Negligence — Surveyors — Whether defendant surveyors negligently carried out structural survey — Whether surveyor should have given a warning about dry rot
plaintiffs, Mr and Mrs Kerridge, made an offer of £145,000 for the purchase of
‘The Boltons’, a property near Ipswich; that offer was accepted — The
plaintiffs then instructed the defendant firm to carry out a full structural
survey of the property — On June 7 1985 Mr Thomas Gooding [ARICS] of that firm
surveyed the property and in his report recommended that the woodworm which he
found be investigated by a specialist company — A company called Waveney,
specialists in woodworm, dry rot and such treatment, inspected the property and
made a report — On August 27 1985 the plaintiffs completed their purchase of
the property at a price of £140,000 — The plaintiffs then carried out
considerable work to the roof and Waveney carried out treatment against
woodworm throughout the property — In 1989 dry rot was diagnosed as being
present in certain parts of the property — As a consequence further work for
the eradication of dry rot was undertaken at a cost of £90,000, plus fees of a
further £25,000 — In their action against the defendants the plaintiffs
contended that Mr Gooding did not advise as he should have done that there was
a real risk or a fair possibility or a probability that dry rot was present in
concealed timbers beneath the main roof and in timbers in the roof of the
entrance lobby to the house; if he had so advised, the plaintiffs would not
have bought the house and would therefore have avoided paying £140,000 for a
house which was worth little more than site value — Evidence was given of a
valley/parapet gutter, staining on the rafters and holes in the roof, which
justified an obligation on the part of a structural surveyor to give warning in
terms of dry rot
warning about dry rot or timber decay should be given just because a property
has a valley/parapet gutter, staining is seen on the rafters or there are holes
in the roof — Further evidence of the existence of a defective pipe was not
such as to cause a surveyor to give a warning about dry rot; they were not
negligent in warning that the roof of a utility room should be overhauled and
repaired and therefore not liable when that overhaul and repair was not done
sufficiently — In relation to a parapet wall, a surveyor doing a structural
survey does not have to remove stonework — Although the defendants in their
report did not mention the presence or absence of a damp-proof course, the
existence of a damp area was noted — The plaintiffs were not disadvantaged by
not being told that the structural surveyor could not find a damp-proof course
or that there was no damp-proof course because they decided to supplement the
existing damp-proof course, which they eventually discovered, with a chemical
one
No cases are
referred to in this report.
This was a
claim by the plaintiffs, Mr and Mrs Kerridge, alleging negligence in the
carrying out of a survey and the preparation of a report on the part of the
defendants, James Abbott & Partners.
Charles
Hollander (instructed by Allen & Overy) appeared for the plaintiffs;
Michael Patchett-Joyce (instructed by Mills & Reeve, of Cambridge)
represented the defendants.
Giving
judgment, JUDGE HORDERN QC said: This is an action by Mr and Mrs
Kerridge against James Abbott & Partners for negligently carrying out a
structural survey at a house called ‘The Boltons’, 2 Dalehall Lane, Ipswich.
In about
spring 1985 Mr and Mrs Kerridge were considering moving from their then
property in Ipswich to ‘The Boltons’, a property on a hill overlooking the
centre of Ipswich, but very much in the town of Ipswich. It was for sale for
£170,000. Having seen it and liked it, the Kerridges offered £145,000, which
offer was accepted. They then instructed the defendants (one of the partners I
think being a personal friend of Mr Kerridge) to carry out a full structural
survey. The defendants put Mr Thomas Gooding ARICS, an experienced associate of
the Royal Institution of Chartered Surveyors, on to the job.
It is common
ground that Mr Gooding was obliged to survey the property to the standard of a
reasonably competent surveyor exercising due skill, care and diligence and
possessing the necessary knowledge and experience. It is common ground that a
full structural survey in contrast, for instance, to a valuation for a building
society or a bank is at the top end of the types of survey which can be ordered
and involves the most detailed inspection of the property of any type of
survey.
Mr Gooding
carried out his survey on June 7 1985. I am satisfied on his evidence that he
actually dictated his survey report within a day or two afterwards, although
when typed it was dated June 14. Among other things, he recommended that the
woodworm which he had found in the property be investigated by a specialist
company. A company called Waveney (I call them that for short), who specialise
in woodworm, dry rot and such treatment, inspected the property and duly
reported upon it. In consequence of one or perhaps both of those reports, the
offer for the property was reduced to £140,000 by negotiation and in due course
contracts were exchanged — I think early in August 1985 — and completion took
place on August 27 1985.
In consequence
of the recommendations of Abbotts and Waveney, considerable work was undertaken
to the property, in particular a Stowmarket firm called Haymills stripped the
roof and the valley and parapet gutters in the roof (when I say ‘the roof’, I
refer of course to the main roof of the house). They also did pointing work;
they also did work to most, if not all, of the flat roofs of the property. In
addition, the firm that I have mentioned (Waveney) carried out a treatment
against woodworm throughout the property. It is noticeable that nothing amiss
was drawn to the attention of the Kerridges in the course of any of that work,
despite the fact that the work involved exposing the main roof (no doubt one
part at a time, but totally) and exposing the appropriate guttering to that
main roof and equally involved exposing at least the roof boarding and, in one
particular case as to the lobby roof, at least a part of the joists thereunder
when the refelting of those flat roofs was undertaken.
All went well
until 1989. At some stage early in that year it was noticed by Mr or Mrs
Kerridge, or both (it matters not), that a door lining which is at the entrance
to what has been called the mezzanine bathroom 2 on the plans before me suddenly
had a large blister in the paint work. By February 23 1989. Mr Christopher Howe
[MCIOB] took a number of photographs. Mr Howe of Fuller Peiser, a quite
well-known surveying firm, had been called in, not surprisingly from the
photographs that I have seen, diagnosing dry rot in the door lining which I
have mentioned. At the time that he inspected there was also an outward and
visible sign of the presence of dry rot in the roof of the lobby. That is shown
in photograph 49. The outward and visible sign there was the presence of the
fruiting bodies appearing in the cornice of the inside of that lobby.
