Local authority – Pest control – Infestation – Appellant tenant claiming respondent landlords liable for infestation of poultry mites following removal of pigeon nest outside flat – Judge finding it reasonable not to spray cupboard under nest once nest removed – Whether judge erring in failing to have regard to uncontradicted expert evidence that cupboard should have been inspected and de-infested – Appeal allowed The appellant was the tenant of a fourth-floor flat owned by the respondent landlords. She complained to the respondents that pigeons were nesting outside her flat and causing a nuisance. The respondents engaged a pest control company to remove the nest and de-infest the area. Held: The appeal was allowed. Sylvester Carrot (instructed by Kingston & Richmond Law Centre) appeared for the appellant; David Lintott (instructed by Wandsworth London Borough Council) appeared for the respondents. Eileen O’Grady, barrister
The nest was located over a cupboard which had an opening into the appellant’s flat. It was common ground that pigeons were hosts to poultry mites, Following the de-infestation, it appeared that mites remained in the cupboard and migrated into the appellant’s flat in search of new hosts. Once there, they multiplied, making the flat uninhabitable for the appellant and her son, both of whom suffered bites and had to leave the property. The appellant subsequently brought proceedings against the respondents claiming damages for breach of their duty as landlords, and the common law duty of care, to take reasonable steps to abate the infestation, in particular by failing to remove the mites from the cupboard.
The appellant instructed an environmental health consultant who gave evidence that the mites would had been driven to seek hosts elsewhere once the pigeons had been removed and the cupboard had provided a clear route into the appellant’s flat. Accordingly the pest controllers should have sprayed the cupboard at least. The respondents called a representative from their environmental services department who gave evidence that it was rare for poultry mites to get into a house. However, he stated that he would have advised that the cupboard should be checked for infestation because of its proximity to the appellant’s flat.
The judge made reference to part, though not all, of the experts’ evidence and concluded that, once the nest had been removed, and the surrounding area sprayed, without the benefit of hindsight, it had been reasonable not to spray the cupboard. Therefore the appellant’s claim was dismissed.
The appellant appealed, arguing that the court had erred in law by failing to have regard to the uncontradicted evidence of both experts that they would have sprayed or at least checked the cupboard as part of the de-infestation process. The respondents contended that the judge had been entitled to reach the conclusion he did as it was not reasonably foreseeable that the poultry mites would migrate into the appellant’s flat.
The judge had failed satisfactorily to address the unanimous view of the experts that the cupboard should have been inspected and de-infested. His reference to hindsight was not apposite. The existence of poultry mites and their behaviour was well-known, and the judge’s finding that only spraying the area around the nest was not unreasonable begged the question as to what that area was. Since the nest had been on top of the cupboard, the relevant area had to include the cupboard itself.
The judge had failed to grapple with the unanimity of evidence and his judgment could not stand. The evidence was all one way and he ought to have concluded that the appellant’s claim succeeded. Accordingly the case would be remitted to the county court to determine the quantum of damages.
(Per Aikens LJ) In all the circumstances, it was inevitable and foreseeable that the poultry mites would have inhabited the cupboard below the pigeon nest, and that once the nest was removed they would migrate into the flat to find nourishment. Based on the uncontradicted evidence, the cupboard should have been de-infested if found open. If it was locked, advice should have been given that de-infestation was necessary.
Local authority – Pest control – Infestation – Appellant tenant claiming respondent landlords liable for infestation of poultry mites following removal of pigeon nest outside flat – Judge finding it reasonable not to spray cupboard under nest once nest removed – Whether judge erring in failing to have regard to uncontradicted expert evidence that cupboard should have been inspected and de-infested – Appeal allowed
The appellant was the tenant of a fourth-floor flat owned by the respondent landlords. She complained to the respondents that pigeons were nesting outside her flat and causing a nuisance. The respondents engaged a pest control company to remove the nest and de-infest the area.The nest was located over a cupboard which had an opening into the appellant’s flat. It was common ground that pigeons were hosts to poultry mites, Following the de-infestation, it appeared that mites remained in the cupboard and migrated into the appellant’s flat in search of new hosts. Once there, they multiplied, making the flat uninhabitable for the appellant and her son, both of whom suffered bites and had to leave the property. The appellant subsequently brought proceedings against the respondents claiming damages for breach of their duty as landlords, and the common law duty of care, to take reasonable steps to abate the infestation, in particular by failing to remove the mites from the cupboard. The appellant instructed an environmental health consultant who gave evidence that the mites would had been driven to seek hosts elsewhere once the pigeons had been removed and the cupboard had provided a clear route into the appellant’s flat. Accordingly the pest controllers should have sprayed the cupboard at least. The respondents called a representative from their environmental services department who gave evidence that it was rare for poultry mites to get into a house. However, he stated that he would have advised that the cupboard should be checked for infestation because of its proximity to the appellant’s flat.The judge made reference to part, though not all, of the experts’ evidence and concluded that, once the nest had been removed, and the surrounding area sprayed, without the benefit of hindsight, it had been reasonable not to spray the cupboard. Therefore the appellant’s claim was dismissed.The appellant appealed, arguing that the court had erred in law by failing to have regard to the uncontradicted evidence of both experts that they would have sprayed or at least checked the cupboard as part of the de-infestation process. The respondents contended that the judge had been entitled to reach the conclusion he did as it was not reasonably foreseeable that the poultry mites would migrate into the appellant’s flat.
Held: The appeal was allowed. The judge had failed satisfactorily to address the unanimous view of the experts that the cupboard should have been inspected and de-infested. His reference to hindsight was not apposite. The existence of poultry mites and their behaviour was well-known, and the judge’s finding that only spraying the area around the nest was not unreasonable begged the question as to what that area was. Since the nest had been on top of the cupboard, the relevant area had to include the cupboard itself. The judge had failed to grapple with the unanimity of evidence and his judgment could not stand. The evidence was all one way and he ought to have concluded that the appellant’s claim succeeded. Accordingly the case would be remitted to the county court to determine the quantum of damages.(Per Aikens LJ) In all the circumstances, it was inevitable and foreseeable that the poultry mites would have inhabited the cupboard below the pigeon nest, and that once the nest was removed they would migrate into the flat to find nourishment. Based on the uncontradicted evidence, the cupboard should have been de-infested if found open. If it was locked, advice should have been given that de-infestation was necessary.
Sylvester Carrot (instructed by Kingston & Richmond Law Centre) appeared for the appellant; David Lintott (instructed by Wandsworth London Borough Council) appeared for the respondents.
Eileen O’Grady, barrister