory
negligence’ was one of the most notorious blots on the common law in relation
to claims for damages for negligence along with ‘common employment’, both of
which were targets for law reform after the war. The Act only applies to cases
in which, but for the Act, the claim for damages would have been ‘defeated by
reason of the fault of the person suffering the damage’.
In the present
case, the claim of the lessee against the corporation is a claim in tort —
nuisance or negligence, involving failure to take reasonable care to avoid a
foreseeable danger, but the corporation’s crossclaim against the lessee is not
a claim in tort at all; it is a claim in
not be formulated as a claim in tort. Therefore, in my judgment, the 1945 Act
has no application to the present case, since the breach of covenant on the
part of the lessee does not fall within the statutory definition of ‘fault’ in
section 4 of the 1945 Act, namely:
negligence,
breach of statutory duty or any other act or omission which gives rise to a
liability in tort or would, apart from this Act, give rise to the defence of
contributory negligence; . . .
More
importantly, however, for present purposes, the archaic and draconian rule of
the common law which the 1945 Act was passed to override also has no
application to the present case, since that rule had no relevance to a claim
in, or in my judgment to a breach of, contract which was not also itself
tortious.
The problem
which this court faces, on claim and counterclaim alike, is in my judgment a
problem of causation of damage. On the claim, the question is how far the
damage to its goods which the lessee has suffered was caused by the
corporation’s negligence notwithstanding the lessee’s own breach of covenant.
On the counterclaim, the question is how far the damage to the corporation’s building
which the corporation has suffered was caused by the lessee’s breach of
covenant, notwithstanding the corporation’s own negligence. The effect is that
on each question, apportionment is permissible. This is the same result as the
1945 Act would produce, but it is not reached through the Act, because the
obstacle which the 1945 Act was passed to override is not there on either claim
or counterclaim in the present case.
In making the
apportionment, I regard as particularly significant the number of outlets in
the relevant half of the roof for which the corporation and the lessee were
respectively responsible, and on a broad assessment I would apportion liability
as to 90% to the corporation and as to 10% to the lessee. Accordingly, I would
allow this appeal and vary the order of the judge by directing an inquiry as to
damages on the counterclaim in addition to the inquiry as to damages on the
claim which the judge ordered. I would then order the corporation to pay 90% —
and not the whole as ordered by the judge — of the lessee’s damages the subject
of the claim. I would order the lessee to pay 10% of the corporation’s damages
the subject of the counterclaim.
Agreeing with
the order proposed, CROOM-JOHNSON LJ said: I agree that the part of the roof
above unit 6 was included in the demise to the plaintiff. Counsel for the
plaintiff tried hard to identify the horizontal line in the roof where unit 6
ended and the general roof of the building began, but owing to the peculiar
construction of the building there was no such place. Moreover, the clauses in
the lease cannot be contradicted. The express covenant to repair by the tenant
makes it impossible to imply the covenant which the learned judge felt able to
imply. Accordingly the plaintiff is liable to the defendant for its breach of
covenant to repair but only to the extent of that part of the roof to which its
covenants applied, namely, the roof of unit 6 and the drainpipe and grille
which led from it. The calculation of the damages required consideration later.
I agree with
the analysis of the evidence in the judgment of Dillon LJ relating to the
effect of the seagull debris over the whole of the roof and the blocking of all
the grilles and drainpipes. Save for two units, the whole of the rest of the
roof (especially that half of it which included the roof of unit 6) and all the
other grilles and drains but one were in the occupation and under the control
of the landlord. The result was that the debris-contaminated water from the
landlord’s part of the roof all flowed down to unit 6 and helped to cause the
collapse of that part of the roof. The landlord knew well, from the letter sent
to it by its architects, that in those circumstances there was a risk of
trouble if it did not keep the roof and drains clean. The defendant had no
answer to the plaintiff’s alternative claim in negligence: see Hargroves,
Aronson & Co v Hartopp [1905] 1 KB 472. In that case there was a
building let off in flats, of which the plaintiffs were tenants of the top
flat. The landlords retained possession of the roof and of a gutter. The
landlords knew that the gutter was blocked, but did not clear it. When the top
flat was damaged by water flooding, the landlords were held liable in
negligence to the plaintiffs. In the present case, in so far as the defendant
was in control of most of the roof, the condition of which caused the flooding
of unit 6, it is liable in tort for the damages to the plaintiff’s goods.