As a result of
those matters, Mr Howe put in hand investigations, naturally to see the extent
of the dry rot. By about July 1989 arrangements had been put in hand for doing
that work and doing quite relatively extensive other work, both to the windows
in the house and to the stonework. It was hoped that what one might call the
messy parts of the work involved in eradicating the dry rot could be completed
in the three weeks on which it was planned that Mr and Mrs Kerridge should be
away on holiday. Unfortunately, as is frequently the case, upon undertaking the
works the dry rot was found to be very much more extensive and Mr Howe
thoughtfully arranged for a message to be taken to the Kerridges on their
return to the airport from their holiday explaining to them that they would
return to a house which was very much under seige from the builders. It
remained in the hands of the builders at least until Christmas 1989 and indeed
they, as it were, lingered on there, in the way that builders will, until about
March 1990. I am told the cost attributable to the
work which I think from memory (but I may be wrong) were put at some further
£25,000.
The
plaintiffs’ principal complaint is that the defendants, in effect for these
purposes Mr Gooding, did not advise as he should have that there was (and I put
it in the ways that it has been formulated by Mr Hollander) a real risk or a
fair possibility or a probability that dry rot was present in concealed timbers
beneath the main roof and in timbers in the roof of the entrance lobby to the
house. If he had so advised, the plaintiffs would not have bought the house and
would therefore have avoided paying £140,000 for a house which they contend was
in truth worth little more than site value, if indeed more than that at all.
There was
briefly a suggestion made, rather late in Mr Howe’s evidence, when he first gave
evidence, that Mr Gooding should actually have discovered the rot under the
main roof. That suggestion was resurrected flickeringly from time to time
during the case, but has, in my view, entirely and rightly been abandoned.
I should
perhaps for completeness explain my no doubt incomplete understanding of the
mysteries of dry rot. One of the difficulties is that it is an expression used
in two rather different senses. In one sense it is used to describe the fungus
which produces the effect upon the timbers. In another sense it is used to
describe the timbers themselves which are either undergoing or have undergone
the attentions of that malignant fungus. It is, as I have said, a fungus
exactly as an ordinary field mushroom. It has mycelium exactly as a mushroom
does, strands of generally white material which creep about the place in hidden
places normally, just as under the ground ordinary mushrooms or other fungi
have mycelium. In the right conditions that mycelium gives rise to fruiting
bodies. In the case of mushrooms that provides the ordinary things we get from
Waitrose and nowadays all sorts of different and strange ones even from Marks
& Spencer. In the case of serpula lacrimans, as the dry-rot fungus
is now called, the fruiting bodies are such as are seen in the photograph to
which I have already referred. Just as with mushrooms, fruiting bodies do not
necessarily appear very frequently, or do not necessarily appear at all. Just
as with mushrooms there are also spores, spores which I was told (but simply
told by the bar, I think, rather than by experts) are in fact all around us all
the time. It matters not how extensive they are. In the right conditions, of
course, they can develop into mycelium.
It is
important to bear in mind that, like any other biological object, serpula
lacrimans can die. It can be attacked by parasites. It can run out of the
cellulose in wood upon which it feeds. The conditions in which it survives can
cease to exist, in particular if the conditions in which it is become dry, then
it is likely to die. It can also become dormant. The evidence before me is that
recent work in Germany has shown that the mycelium can, perhaps exceptionally,
be dormant for eight years, although it was thought in this country (Mr Ronald
Wilde [FRICS], expert for the defendants, tells me) that about a year was the
limit of the time which it could be dormant. The difference between it being
dead and dormant is of perhaps less significance than one might suppose
because, of course, just as a flower can frequently breed either by seeding or
by multiplication by its roots, corms or whatever, so similarly the dry-rot
fungus can breed either from spores developing into new mycelium or from
dormant mycelium being awakened.
It is
necessary to describe, perhaps in a little detail, the areas with which this
case is concerned and, in my view, it is easiest to describe that by reference
to the sketch section prepared by Mr Howe. That is a section looking through the
centre of the house taken in the centre of the lobby and entrance hall as the
section drawing itself shows. It is of course a sketch only but is,
nevertheless, sufficiently exact to be very helpful.
At the upper
level the sketch is perhaps a trifle confusing because it shows the limits of
timber replaced rather than the actual timber which was decayed. If one looks
at the area marked ‘decayed wall plates, joists and lintel’ above the outline
of the bricked-up window, that consisted essentially of two pieces of timber
which were decayed. There had been in the east-facing wall of bathroom no 1, a
bathroom which it appears to me must at some stage have been carved out of the
bedroom which now adjoins it, a window which has been bricked up. No doubt (if
my recollection is correct) the bath would lie immediately under that window
and, indeed, if the outline of the window is correct the bath would actually be
some 6 in above the bottom of the window, it was necessary to take the window
out and reposition it in the north face of that bathroom. When that was done
the window was bricked up, perhaps at the same time, perhaps later, that part
of the house, together with most of the north-eastern part of the house, had
been entirely rendered. The lintel which had been in the fabric of the building
above that window was accordingly bricked up, plastered in on the inside and
rendered on the outside. It is perhaps hardly surprising that that lintel
rotted. The extent of its rot can be seen, for instance, in photograph 44. Immediately
above that lintel lay a part of the wall plate which formed the bottom timber
member of the valley gutter and the parapet gutter which drained to the corner
of the house where they met. That wall plate on the underside was attacked by
dry rot. It was not, it appears to be common ground, attacked in such a way
that the upper side of any part of that wall plate would have revealed the
existence of rot. That, in my view, must explain why Haymills did not see it
when they opened up the roof and the gutter.
