Landlord and tenant — Implied covenant to repair under section 32 of Housing Act 1961 (since replaced by section 11 of Landlord and Tenant Act 1985) — Appeal by tenant from decision of county court judge holding that tenant’s claim under section 36(1)(a) of the 1961 Act on the ground of breach of covenant to repair failed — The facts were that the appellant was the tenant of a flat of which the local authority were the landlords and it was common ground that the tenancy agreement incorporated the covenants implied by section 32, in particular the covenant ‘to keep in repair the structure and exterior of the dwelling-house’ — One early morning when the tenant was away from home there was a fire in the block in which the flat was situated — In the course of their duties the fire brigade, finding that they could get no reply from the appellant’s flat, broke down its door (the only access) — The local authority as an emergency measure boarded up the door with thin plywood (the judge found it to be about a quarter of an inch thick) — The tenant later that day removed the sheeting temporarily to inspect the flat but replaced it, and nothing turns on this — About a week later the tenant (who had again been absent) discovered that the boarding had been removed and the flat had been burgled, a number of his possessions having been stolen — The tenant instituted proceedings against the authority — His claim was rejected by the county court judge, apparently on the ground that the authority were not guilty of any breach of duty but, as was pointed out by Slade LJ, the reasons for the judge’s conclusions were not altogether clear — The tenant appealed — Although the tenant’s claim was originally pleaded in both contract and tort, it was presented in the Court of Appeal as based entirely on a breach of the implied covenant under section 32(1)(a) of the 1961 Act — The tenant claimed (1) that there was a contractual obligation on the authority to repair the door and door frame within a reasonable time after receiving notice of the damage done by the fire brigade, (2) that the authority were in breach of that contractual obligation and (3) that the losses suffered by the tenant through the criminal action of the burglars were the foreseeable result of that breach and were not too remote — Held that there was clearly such a contractual obligation on the authority, but that there had been no finding by the judge, and no evidence on which the Court of Appeal itself could find, that the delay in replacing the door was unreasonable — Accordingly, the tenant had not discharged the onus of proving that the authority had failed to carry out repairs
The following
cases are referred to in this report.
Calabar
Properties Ltd v Stitcher [1984] 1 WLR 287;
[1983] 3 All ER 759; [1983] EGD 578; (1983) 268 EG 697, CA
Donoghue v Stevenson [1932] AC 562, HL
King v Liverpool City Council [1986] 1 WLR 890; [1986] 3 All ER
544; (1986) 84 LGR 871, CA
Smith v Littlewoods Organisation Ltd [1987] AC 241; [1987] 2 WLR
480; [1987] 1 All ER 710, HL
Stansbie v Troman [1948] 2 KB 48; [1948] 1 All ER 599; (1948) 64 TLR
226, CA
Weld-Blundell v Stephens [1920] AC 956
This was an
appeal by the plaintiff, John Morris, from a decision of Judge Naylor, at
Liverpool County Court, holding that the plaintiff had not established his
claim that the defendants, Liverpool City Council, the present respondents,
were liable as landlords for losses due to the burglary of the plaintiff’s flat
at 17A Cam Grove, Liverpool, after a fire.
Eric Somerset
Jones QC and Norman Wright (instructed by Yaffe Jackson & Ostrin) appeared
on behalf of the appellant; John Kay QC and Miss Tania Griffiths (instructed by
the City Solicitor, Liverpool City Council) represented the respondents.
Giving
judgment, SLADE LJ said: This is an appeal by Mr John Morris from a judgment of
His Honour Judge Naylor given on June 17 1987 in the Liverpool County Court. Mr
Morris was the plaintiff in the proceedings. The defendant, and respondent to
this appeal, is the Liverpool City Council (‘the council’). I will take the
facts of the case largely from the judge’s judgment and otherwise from the
plaintiff’s evidence, which the judge accepted in its entirety.
At all
material times the plaintiff was the tenant and the council was his landlord of
a flat known as 17A Cam Grove, Liverpool. It is common ground that the tenancy
agreement incorporated the repairing covenants implied by section 32 of the
Housing Act 1961. In January 1984, though the plaintiff was a tenant of the
flat, he spent very little time there because his daughter had been unwell and
he spent time looking after her home and her children. However, the judge found
that he paid regular, probably daily, visits to his own flat.
