Landlord and tenant — Housing Act 1961, section 32 and Landlord and Tenant Act 1985, section 11 — Damages payable by landlord to tenant for breach of covenants to repair implied by statute — Whether amount included for ‘inconvenience and distress’ too high, indicating an error by judge — Appeal by landlords in respect of amount awarded to tenant on her counterclaim in possession action — Landlords’ claim for possession not pursued — Judge found tenant’s flat in a state of great disrepair; tenant ‘living in conditions which were really quite intolerable’, largely due to accumulated effects of unremedied dampness — Tenant was a statutory tenant — Judge awarded £5,460 for loss in value of the premises and for inconvenience and distress on the basis of £30 per week for 3 1/2 years; £4,657.63 for special damage in respect of furniture, clothing, decorations etc; and £1,500 for injury to health — The appeal was in respect of the £5,460 only — The rent paid by the tenant, following the registration of a fair rent, was £8 per week
submitted on behalf of the landlords on appeal that the award for inconvenience
and distress, based on £30 per week, was much too high and failed to take
account of the fact that the rent paid by the tenant was only £8 per week —
Held, after reviewing the authorities, that, although the award was at the very
top of what could be regarded as proper, and although the judgment below
approached ‘the tolerable limits of brevity’, the sum was not so large as by
itself to indicate error — It was said by Lord Wilberforce in Pickett v British Rail
Engineering Ltd that it was important that judges’ assessments should not be
disturbed unless there was an error in principle or the amount was so grossly
excessive or insufficient as to demonstrate that some error must have taken
place — The judge here was not in error in failing to regard the rent as a
prima facie indication of the level of a proper award — Appeal dismissed
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, [1983] 2 EGLR 46, CA
Elmcroft
Developments Ltd v Tankersley-Sawyer [1984]
EGD 348; (1984) 270 EG 140, [1984] 1 EGLR 47; 15 HLR 63, CA
Hewitt v Rowlands [1924] All ER 344; (1924) 131 LT 757; 93 LJKB
1080, CA
Jackson v Horizon Holidays Ltd [1975] 1 WLR 1468; [1975] 3 All ER
92, CA
Jarvis v Swans Tours Ltd [1973] QB 233; [1972] 3 WLR 954; [1973] 1
All ER 71
Perry v Sidney Phillips & Son [1982] 1 WLR 1297; [1982] 3 All
ER 705; [1982] EGD 412; (1982) 263 EG 888, [1982] 2 EGLR 135, CA
Pickett v British Rail Engineering Ltd [1980] AC 136; [1978] 3 WLR
955; [1979] 1 All ER 774; [1979] 1 Lloyd’s Rep 519, HL
This was an
appeal by the landlords, the personal representatives of P Chiodi deceased,
from the award of damages by Mr Recorder Miscampbell QC, at West London County
Court, on the counterclaim by the tenant, Miss Jennifer De Marney, in the
landlords’ action for possession (the claim for possession not being pursued).
The tenant was the statutory tenant of a flat, 5 Holland Street, London W8.
David Van Hee
(instructed by Whitelock & Storr) appeared on behalf of the appellants;
Paul Staddon (instructed by Oliver O Fisher & Co) represented the
respondent.
Giving
judgment, RALPH GIBSON LJ said: This is an appeal from an award of damages made
by Mr Recorder Miscampbell QC on July 13 1987. The award was in favour of the
defendant, Miss Jennifer De Marney, who is now aged about 32, in respect of a
breach by the plaintiff landlords of the implied covenant to keep in repair the
structure, exterior and installations of the dwelling-house as imposed by
section 32 of the Housing Act 1961 and as now contained in section 11 of the
Landlord and Tenant Act 1985.
The defendant
was a successor to her parents as statutory tenant of the flat 5 Holland
Street, London W8. The flat is at the top of the building and it consists of a
living-room, a bedroom, a kitchen on the half-landing and shared use of the
bathroom. There are two other flats in the building over some commercial
property.
The fair rent
of the flat was registered under the Rent Act 1977 on October 29 1980 at £8 per
week, inclusive of rates.
The landlord
was Mr P Chiodi, who died in Italy on January 3 1981. Letters of administration
to his estate in England were granted on November 16 1984 to the plaintiffs.
The defendant
complained of disrepair in her flat in October 1980. On advice she stopped
paying rent in November 1980. No doubt because of the death of the landlord and
the inability or unwillingness of his family who had become entitled to his
estate to deal with the complaints of penetration of damp and failure of the
water heating installation, those defects were left unrepaired. The
correspondence records a series of complaints, including a complaint as to a
defective window in the bedroom, and the absence of hot water. There was a gap
in the correspondence between November 1981 and September 1983, in which month
the defendant was moved out of the flat by the local authority and rehoused
while essential structural repairs were carried out. The defendant moved back
into her flat in March 1985.