I am satisfied
on the evidence before me that the rot in both the lintel and that wall plate
was by June 1985 in all probability dead, certainly at the very least dormant.
Mr Howe described the rot in the lintel which I have endeavoured to describe as
historic. He thought that the rot in the wall plate was at that time still
active, but that was very much an ex post facto type of judgment. He
based that on the fact that before that time the roof was not watertight and
after that the roof had become watertight. It seems to me that the strong
probability is that the rot on the underside of the wall plate was, as I have
said, equally dead.
I am equally
satisfied upon the evidence that I have heard that the cause of the rot which I
have described was the very obvious and simple one which Mr Wilde had
propounded, the one which one would expect, namely that at some stage the
valley gutter’s waterproof membrane, whatever it was composed of (probably
lead) had failed, had let water in and the rot had set in. If it was not that
it could equally have been that the lintel to which I have referred was bricked
up and buried, as it were, alive, that is to say in a state in which it had
sufficient moisture before being buried and therefore, having very stable
conditions indeed, it was ideal for the onset of dry rot. It matters not
whether the rot proceeded from the wall plate down to the lintel or vice versa
or perhaps both proceeded at the same time from the two causes I have
identified. I accept Mr Wilde’s view that the strong probability is that it was
a deficiency in the gutter since put right which led to that rot.
One of the
reasons, apart from Mr Wilde’s opinion for supposing that that is correct, is
that one gets an exactly similar, although less severe, situation in the
next-door valley gutter where the rot is marked ‘B’ on one of the plans that I
have. It seems to me that when one has a very obvious explanation staring one
in the face there is no need to look for very much more complex ones.
Turning to the
mezzanine level next, there was, as I have said, new rot in the door lining. On
the plan to which I have referred, the door lining in question is, of course,
not outlined in pink or washed in pink as being a timber which was replaced,
although naturally it was replaced, but it can be identified about an inch to
the right of the word ‘mezzanine’. There was, as I say, new and active dry rot
in the door lining, as I understand it in the stairs, in the floor of bathroom
2 and to some extent in the lobby roof.
In the lobby
roof from photographs and descriptions given by Mr Howe, he identified three
stages of decay. What he said about those three stages was: the oldest was in
the wall plate and a large beam which is in fact not acting as a wall plate,
but is just below. The second stage is the decay in the joist ends, which he
said he believed preceded Haymills’ work. It is apparent from photographs 28
and 29 that at some stage somebody replaced certainly two of the joists holding
up that lobby-roof ceiling. Mr Howe went on that the third stage, the plywood
(which may be seen in photograph 28 and was undoubtedly put in by Haymills) was
starting to soften and was heavily discoloured. He said that he thought that
had occurred since Haymills did their work. Clearly it must have. Neither
expert (and by that I mean those who are principally expert in dry rot), Mr
Howe or Mr Wilde, can ascribe particular causes to the rot in the door lining,
the stairs and the bathroom no 2 floor.
Mr Howe says
that it would not have taken three and a half years for the dry rot to travel
from the upper level down to the door lining where it first appeared. He was
quite clear about that. He deduces that the mycelium from the upper dry rot was
dormant and was triggered by some unknown cause leading it to be active again
and to spread down to the door lining and thence downwards into the stairs and
bathroom floor.
I had thought
from the cross-examination addressed to Mr Howe by Mr Patchett-Joyce that Mr
Wilde would say that, on the contrary, the rot had spread from the lobby roof
in through the bathroom floor to the stairs and to the door lining, but he did
not say that. He said he simply could not say what had caused the rot to the
door lining and the bathroom floor and stairs. It is clear that at one stage it
was very much in the minds of those concerned with this that there must have
been some leak or escape of water associated with the bathroom, the floor of
which, as one can see from the sketch section to which I have referred, is
roughly halfway up that door lining which first exhibited the rot.
I find on Mr
Howe’s clear evidence that he was told that there had been a leak which had
been rectified. Mr Howe was a meticulous man. I do not believe that he would
have written the letter at p 63 of bundle D (starting at p 62) and do what he
did if he had not been told that. But Mr Hollander points out to me that that
is entirely hearsay and that Mr and Mrs Kerridge both say, and I feel sure that
when they were saying it they believed it to be true, that there had been no
leak.
I confess
that, so far as Mr Kerridge’s evidence on this point is concerned, I do not
feel able to place very much store on it. It is not meant in any way to be a
criticism of him. He was at the time the chairman of a large public limited
company and no doubt in that extremely busy and responsible position was not
too concerned with domestic details. It was apparent that he could not really
remember whether he had had the outside of the house, the windows of it,
painted shortly after moving in or not. I am satisfied that he had not,
although his immediate reaction when I asked him was that he had. What really
leads me to feel that I cannot place a lot of reliance on his evidence is that
it was quite clear that when he was asked anything whatever about a domestic
detail he looked at his wife at the back of the court. Whether it was apparent
to counsel that his wife each time either shook or head or nodded to give him
the answer required, I do not know. It was apparent to counsel that Mr Kerridge
was looking for the answers, but I do not know whether it was apparent that he
was actually being given them. It was very apparent to me.
Be that as it
may, it seems to me that it is probably right for me simply to accept the
expert’s evidence that the cause of this new and active dry rot is unknown.
However, I do feel that I am in a position to make findings without any real
shadow of doubt, that the cause was something which was post-1985 and that the
attack had not spread from the roof. I accept Mr Wilde’s reasoning about that
and, indeed, Mr Howe’s own evidence is, in effect, that it could not have,
because on his own evidence at all material times since about November 1985 the
roof and the associated gutters had been entirely watertight and had therefore
not provided the necessary source of moisture for the onset or the reawakening
of dry rot. I am also clear that the attack which was live and new in 1989 in
the lobby roof had spread from the bathroom and not the other way about.