In or about
the early morning of Sunday January 15 1984 there was a fire in the block where
the flat was situated. In the course of dealing with the fire, the fire
brigade, finding that they could get no reply from the plaintiff’s flat, broke
down its door. He was not there. The judge found as a fact that the entry of
the fire brigade had effectively ruined both the door and its frame, rendering
it insecure. The door was the only means of access into the flat. The council
then put emergency measures into effect by boarding up the door with sheeting
which, as the judge found, was done by means of very thin plywood about a quarter
of an inch thick, fastened by a few inadequate nails.
Later on the
Sunday, the plaintiff heard of the fire, went to the flat and found that his
door had been sheeted up. He came back with his son-in-law. Together they
removed the sheeting to inspect the flat’s contents. They found at that stage
that his property was still intact. Having first tried to mend the door and
found this to be impossible, they replaced the sheeting, supplementing the
number of nails and not using the same holes in the plywood. They ‘clenched’
the nails over to prevent them pulling through the wood if efforts were made to
prise it away.
The next day,
Monday January 16 1984, the plaintiff telephoned the council’s office, asking
them to come and mend the door so that he could have access to the flat. A man
came round at about 4pm, but he did not repair the door and it remained sheeted
up as before.
The following
weekend, on the Saturday or the Sunday (January 21 or 22 1984), the plaintiff,
on calling at the flat, discovered that the boarding on the door had been taken
off and that the flat had been burgled. He found that he had lost a portable
television set, an electric fire, a dining-room suite, various bedding,
blankets and sheets, a washing machine, a kitchen cabinet and a dinner service.
He reported the loss to the police. The council came that night and boarded up
the door space with plywood nearly one inch thick, using on this occasion
six-inch nails and doing what the plaintiff in evidence called ‘a decent and
solid job’. The door and frame, as I understand, were eventually replaced in
toto on February 5. During the intervening period, of course, the
plaintiff had no way of getting into the flat.
On April 10
1985 the plaintiff instituted proceedings against the council. In his
particulars of claim he pleaded that it was an implied term of the tenancy that
the council would keep in repair the structure and exterior of the flat, and
alleged:
In breach of
the said term and/or negligently the Defendants failed to repair properly or at
all damage to the front door to the said flat.
The pleading
was thus based both on breach of contract and on tort and was founded simply on
the council’s failure to repair the damage to the front door.
The council by
their defence did not admit that the plaintiff was tenant of the flat, but this
is now accepted. They admitted that section 32 of the Housing Act 1961 applied
to the tenancy but denied any liability. In the alternative they submitted that
the plaintiff had not properly mitigated his damage or had contributed to it.
These latter submissions have not been pursued in this court; they were
rejected by the judge.
At the trial
the judge heard evidence from two witnesses only, namely the plaintiff himself,
whose evidence he accepted in its entirety, and Mr Peter Harrison, a housing
assistant employed by the council. Mr Harrison, who had been responsible for
the area for about 16 months, told him that burglary in the area was quite
common and, where property of the council was left unoccupied without their
being told, it was soon vandalised, sometimes within a day. His evidence was
that the plywood first put on the door to the flat by the council would more
probably have been about one inch thick rather than one quarter inch as
suggested by the plaintiff. However, on this point the judge preferred the
plaintiff’s evidence. As I have already indicated, he rejected the plea that
the plaintiff had failed properly to mitigate his loss or had caused or
contributed to it. However, in the event, he dismissed the plaintiff’s claim on
the grounds which he stated as follows in the last two pages of his judgment:
Thus, the real
question in this case, is whether the Corporation are to be fixed with
liability for the acts of third parties, namely the burglars, in the
circumstances of this case, it not being in dispute that the door formed part
of the exterior of the flat.
In the course
of her submissions, Miss Griffiths, for the defendants referred me to the cases
of Stansbie v Troman, King, Perl and Lamb and she
anticipated Mr Wright’s submissions on the Scots case of Evans v Glasgow
District Council reported in 1978 SLT at p 17. Mr Wright dealt additionally
with the Dorset Yacht case. Additionally, I have derived what help I can
from the case of Smith v Littlewoods [1987] 1 All ER 710. What
Miss Griffiths’ submissions come to is this: if there is a duty on the
defendants, either in contract or in tort (and she by no means admits that there
is) then their duty is simply to act reasonably, and this she contends they
did. Additionally, she asserts that if there was a breach of duty, then such
breach was not causative of the plaintiff’s losses.