How are the
two crossclaims to be treated? The Law
Reform (Contributory Negligence) Act 1945 would solve the problem if both
claims were in tort. After evaluating each claim, the court would apportion the
liability to pay damages to the extent which it thinks just and equitable
having regard to each claimant’s share in the responsibility (section 1(1)).
But the Act has no application if one of the claims is in a contract which does
not depend for its application on the discharge of the duty of care. Section 4,
the interpretation section, excludes from the scope of the Act any act or omission
which would not, before 1945, have given rise to the defence of contributory
negligence. Breach of a strict duty under a contract has never given rise to
the defence of contributory negligence. Therefore the 1945 Act has no
application, and the rights of the parties here must be dealt with accordingly
under the old law.
I should
mention that the defendant, in its counterclaim, alleged not only the breaches
of the covenants in the lease; it also put its claim in negligence and
nuisance. The learned judge did not deal with these alternative ways of
advancing the defendant’s claims. They can be dealt with very shortly. The
plaintiff was not guilty of negligence, because it would not have been
reasonably foreseeable that if its one grille and drainpipe became obstructed
on its own the result would have been the flooding of the whole roof. As for
the claim in nuisance, it did not (as was pleaded) cause the water to escape
‘into other parts of the building’.
If the 1945
Act has no application, what is the position on the two claims? The evidence clearly indicates that the
damage to the plaintiff’s premises was attributable to two concurrent causes,
both operating contemporaneously. One was the defendant’s negligence and the
other was the plaintiff’s breach of covenant. I agree with the finding of
Dillon LJ that simply as a matter of causation, based upon the amount of water
which was wrongfully on the roof, the plaintiff’s breach of covenant was a
factor of one-tenth of that united cause, and the defendant’s negligence a
factor of nine-tenths. If the collapse had been caused by the combined
negligence of the defendant and some third party, the plaintiff would have been
entitled to recover all its damages from the defendant, leaving it to get
contribution from its fellow tortfeasor: see Grant v Sun Shipping Co
Ltd [1948] AC 549 at p 563 per Lord du Parcq. But that does not
apply when the other cause comes from the plaintiff himself.
Take the
landlord’s claim in contract for the damage to its roof. Could it rely on the
covenant in the lease as entitling it to recover in full? For the same reason that would produce an
unjust result.
A tenant who
is in breach of his repairing covenant must pay for all the costs of repairs or
of the damage to the reversion. But the position is different if the covenantee
is the selfsame landlord who has caused nine-tenths of the damage to the roof.
It is not
possible, therefore, to allow both the claim and the crossclaim in full and to
set off the two awards of damages. Where one is dealing with two
contemporaneous causes, each springing from the breach of a legal duty but
operating in unequal proportions, the solution should be to assess the
recoverable damages for both on the basis of causation. The landlord will pay
for the nine-tenths of the damage which its negligence caused. The tenant will
pay for the one-tenth caused by his breaches of covenant.
I agree with
the order proposed by Dillon LJ.
CAULFIELD J
agreed with the reasoning and conclusions of Dillon and Croom-Johnson LJJ and
did not add anything.
The appeal
was allowed and the order below varied by directing an inquiry as to damages on
counterclaim in addition to inquiry as to damages on claims as ordered by the
judge. The defendant was ordered to pay 90% of the plaintiff’s damages, the
subject of the claim, and the plaintiff ordered to pay 10% of the defendant’s
damages, the subject of the counterclaim. The order as to costs below to
remain, appellant to have costs of appeal. Leave to appeal to House of Lords
was refused.