That leads me
to the central level. The central level is the roof of the mezzanine bathroom.
I have not had a great deal of evidence about that because it is not suggested
that Mr Gooding, although he is criticised for not inspecting that roof, should
have warned that there might have been dry rot present there. It is quite clear
from photograph 71 before me that there was a very decayed old timber, which
appears to me to have been a redundant wall plate at the eastern end of that
roof. It is equally clear that new joists had at some stage been put in that
roof above that old decayed wall plate or whatever else it was and very close
to it. I am satisfied that that very rotted wall plate was in 1985 dead and
that the area above it does not appear to have been affected by the spread of
rot from that wall plate.
Mr Gooding, as
I have already noted, said that he could not inspect this roof and, as I say,
it is not suggested that he should have given any warning directly related to
this roof and it is therefore not really necessary to go further into the
aetiology of this particular piece of rot. Lest it is unclear what I mean by
the ‘central part’, I mean the bit which is at about 8 o’clock from the words
‘outline of bricked up window’ on the sketch section.
That brings me
to what is, in my view, the central question in this case. Should Mr Gooding
have given any warning in whatever terms about dry rot? In parenthesis I should say that the
preponderance of expert opinion on this matter was that surveyors should on the
whole avoid in their actual finding using the words ‘dry rot’, partly, I think,
because they are frightening to those who hear them, in the same sort of way
that cancer is frightening and partly because the words ‘timber decay’
embracing both wet rot and dry rot are thought to be more appropriate.
On this matter
there is a direct clash of opinion between Mr Howe on the one side and Mr Wilde
and Mr Riden Hawkins [FRICS] on the other. It is somewhat invidious to compare
experts, each one of which clearly has a very detailed knowledge of his subject
and each one of which I am quite satisfied was doing his best to assist me to
the best of his ability. I have to say that I think that Mr Howe’s very close
attention to detail — and he is clearly, in my view, a man who is much taken up
in the minutiae of the things with which he is dealing — in my view tends to
cloud his perception of the whole picture and while it is pressed upon me that
he is in a better position to make decisions about what occurred and the
correct deductions to be made than the others because he was aware of the
facts, I confess that it is my view that his intimate association with the
facts and progress of events is in truth a disadvantage to him in giving expert
evidence before me rather than an advantage because I think that, try as he
might, and I am sure he tried very hard, he was really unable to exercise that
detached judgment which is the most truly vital attribute of an expert.
Turning to Mr
Wilde, I am in no doubt that in relation to dry rot itself he was the most
knowledgeable of the three experts who have given evidence before me. He had
his experience with Protim to assist him, but he also had lengthy and very
relevant experience as an ordinary surveyor in practice in High Wycombe, where
he is now the senior partner of his firm.
So far as Mr
Hawkins is concerned, I hope he will not think it disrespectful to him if I say
that he seemed to me to be the archetypal ordinary everyday, in my view,
entirely competent surveyor. He said that he was looking at 1,000 properties a
year. If he meant by that that he was actually doing survey reports on them, I
cannot help feeling, although I did not think of it at the time, that there
must be an element of hyperbole, for that would mean an average of about four
surveys every day of the week throughout the year. However, I am satisfied that
he is what one might call a working, on the ground, surveyor with a good
knowledge of what goes on when you really go round the house.
I think it
will be apparent from what I have said that having considered the matter (I
hope with every care) I unhesitatingly prefer the evidence of Mr Wilde and Mr
Hawkins to that of Mr Howe. That is emphatically not because there are two of
them and only one of him. Nor is it entirely because of my assessment of their
various qualities which I have just endeavoured to give. It is because of what
they said. For saying that a warning should be given Mr Howe relied essentially
upon the following. First, the type of construction, that is a roof with valley
gutters, parapet gutters with the water in effect not draining outside the
house, but draining within the envelope of the house, a situation inherently
more likely to allow the ingress of water. Second, he relied on staining on
rafters and he coupled that with holes in the roof.
Mr Wilde’s
view of matters was this. He said:
I am very
puzzled about the staining as I have seen it on many old peg tiled roofs. I
believe that it does not indicate the amount of water necessary to create a dry
rot problem. Its very widespread nature suggests too much of a coincidence that
there should be dry rot at one end and not elsewhere where the rafters are
stained. I don’t believe that the inside of the roof would cause most competent
surveyors to feel that they must give a warning about dry rot.
He made it
clear later that the surveyor (he agreed in cross-examination) would see
staining and know that the roof was not watertight.
I don’t
believe a competent surveyor would then ask himself if there was dry rot. I’ve seen
hundreds of reports recommending stripping and re-tiling a roof and I don’t
think I’ve seen one warning of dry rot unless there is something more specific.
Mr Hawkins
gave evidence to a similar effect. He summarised it at one stage by saying:
I have given
the staining some thought. It’s obviously been caused by some moisture. Why it
should be white, I don’t know. It’s usually some shade of brown. I would have
spot tested it with a moisture meter. I would have been surprised in a roof of
that age with no felt to find no staining. The roof is exceptionally well
ventilated and I would not necessarily expect a reading on a moisture meter.
A little later
he said:
To my way of
thinking there was no evidence to suggest that there was concealed dry rot.
That really
summarises his view of the matter.
