Failure to effect remedial damp proofing work in discharge of duty imposed by Defective Premises Act 1972 – Whether contractor liable for defective humidifier voluntarily supplied in attempt to remedy defect – Whether damages for loss of use may be substituted for unsuccessful claim for loss of rental income.
In 1978 the then owner of a pair of gatehouses converted one of them into a dwelling- house, the main rooms of which were located below ground level. The appellants were engaged to carry out certain damp and waterproofing services , including the application of a tanking process to deal with rising damp. Various remedial works had to be done but by early 1988, when the respondent bought the house, it was thought that the problem of damp had been solved. Towards the end 1988 however, the respondent had cause to complain to the appellants of renewed water penetration and condensation, it being common ground that he had acquired the benefit of any claims which might subsist against the appellants under section 1 of the Defective Premises Act 1972 so far as they had failed to make the premises fit for human habitation.
In 1989, following unsuccessful attempts to arrest the damp by other means, the respondent agreed to the appellants’ suggestion that they supply him with a dehumidifier equipped, inter alia with a bucket to receive the waste water which would be periodically drained off by operation of a timeswitch. However, over the next few months it became necessary to drain the bucket every 48 hours by hand because of a continuing fault with the switch. In August of that year, while the respondent was absent, the bucket overflowed causing extensive damage to the respondent’s furniture and effects.
In subsequent county court proceedings both in respect of the flooding and of the general failure of the appellants to discharge their duty under the 1972 Act the respondent was awarded damages totalling £17,149. That figure included a sum of £6,000 for loss of use of the premises awarded in substitution for a higher claim for loss of rent over the relevant period, the judge having found that the respondent had no firm intention of letting the house. On appeal the appellants contended they could not be held responsible for the flooding as the dehumidifier had been supplied voluntarily and therefore subject to no contractual warranty express or implied. It was further contended that the figure of £
6000 should be disallowed as loss of use had not been specifically pleaded as a head of damage.
Held The appeal was dismissed.
The appellants could not plead want of consideration as the respondent’s acceptance of the offer to supply the dehumidifier necessarily implied a promise on his part not to pursue his statutory claim in respect of the defective remedial work.
Held The Appeal was dismissed
1. As regards the flooding, the appellants could not plead want of consideration since the respondent’s acceptance of the offer to provide the dehumidifier necessarily implied a promise on his part to forbear from pursuing his statutory remedies in respect of the unsuccessful remedial work.
2. An allegation of loss of rental income (itself a form of use) was sufficient to warn the appellants that the respondent was complaining of loss of use of the premises. The judge was accordingly entitled to award the lower figure in substitution for the specific head of damage otherwise disallowed. There was nothing in the 1972 Act to preclude an award under this head.
Robert Hantusch (instructed by Goodman Derrick) appeared for the appellants, Timothy Hartley (instructed by Guest Walker & Co, York) appeared for the respondent.