Mr Wright in
reply says that it is clear that the tenancy here creates a contract, an
implied term of which was that the defendants would keep the structure and
exterior in repair. He says I should determine whether here the premises were
kept in repair, conceding that there had to be notice of disrepair. As the
defendants had notice — because they effected a temporary repair — I should
find the temporary repair was not reasonably adequate. As to his claim in tort,
Mr Wright sought to distinguish the various authorities, urging me to find that
none deals with the situation in this case.
I have thought
long and hard about this case, and about the authorities to which I referred
earlier. Some might think I have thought far too long, not least of all the
plaintiff, whom I have perhaps already indicated I found to be a thoroughly
decent, honest man, who, at his time of life deserves some recompense from the
courts for the activities of those who do so much to give this city a bad name.
Nevertheless, I come back, time and time again, to the words of the headnote to
this case of King in the All ER ‘In the circumstances, and having regard
to the fact that it was not possible for the council to take effective steps to
defeat the actions of trespassing vandals, the council did not owe a duty of
care to the plaintiff in respect of the damage caused by the actions of the
vandals’. I am, regrettably, unable to say that that which the council here
did, namely to use only one quarter inch ply was unreasonable, given what I
might call their ‘workload’.
In short, I
am not satisfied on the current state of the law that the defendants are liable
for the losses caused by the burglars
the judge’s
emphasis
and if I were
so satisfied I would not have been able to say that the defendant’s actions
were causative of those losses.
With respect
to the learned judge I think that the reasons for his conclusion as expressed
in the final passages of his judgment which I have read are rather hard to
follow. First, as appears from his citation
ER 544, that decision was based on the absence of a duty of care owed by the
Liverpool City Council to the plaintiff (in that case to prevent damage caused
by the action of vandals). However, in holding that the use by the council of
one-quarter-inch plywood was not unreasonable, the learned judge appeared to be
accepting that the council in the present case did owe a duty to the plaintiff,
but to be finding that the council were not in breach of that duty. Whether or
not that finding as to the absence of a breach of duty was correct, it does not
seem to me to follow from his reference to the King decision.
Second, I am
puzzled by the judge’s phrase ‘if I were so satisfied’ in the last sentence of
his judgment which I have already quoted. I do not see how the judge could have
been satisfied on the current state of the law that the council were liable for
the losses caused by the burglars unless the council’s actions were causative
of those losses.
It therefore
seems to me that in this court, albeit on the basis of the judge’s clear and
helpful findings of fact, we have to examine the legal position more or less
entirely afresh. It may well be that, with the assistance of leading counsel on
both sides in this court, the course of the argument may have been somewhat
different from that which it followed in the court below.
The recent
decision of the House of Lords in Smith v Littlewoods Organisation
Ltd [1987] 1 All ER 710 well illustrates that the law does not recognise a
general duty of care at common law to prevent others from suffering loss or
damage caused by the deliberate wrongdoing of third parties. Lord Goff
explained the reasons thus (at p 729C):
The
fundamental reason is that the common law does not impose liability for what
are called pure omissions.
He referred
(at p 729J) to the statement of principle by Lord Sumner in Weld-Blundell
v Stephens [1920] AC 956 at p 986:
In general .
. . even though A is in fault, he is not responsible for injury to C which B, a
stranger to him, deliberately chooses to do.
However, Lord
Goff proceeded (at p 730B) to say:
That there
are special circumstances in which a defender may be held responsible in law
for injuries suffered by the pursuer through a third party’s deliberate
wrongdoing is not in doubt. For example, a duty of care may arise from a
relationship between the parties which gives rise to an imposition or
assumption of responsibility on or by the defender, as in Stansbie v Troman
. . . where such responsibility was held to arise from a contract.
I turn to Stansbie
v Troman [1948] 2 KB 48, where the brief facts as stated in the headnote
were:
A contractor
carrying out decorations in a house was to his knowledge left alone on the
premises by the householder’s wife. During her absence, he left the house to
obtain wall-paper. He fastened back by its catch the latch of the yale lock on
the front door and closed the door behind him. That door was accordingly then
held shut only by its mortise lock, and could be opened by a mere turn of the
handle. During the decorator’s absence a thief entered the house and stole
property, the value of which the householder claimed from the decorator.