At first I
thought there was a complete clash between the experts, for when giving
evidence Mr Howe had not mentioned that to me,
quite understand that Mr Patchett-Joyce had a great many things to
cross-examine him about, but he had not mentioned that staining of the sort
which he relied on was very common. I recollect that I had suggested to him
that valley gutters between roofs were an extremely common feature of houses of
this period, in particular, of course, of terraced houses in cities such as
London. He agreed that that was so, but even then I did not get any impression
that staining such as was apparent on these rafters was anything other than
exceptional and was therefore a powerful indication that there might be rot in
the wall plates. The mechanism for that was said to be water making its way
through the holes in the roof, running along the battens which hold the pegs
holding the tiles until it would reach a rafter and then running down the
rafter until it reached the wall plate on which the rafter rested.
Mr Howe
explained, and Mr Wilde agreed, that because of the ventilation available on
the top side of the wall plate, rot would not take place there, but if the wall
plate became sufficiently saturated the rot might take place in the
unventilated underside of the wall plate. Mr Hawkins’ view, I am bound to say I
would have thought as a perfectly uninstructed layman (but it does not matter),
had a good deal to be said for it — that one would see in those circumstances
rot on the upper side of the wall plate — but he acknowledged that greater
experts than him thought otherwise and I accept what the greater experts say.
So that appeared
to be the situation. For a number of reasons I invited Mr Hollander to recall
Mr Howe if he wished to do so and when he did take advantage of that it became
quite apparent that Mr Howe entirely agreed that a sign of water running down a
rafter would normally be brown. He explained that salts from the old tiles
would have been deposited in the course of the water running down the rafters.
What struck me was that he entirely agreed that staining of this sort was
extremely usual. He said:
I agree that
very, very many thousands of properties of this type have such evidence of
staining. I agree . . .
— he said in
answer to a question from Mr Patchett-Joyce —
. . . that it
would be very surprising not to find staining in the roof.
It seems to me
that the experts are really not so very far away from each other. In my view,
it cannot be right that a dry-rot warning, timber-decay warning if one likes,
should be given just because there is a valley/parapet gutter, there is
staining on the rafters and there are holes in the roof. I am in no doubt that
that would blight at least hundreds of thousands and probably millions of sound
properties in this country and it would do the purchasers no service whatever
to be put off houses which might be entirely sound and, although no duty is
owed to vendors by a surveyor who is surveying on behalf of a purchaser, it
would be very unfortunate from the point of view of vendors, who might find
themselves having to do entirely unnecessary opening up of considerable
proportions in order to prove to other purchasers or to the instant purchaser
(the one who is on the go at the time) that there really was no dry rot.
I should say
in relation to the expression ‘holes in the roof’, there has been some
discussion. It is associated to some extent and conveniently dealt with in a
question which Mr Hollander presses me to regard as very important, which I
persist in regarding as rather a minor issue, namely did Mr Gooding go into and
see the western end of the roof space?
I am quite
clear for a number of reasons that the holes in the roof were the sort of small
cracks, apertures, which one finds in old roofs and which would have been
entirely undetectable even with binoculars from ground level. Incidentally, I
think that the eastern pitch of the main western section of this roof, in which
it is most important from the point of view of the plaintiffs to find holes,
was not actually visible from the ground at all, if my recollection serves me.
Be that as it may, I am satisfied, as I say, that there were not holes in the
sense, that was rather dramatically illustrated by Mr Wilde, of seeing a
derelict barn with holes the size of your fist or more in its roof. The holes
were small interstices, I am quite sure, which could be seen only from the inside
of the roof.
Mr Gooding’s
evidence about this was to this effect: he said he was being asked about it. Mr
Hollander says, very frankly, that it occurred at a late stage and that perhaps
Mr Gooding had not been into the western end of the roof. It seemed to me, if I
may say so with respect, that idea, as it were, grew on what it fed on. Mr
Gooding’s evidence was:
I agree
there’s a tank room. I think I would have got there by my own ladder.
He was asked
whether he remembered much about it and he said:
Other than a
few holes in the roof, I can’t remember much about it.
He was then
asked, as it happened from a typed copy of his notes which is slightly
misleadingly typed, about what he had noted and he said, referring to that:
I think part
of this refers not only to the tank room, but I think it refers to the main
roof space.
He noted, as
was the fact, that he had actually written ‘worm in rafters’ or words to that
effect twice. He said:
I do have a
recollection of going into the whole of the roof space. I am sure of that
because I refer to holes in the roof and I couldn’t have seen that in the tank
room as the roof there was boarded in.
He was asked,
and Mr Hollander pressed him perfectly properly about what was his
recollection, what documents and being in court and so on had made him remember
or made him think. Such questions are frequently asked, they are perfectly
proper, but I always think that almost any witness must find it virtually
impossible to answer because to sort out in your own mind what you remember
yourself from what you remember from having your memory refreshed by something
or some document or other event more recently is virtually impossible. What he
did say was:
I can
actually remember seeing holes in the roof. I have a recollection of the light
coming through the roof.
Mr Gooding was
a diffident witness. I think he was a frightened witness, but I think he was a
truthful witness. I think he did go into that roof space and, with the greatest
respect to Mr Hollander, I think that most of the many points that he put for
suggesting the contrary were little more than debating points; some, for
instance, were based on the misapprehension that that was a different room and,
therefore, would have been described differently and would not just have come
under the general heading of roof space as it clearly did in the original of Mr
Gooding’s notes.
Another point,
I take slightly at random because they were very many and varied, related to
the part of the report which says that the roof apparently has no insulation.