The county
court judge, after referring to Donoghue v Stevenson [1932] AC
562, had held that:
when the
decorator was left alone in the house, he was in a position to exercise control
over the access into the house and this put him in such a relation to the
householder that, in exercising such control, he ought to have had in mind the
safety of the householder’s goods which were in the house,
and had
therefore given judgment for the householder.
It was argued
for the decorator that no duty was owed, that the duty must arise from the
relationship between the parties, and that it must be a duty within the scope
of the contractual relationship existing between them. I agree that the duty
must be within the scope of the contractual relationship between these two
persons, but I think that that contractual relationship did impose a duty on
the plaintiff decorator to take reasonable care with regard to the state of the
premises if he left them during the performance of his work. That, I think, was
the measure of the duty.
Tucker LJ then
proceeded to consider whether there was a breach of that duty and he said (at p
51):
If I am right
as to the existence of the duty, I think that there can be no question but that
there was a breach of it, for I do not think that it was acting reasonably,
that it was taking reasonable care, to leave this empty house for a period of
two hours with the front door in that condition.
Tucker LJ then
proceeded to consider whether the negligence of the decorator was causatively
responsible for the householder’s loss. He quoted the dictum of Lord Sumner
from Weld-Blundell v Stephens [1920] AC 956 (which I have already
quoted) and said (at pp 51-52):
I do not
think that Lord Sumner would have intended that very general statement to apply
to the facts of a case such as the present where, as the judge points out, the
act of negligence itself consisted in the failure to take reasonable care to
guard against the very thing that in fact happened. The reason why the
decorator owed a duty to the householder to leave the premises in a reasonably
secure state was because otherwise thieves or dishonest persons might gain
access to them; and it seems to me that if the decorator was, as I think he
was, negligent in leaving the house in this condition, it was as a direct
result of his negligence that the thief entered by the front door, which was
left unlocked, and stole these valuable goods. Except that I would have phrased
the nature of the duty somewhat differently from the way in which the county
court judge put it, I am in entire agreement with his judgment, and in my view
the appeal fails.
On the basis
of the decision of this court in Stansbie v Troman it might
conceivably have been arguable on behalf of the plaintiff that, having regard
to the contractual relationship existing between him and the council, the
council owed him a general duty to make the flat reasonably secure against
intruders as soon as they were aware of the breaking down of the door by the
fire brigade. The plaintiff’s case, however, was not pleaded in this way and it
has not been presented in this way in this court. His case as argued in this
court by Mr Somerset Jones is founded exclusively on three clear and simple
propositions, which are substantially as follows.
First, there
was a contractual obligation on the council to repair the door and door frame
within a reasonable time after receiving notice of the injury to them done by
the fire brigade; second, the council were in breach of that contractual
obligation; and, third, the losses suffered by the plaintiff were the
foreseeable result of that breach and were not too remote in law to be recoverable.
The plaintiff
to succeed on this appeal thus has to surmount each of these three hurdles. Mr
Somerset Jones accepted that, if he could not succeed in contract, a
fortiori he could not succeed in tort and therefore, if I may say
realistically, did not pursue the alternative claim in tort.
As to the
first of these propositions, section 32 of the Housing Act 1961, which was the
statutory provision in force at the relevant time, though it has since been
replaced by section 11 of the Landlord and Tenant Act 1985, provides so far as
material as follows:
(1) In any lease of a dwelling-house, being a
lease to which this section applies, there shall be implied a covenant by the
lessor —
(a) to keep in repair the structure and exterior
of the dwelling-house . . .
It is common
ground that the door and frame of the flat were part of the structure and
exterior of the flat within the meaning of this implied statutory covenant. It
is also common ground that the effect of this implied obligation is to impose
on the landlord the obligation to effect any necessary repair within a
reasonable time after receiving notice of the want of repair: see Calabar
Properties Ltd v Stitcher [1984] 1 WLR 287 (at p 298G) per
Griffiths LJ (as he then was). The plaintiff therefore surmounts the first of
the three hurdles which I have mentioned.