It appears to me enormously the most probable explanation of the present
relatively new-looking insulation in the main western part of the roof space
that that was put in by Haymills. Whether it appears in any of their documents,
I am not sure, but that seems to me immensely the most probable. The
explanation for the word ‘apparently’ is, I think, obvious although no doubt Mr
Gooding could not really think of it. He saw that the main part of the roof
space at the western end had no insulation, but so far as the tank room, the
eastern end of the roof was concerned, he could not know whether it had
insulation or not because it was fully floored as the ceiling was fully boarded
at the time. He therefore said that the roof ‘apparently’ has no insulation,
allowing for the fact that the tank room might in fact, unknown to him, have
been insulated. I personally think that the use of the word ‘apparently’ there
actually supports the view that he did go into the western end of the roof
space. But, as I say, I base myself on accepting that he could actually
remember seeing holes in the roof:
I have a
recollection of the light coming through the roof.
In relation,
therefore, to the matter of a warning of rot in the concealed timbers beneath
the roof, I am quite clear that a reasonably competent surveyor from what he
could see at the time would not have given him concern.
Turning to the
lobby roof, again Mr Howe relies effectively on three things. One is the
defective rainwater-quality pipe, which he says must have been leaking,
photographs 73 to 75. The defect identified was that it was the
rainwater-quality pipe and it was running virtually horizontal, though I am
satisfied on Mr Hawkins’ evidence that in fact it had a slight fall in the
correct direction, but it was virtually horizontal. Second, he said, open
joints in the coping below that forming the top of the parapet wall around the
lobby roof. Third, defective pointing of the parapet.
As I
understood Mr Howe’s evidence, he relied on the combination of those three
things. He did not suggest, as I understood it, that if one or two of those
three things had been absent, that a warning should be given simply if one of
them was present. As to the pipe, I find that it had not been leaking
significantly between 1985 and 1989. I find that on Mr Howe’s own evidence. If
it had been leaking significantly, in my view, it is quite impossible to
suppose that there would not have been staining on the coping beneath it and
the sort of staining which is characteristic around the edges of a joint which
has been leaking. If it had not been leaking significantly between 1985
and 1989 there is no reason whatever to suppose that it was leaking
significantly before.
This pipe
carried bath water. The bathroom in question was bathroom 1, the en suite
bathroom to bedroom 1. No doubt the owners of the house very regularly used
that bathroom. It also carried water from the basin, I should say, but one
doubts whether they had more than one bath each per day, so that one has a
maximum of about 60 galls of water passing in two goes down that pipe each day
and if it was leaking, contrary to my view, I think the leak must have been of
very, very small proportions.
So far as the
open coping jointing is concerned, there is, in my view, no real evidence that
at the time that joint was open. There are references in Mr Gooding’s report to
joints in coping stones, but not at this position, as I understand it. The fact
that he may make a general reference to that does not mean that the coping
stone was necessarily afflicted by an open joint at this point. But let us
assume, nevertheless, and I bear in mind Mr Hollander’s complaint that if Mr
Gooding’s report was incompetent that in effect deprives the plaintiffs of
evidence which they should have had, the benefit of his report. I am bound to
say that I think the reason that the plaintiffs find themselves in difficulty,
the fundamental reason, is that nothing whatever was suggested against Mr
Gooding’s surveying for three and a half years after he had carried it out.
Be that as it
may, let us assume that there were open-coping joints. So far as the pointing
is concerned, it is suggested that the pointing must have been defective,
because in 1989 elf cup fungus, happily not a malignant fungus, I understand,
was found in a joint or perhaps a joint and a half of the mortar at the
northern end of the parapet wall, which lies at the east side of that lobby
room and it was suggested that, since Mr Gooding noted that there was defective
pointing, there must have been defective pointing in that parapet wall at the
time. One only has to say that to see that it does not follow. Mr Gooding in
fact recommended that such repointing as was necessary should be done. It is
clear that Haymills did not think it necessary, in my view, to repoint the
place where the elf cup fungus appeared, but it seems to me that it is very,
very far from proved that there was anything wrong with the pointing apart from
that which was generally pointed out by Mr Gooding in 1985.
The result is
that in respect of that also it seems to me it would have been quite wrong,
positively wrong, for Mr Gooding to give a warning such as that which is
contended for by the plaintiffs. I accept the opinion which Mr Wild gave in
relation to this, that this is not the kind of defective pipe that would cause
a surveyor to give a warning about dry rot. He was asked to consider the three
things together. My note reads if one has: (1) leaky pipe, (2) open coping, (3)
bad pointing, his answer was:
I don’t think
a surveyor would have given a warning about dry rot.
It follows
from what I have said that the principal claim of the plaintiffs in relation to
dry rot must fail. I have to say in conclusion on this part of the matter,
which is the main part of the case, that I confess that it seems to me that in
the pleadings the true nature of the plaintiffs’ claim as to dry rot really
resembles rather closely the dead dry rot in the house, that is to say, it was
undetectable.
I turn to
other matters. There are certain areas of wet rot of which complaint is made.
The major one, I think is, first, underneath the lobby and on the sketch
section, to which I have referred, one can see a portion of timber which has
been replaced in the entrance hall just beside the lobby. It is apparent from
the plan that, of course, a larger area had to be replaced than is simply
apparent from the sketch section.
The
defendants, by Mr Gooding, advised of rot in the cellar wall plates and joists.
They did not say exactly where it was and it is perfectly true they did not say
‘you ought to have it seen to’, they simply advised that it was there. The
plaintiffs, having a good deal of work done to the house perfectly sensibly,
and it is not intended as a criticism, decided not to deal with the cellar rot,
on which they had been advised. It is not at all uncommon to find rot in a wall
plate or a joist in a cellar. The position is beneath any damp-proof course
which a house may have and is obviously vulnerable to damp from the outside. In
my view, the defendant did all that he was required to do in alerting the
prospective purchaser to the presence of that wet rot and it appears to me that
I have had no evidence that it would have spread very much in the years since
the purchase and, as it seems to me, in 1989 the Kerridges had the work done to
eradicate that rot which they would otherwise have had to have done
substantially in 1985.