It is the
second of them which, in my judgment, presents him with far more formidable
difficulties. Did the council in breach of their obligation fail to repair the
door and frame within a reasonable time after receiving notice of the damage
done to them? In contending that the
council were in breach of this obligation Mr Somerset Jones has not submitted
that they were in breach on the grounds that the temporary plywood barrier
erected by them was inadequate as a temporary barrier. His submission has been
that the only way in which the covenant to repair could be complied with was by
replacement of the whole door and frame and that a reasonable time for
effecting this repair had elapsed between the day when the council first had
notice of the want of repair and the following weekend, when the burglary
occurred without the repair yet having been done. He stressed that this was a
case where the door constituted the sole means of access to the flat and that
the plaintiff could not get into it until the door had been replaced. In those
circumstances, in his submission, a reasonable period for the doing of the work
would have been at most 48 hours.
However, as Mr
Kay pointed out on behalf of the council, the answer to these submissions lies
in the findings of the judge and in the state of the evidence. We have been
told that counsel appearing on behalf of the plaintiff submitted to the judge
both that it was unreasonable for the council to use one-quarter-inch plywood
in erecting the temporary barrier and that delay in replacing the door was
itself unreasonable. It is not entirely clear to me whether the judge was
intending to reject merely the first or both of these submissions as a matter
of fact when he said in the passage which I have already read:
I am,
regrettably, unable to say that that which the council here did, namely to
use only one quarter inch ply was unreasonable, given what I might call their
‘workload’.
What is clear
is that he made no finding at all that the delay in replacing the door
was unreasonable. This is a pure question of fact and on this point it
therefore becomes of crucial importance to look at the evidence which was
before the judge.
No evidence
was called on behalf of the plaintiff to establish that the period of delay was
in itself unreasonable. In the notes of evidence which the judge has approved,
the only relevant passage is to be found in the notes of Mr Harrison’s evidence
in chief in which he is recorded as having said:
Call out
service should have reported to someone they’d done an emergency sheeting.
Can’t say if did. Housing Office maintenance dept react. Take approx 1 week for
door and frame (to be fitted). Same, just a frame because of financial
problems. Sheeting is emergency top priority. No real deterrent been to a
forceable (sic) entry. We at one time tried welding a frame but it
didn’t work.
Though we were
told that there was some cross-examination of Mr Harrison, we have no notes of
this cross-examination. The notes of evidence are thus somewhat sparse, but we
have to do the best we can with them. I read Mr Harrison’s evidence, as
recorded in these notes, as being to the effect that the council could not
arrange for the replacement of the door and frame within less time than about a
week. So far as I can tell, the matter was not explored further in evidence
before the learned judge.
Though recognising
the scantiness of the evidence on this material point of fact, Mr Somerset
Jones submitted to us that the facts more or less speak for themselves. In his
submission, if the council could not arrange for the replacement of this door,
which afforded the only means of access to one of their tenants’ flats, within
less than a week, this shows on the face of it that their arrangements were
inefficient and inadequate. In his submission, the period of one week was on
the face of it unreasonably long, particularly in an area where burglary was
known to be rife.
I cannot, for
my part, accept this submission. It has to be stressed that the onus throughout
this case was on the plaintiff to prove unreasonable delay on the part of the
council, not on the council to prove the converse. If the matter had been
explored further in evidence, it may be that the plaintiff could have
established the point. However, it seems to me that, if it had been explored,
the reasonableness or otherwise of the delay would have depended on evidence as
to a number of imponderable matters such as the difficulty or otherwise for the
council in obtaining the proper size and quality of door and frame and also on
what the judge referred to as the council’s ‘workload’. Furthermore, in
assessing the reasonableness or otherwise of the period, it seems to me that
the court might have been entitled to take into account that the plaintiff was
not living in the flat at the time and that the council had already taken at
least some steps in an effort temporarily to secure the property.
In my
judgment, on the limited evidence before the judge and before us, as recorded
in the notes of evidence, it simply is not open to this court to make a
finding, not made by the learned judge, to the effect that the delay of a week
or less which elapsed between the council’s knowledge of the damage to the door
and the burglary was in all the circumstances unreasonable. Accordingly, in my
judgment, it has not been proved that, as at the date of the burglary, the
council were in breach of contract. Whether they became in breach of contract
because of the delay that ensued thereafter is not an issue in the present
proceedings. It follows that, in my judgment, this appeal must fail because the
alleged breach of contract on which it is founded has not been proved.