The next
position was the utility-room roof. In relation to that, again, the defendants
drew attention to a crack in that roof. They said that that roof and others
should be overhauled and repaired. Mr Gooding’s advice in that regard was
accepted. But it appears that it was not overhauled or repaired sufficiently. I
cannot see that the defendants are liable in relation to that.
There are two
other areas marked ‘E’ and ‘J’ on the plan. ‘E’ is dealt with by Mr Howe in his
report or proof of evidence for this case. Virtually no questions, I should
say, were asked of any witness about this area or indeed about area ‘J’. What
he said was:
A small area
of pitched roof located in this position was discovered to have wet rot in the
feet of the rafters and wall plate. When the adjacent stonework embellishments
to the parapet walls were removed it enabled an inspection to be undertaken of
part of the concealed roof structure. It was at this time that the decay was
seen and it was necessary to remove and replace the affected timber.
That
particular allegation is reflected I think or may be (I am not quite sure) in
para 9(iii) of the statement of claim. That paragraph says:
The poor
condition of the stonework, bedding joints and pointing to the flat roof
parapet at the rear of the property required further investigation of the
adjacent roofing timbers which could have been exposed by removal of the
stonework surrounding the parapet.
It seems to me
common ground as well as common sense that a surveyor doing a structural survey
does not have to remove stonework and I can see no allegation that he should
have recommended its removal from anything that he saw. In my view, that
allegation is simply not made out on Mr Howe’s own evidence. I do not remember
any question about that area being addressed to any one of the defendants’
witnesses, although I may be wrong in my recollection about that, but I am
quite clear that that allegation too is unfounded.
That leaves
only item ‘J’. That, I think, is an even more neglected item than item ‘E’. In
Mr Howe’s own description about that it seems that there is a paragraph
relating to that which somehow crept into it which should not have, and frankly
I do not think I have enough information to come to any conclusion whatever
about that area.
Turning to
things other than rot-associated complaints, by far the major complaint relates
to the windows. Here I am urged to say that, since Mr Howe is the only person
who has seen the windows before they were repaired, his opinion must be
accepted. He says in effect:
From their
state when I saw them in 1989 it must be the case that they could not have been
in reasonable condition as they were reported to be three and a half years
earlier in 1985.
That is a
deduction which he makes. It is a deduction which is effectively contradicted
by the evidence of Mr Gooding, Mr and Mrs Kerridge and of the surveyor who
surveyed for Lloyds Bank. It seems to be agreed that one should paint windows
roughly every three or four years (agreed among surveyors at any rate). I
suspect householders regard that as unduly frequent, but I am not sure. Suppose
that to be so. One would expect the windows to be in reasonable condition
having been painted three or four years before 1985. If they are then left for
another three and a half years it seems to me there is every possibility that
they would then have deteriorated to the state in which Mr Howe saw them,
particularly if, as illustrated in at least one photograph before me (I think
only one photograph before me) some windows had not merely had cracks in the
progressively drying putty, but that some of the putty had actually fallen off.
If that happens, of course a window will deteriorate very quickly. I am not
satisfied that the windows were in a different condition from that described by
Mr Gooding. I think they were probably in the condition which he described.
Great
complaint is made about the damp-proof course. There is no doubt that Mr
Gooding should have said something about a damp-proof course. He should either
have said that there was none or that he could find none or something about it.
The condition of the house at that time was such that it is perhaps not
altogether surprising that he did not know about the damp-proof course. If one
goes round the house from the west, which is effectively the front of the
house, the west consists largely at ground floor of two large windows. My
recollection from seeing it is that each window has a flowerbed immediately
under and in front of it. When I inspected, on Tuesday before last, it was
quite apparent to me in respect of the drawing-room window (I do not think I
paid such close attention to the other window) that the earth immediately
beneath the window had been
condition the earth virtually touched the place where the damp-proof course
ran. It was certainly within about half an inch of the damp-proof course all
the way along. I am entirely satisfied that if the earth were left in its
natural state and condition there and not carefully dealt with in that way by
the gardener who no doubt has been instructed to do it (I do not necessarily
mean instructed to do it for our benefit, but instructed to do it so as to keep
the damp-proof course clear of the garden level) if the earth had, as no doubt
under the previous owners it had, found its own natural level, the damp-proof
course on the western side would have been at least an inch and perhaps two
inches under the level of the ground.
On the
southern side of the house it is rather surprising. The damp-proof course is
very much higher. It is four or five brick courses above the level of the
ground there. It did not appear to me to be a wider strip of mortar than other
strips and it seemed to me to be surprisingly hard to me. On the eastern side
of the house either paving stones or concrete had evidently (this is a source
of complaint) bridged the damp-proof course, but that means of course that the
damp-proof course there was necessarily invisible. Likewise on the northern
side of the house beside the drawing-room there was a plinth. Complaint is made
that that breached the damp-proof course, but in doing so it made it invisible,
of course, and further to the east of the house towards the rear, the other
side of the lobby, that whole part of the house is entirely rendered up to the
roof, so, again, the damp-proof course would have been invisible. But that does
not excuse Mr Gooding from saying, ‘I couldn’t find a damp proof course. I
don’t know whether there is one’ or, alternatively, ‘so far as I know there
isn’t one’.
What he in
fact did in relation to damp was to say that there is a damp area in the lobby
and there is a damp area in the drawing-room, so that he drew attention to
those. He gave his opinion that it was not excessive and was in effect —
summarising what he said — nothing to worry about. I exaggerate slightly what
he said. He said he did not think dampness, by which it is clear he was meaning
rising damp, would be a problem in this house.