In deference
to Mr Somerset Jones’ argument, I would add that, if I had found that a breach
of contract had been proved, I would, for my part, have held that the loss
suffered by the plaintiff through the burglary was not too remote to be
recoverable. This conclusion seems to me to be supported not only by the
decision in Stansbie v Troman but also by the comments on that
decision in Smith v Littlewoods Organisation Ltd made by Lord
Mackay at 724 of the report of that case. It seems to me that if by the time of
the burglary, contrary to my view, the council had already been in breach of
their contractual duty to replace the door, they ought, in all the
circumstances of this case, reasonably to have foreseen that unauthorised
intrusion and theft might well result. As the judge found, burglary in this
area was, unhappily, ‘rife’ or ‘commonplace’.
As things are,
while I have some sympathy with the plaintiff in his ill fortune, I can see no
grounds in law for holding the council responsible for his losses and I would
dismiss this appeal.
Agreeing,
BALCOMBE LJ said: The plaintiff has based his claim in contract and relies on
the defendant landlord’s obligations under section 32 of the Housing Act 1961,
which was the statute in force at the relevant date. That section implies a
covenant by the lessor to keep in repair the structure and exterior of the
dwelling-house. The plaintiff further accepts that the landlord’s obligation in
this respect is not absolute. As Griffiths LJ (as he then was) said in Calabar
Properties Ltd v Stitcher [1984] 1 WLR 287 at p 298:
. . . a
landlord is not in breach of his covenant to repair until he has been given
notice of the want of repair and a reasonable time has elapsed in which the
repair could have been carried out.
The plaintiff
gave notice to the landlord of the damage to his front door on January 16 1984,
so the only question on this appeal is whether, before the burglary on January
21-22 (which is some five to six days later), a reasonable time for carrying
out the repair — ie replacing the front door and the door frame — had elapsed.
Unfortunately,
although we are told that this point was argued before the learned judge, it is
not expressly dealt with in his judgment. However, it seems to me improbable
that the judge, who had expressed great sympathy with the plaintiff, could have
decided the case in the way he did unless he was satisfied at the very least
that the plaintiff had failed to establish a breach of covenant by the
landlord, that is a failure to repair within a reasonable time. Further, the
notes of evidence on this point are sparse in the extreme. Slade LJ has already
quoted the passages from the evidence of Mr Harrison, the defendants’ housing
assistant, and no note of any cross-examination of Mr Harrison exists. I am
quite unable to say that the learned judge was wrong on this aspect of the case
and, in my judgment, the plaintiff failed to establish a breach of the covenant
to repair. If he had established such a breach, for my part, in reliance on Stansbie
v Troman [1948] 2 KB 48, as explained in Smith v Littlewoods
Organisation [1987] 1 All ER 710, I too would have been prepared to hold
that the plaintiff’s loss caused by the burglary was not too remote.
Mr Somerset
Jones, quite rightly, accepted that under this head of a failure to repair, an
alternative claim in the tort of negligence did not add anything. No claim was
pleaded by the plaintiff on the basis that the defendants owed him a duty of
care to make the premises secure pending the necessary repairs being effected
with the consequential liability in tort based on a breach of that duty. So I
make no comment on what might have been the result if such a claim had been
made, although I can see the difficulties there might well have been in the
plaintiff’s way of making such a claim.
I agree that
this appeal should be dismissed.
Also agreeing,
STOCKER LJ said: The appeal before this court has proceeded solely on the basis
that the loss sustained by the plaintiff appellant was caused by the breach by
the defendants of the repair obligations implied into the tenancy under section
32(1)(a) of the Housing Act 1961; that is to say that the repair to the door
was not effected within a reasonable time before the burglary which took place
some six days later.
The facts have
been fully stated by my lords. In my view, this appeal fails on that issue,
since there was no real evidence on the question of what was a reasonable time
for effecting the repairs in question. Mr Harrison, the housing assistant
employed by the defendants, said: ‘It would take approximately one week for a
door and frame to be fitted’ and ‘Same, just a frame because of financial
problems’. No note of any cross-examination of this witness exists. The
plaintiff himself did not call evidence on this issue and his own evidence is
critical of the temporary protective sheeting rather than the time taken to
effect the permanent repair. There was, therefore, in my view, no evidence to
establish that the defendants were in breach of the repair covenant implied
into the tenancy. Had a breach of contract been established I also agree that
the losses which were in fact sustained were probably recoverable for the
reasons given by my lords.
Accordingly, I
agree that this appeal fails and must be dismissed.
The appeal
was dismissed. No order was made for costs save legal aid taxation of the
plaintiff’s costs.