Taking the
house as a whole I see no reason to disagree with that opinion from what I have
been told in evidence. The new owners, Mr and Mrs Kerridge, chose, no doubt
entirely sensibly, to supplement the existing damp-proof course, which they may
by then have discovered, with a chemical one. Perfectly sensible, but, as it
seems to me, that is precisely what they would have done if they had been told
either ‘I can’t find a damp proof course’ or ‘there is no damp proof course’. I
cannot see how they are in any way disadvantaged by not being told that.
There are then
roof defects which the defendants, by Mr Gooding, failed to notice. There were
two ‘V’ cuts in the jack rafters at or very close to the south-western corner
of the roof, the result of one ‘V’ cut being that the rafter had a slight bend
in it indicating that it was overstressed. Minor works were necessary to put
that right. Mr Gooding should undoubtedly have seen it. Mr Hawkins said it was
not altogether surprising that he had missed it. The only difficulty about it
is that it seems to me that, although minor matters were necessary as a
precaution, frankly there was almost certainly nothing whatever wrong with that
jack rafter, despite the fact that there was a ‘V’ cut in it. It was said that,
because it was overstressed, the gable end that it was assisting in holding up
might be vulnerable to high winds, for instance; but it is noticeable that
during the time that it was undiscovered that building (and this was its
south-west corner) must have taken the full brunt of the highest winds this
country has known for over 200 years in 1987. It stood very much on the top of
a hill overlooking Ipswich, and I believe that I am entitled to bear in mind my
own knowledge of the devastation which that hurricane caused in that part of
Suffolk.
The next thing
that is complained of is the narrow joists. Again, they have had a strap put on
them. I do not accept that they were a defect at all.
The last of
the roof defects is related to a defective purlin. The purlin on the east side
of the western span of roof had a joint between two of its collars. That is
illustrated in the photograph before me, photograph 38. It is apparent from
that photograph (as I think Mr Wilde and/or Mr Hawkins or one or other of them
noted) the joint there has not opened up at all. It is held together with at least
one very large nail if not two. Though one cannot see them in the photographs,
they were apparent on inspection and, as it seems to me, the deflection which
has taken place in the roof timbers which are supported by that purlin, so far
from being severe, as Mr Howe described it, is really no doubt noticeable, but
very little, it is at most apparently 2 1/4 ins.
Mr Wilde
remarked that is all very well, but nobody has suggested that there is more
deflection there than there is in other spans of purlin. Again, it seems to me
that, whether or not Mr Gooding might have mentioned that as a matter of
interest, it is not a defect which he was obliged to note.
Last, we come
to the air bricks. I have no idea how many new air bricks were put in. It is
apparent that some air bricks were enlarged. It seems to me that when
considering whether a surveyor is negligent in not saying that there should be
more air bricks or larger air bricks, the thing one wants to know is, ‘Well how
many new air bricks did you find it necessary to put in?’ If, say, there were 20 air bricks around the
house and only two more were put in, then one would hardly suppose that the
surveyor should have mentioned the air bricks. Be all that as it may, the purchasers
were actually on notice about the air bricks from Waveney. That might not
perhaps excuse the surveyors, but it seems to me if they did not ask, Waveney
distinctly mentioned whether that was something that should be done, then that
was up to them. It seems to me that Mr Gooding, if he failed to notice that
there should be more air bricks, really has not in fact by that led to any
damage to the plaintiffs.
For all those
reasons, in my view, the plaintiffs’ claim — I am surprised in some way from
what I thought at the outset of this case — fails. In the ordinary course it
might be right that I should deal with damages, lest my view should prove
hereafter to be wrong and I would happily do so if I felt that there was any
firm foundation on which to undertake the exercise of seeking to assess
damages. But unfortunately I feel myself on a complete quicksand of uncertainty
in relation to it.
I really
cannot accept Mr Walkin’s assertion that this house was worth only site value.
His own comparable seems to me not to support that view of matters. For one
thing, he deals with the comparable in a completely different way. He takes the
supposed value of I think it was called ‘Broom Hall’ as if it were in good
order. He then takes the supposed costs of repairs and deducts that from the
good-order value of the house, but that does not give you the site value at
all. One finds that in fact the purchasers at that auction, for whatever
reason, paid £129,000 for a house which was said to be worth £200,000 if it had
been in good order and the purchasers knew that they could not even climb the
staircase. The dry rot was so extensive that it was unsafe, as I understand it,
even to climb the staircase. It seems to me that that comparable goes very far
away from establishing that it is right to take the site value of any house
which has a warning, and I hasten to add, only a warning of dry rot. So that I
do not feel able to accept Mr Walkin’s evidence in that regard. I really have
nothing else to go on, it seems to me. Equally, I have grave doubts in relation
to what I would call the minor other matters about Mr Walkin’s approach. While
I see the apparent good sense of it, it seems to me that it is actually a way
of dodging the rule that the measure of damages in these cases is the
diminution in value, that is to say, the difference between the amount the
plaintiff paid and the value of the house in the state in which it should have
been reported to be.
The reason I
say that is this: it is quite clear from the cases that you are not entitled to
deduce that directly, at any rate, from the cost of repair. If you say, as Mr
Walkin says, well, with relatively minor repair what happens is that the
purchaser says, ‘That will cost me £10,000’, and the vendor says, ‘I don’t want
to give you anything’, they agree on £5,000. If that were accepted as a
principle it would mean that, in effect, one was substituting for the right
measure of damages another rule of thumb, namely half the cost of repair. That
cannot possibly be right, it seems to me. So that in relation to that, too, I
find some considerable difficulty.
Had I found
for the plaintiff, of course I would have been obliged to grapple with these
problems and make some sort of stab at it, but in the circumstances I feel that
it would really be a useless exercise and I do not think that I should embark
on an exercise which would be little more than guesswork. In all the
circumstances I do not think I can give that assistance of making a notional
assessment of damages.
Judgment for
the defendants with costs.