The plaintiffs
commenced proceedings in November 1985; the defendant counterclaimed for
damages. The claim for possession by the plaintiffs was not pursued. The
landlords acknowledged breach of the implied covenant for repair, and the only
question was that of damages.
The
defendant’s pleaded case was that the landlords had had notice of the disrepair
since October 27 1980. The particulars of her claim were as follows:
The Ascot
water heater broke down in November 1980.
Damp became
prevalent interfering with the electricity supply.
A broken
window was not replaced.
The
defendant’s arthritis was exacerbated and she suffered colds and influenza.
No repairs
were carried out, and the defendant upon solicitor’s advice started
in December 1980 to withhold rent.
Hot water to
the bathroom ceased.
In or about
September 1981 a notice was served under the Public Health Acts.
There is then a
reference to the local authority resolving to do the work.
There were
further particulars delivered with reference to those allegations, and some
parts of them should be noted:
Cracks in the
walls and holes in the roof of the building and the ceiling of the flat and
windows of the flat were the sources of damp. The dampness was caused by
atmospheric and rain water. The dampness caused the wiring and/or cabling to
deteriorate.
Then the
broken window which was not replaced was identified as that of the bedroom
facing south, and it was said:
The window
disintegrated through corrosion of putty and wood allowing the panes of the
upper half of the window to crack and fall out; at one time Sellotape was used
to try and fix them but not with much success.
Again there is
a reference to the giving of notice.
Then:
The supply of
hot water ceased in about the winter of October/November 1980. The supply of
hot water resumed when the local authority completed their works in about March
1985.
I interject to
say that the defendant had gone out of occupation in September 1983 while the
works were carried out. The particulars continue:
The supply
ceased because the geezer supplying it broke down.
The defendant,
and Mr Dorsey who lived with her, gave evidence. The court has been told that
the hearing continued over about five hours. The judgment of the learned
recorder was extempore. A note of it was prepared by counsel and approved by
the judge. He accepted the evidence given by the defendant and her witness.
There was no evidence by the plaintiffs as to the condition of the flat. There
were some photographs, but not dated, and in my view they are of little
assistance.
The judge
assessed the damages on the counterclaim under three heads: first, for
inconvenience and distress on the basis of £30 per week for 3 1/2 years, a
total of £5,460. That period of 3 1/2 years was down to September 1983, when
the defendant moved out of the flat, as already explained.
The judge gave
no damages thereafter, and indeed he gave no reason for that decision. There is
no appeal in respect of that period, and no doubt the refusal to continue the
damages after September 1983 was on the basis that the landlords were not in
breach of any obligation while actually carrying out the necessary repairs; and
there was nothing in the evidence to show that the fact it had been left to be
done by the local authority prolonged the period of being kept out of the
premises unreasonably.
The second
head of damages was a list of special damage items of property, articles etc
affected by the damp. The total in respect of furniture, clothing, decorations
etc was £4,657.63. The third head of damage was injury to the defendant’s
health. The judge referred to the fact that the defendant was suffering before
these events from poor health and that what had happened was that her health
(bad as it was) had been adversely affected by the breach of covenant on the
part of the landlords, and he assessed those damages in the separate sum of
£1,500.
The notice of
appeal attacks only the first item of damages — the £5,460 for inconvenience
and distress. The judge’s findings with reference to that matter were as
follows (and I quote from the note of his judgment):
The flat was
in a state of great disrepair. I have seen photographs which are graphic in
what they portray; ceilings fallen in, rubble piled up in the bath and staining
on the walls. There is a counterclaim arising out of these conditions; this
lady was living in conditions which were really quite intolerable. The landlord
was undoubtedly well aware of them . . . Apart from the occasional repair, the
landlord did nothing, until the local council was forced to step in and carry
out the requisite repairs itself.
For over
three and a half years until
she was
moved out . .
.
I interject to
say I am changing the precise words of the judgment because we are told that
although the learned recorder referred to ‘Mr Dorsey and Miss De Marney’, he
explained that he was in fact intending to refer to the damages, inconvenience
and distress caused to the defendant herself. The learned recorder continued:
For over
three and a half years until she was moved out, Miss De Marney clearly suffered
inconvenience and distress. I am only really in a position to make guesses at
[her] loss. For distress I find that [she was] suffering to a degree of £30 per
week, but I do have to set against this the fact that the rent limit was £8 per
week. I assess the loss under this head as . . .
and again I am
altering the terms of the judgment to accord with the judge’s own subsequent
alteration
. . . £30 a
week for a period up until
she was
moved to
alternative accommodation. I am less convinced that I need to give anything for
the period
she was
away; for
that period I make no award. Under this head, loss in value of the premises,
distress and inconvenience, I award . . . £5,460.
On reading the
judgment in the form recorded in the note, having regard to the pleaded case to
which I have referred, it seemed to me that the award of £5,460 for
inconvenience and distress, and for loss in value of the premises to the extent
that the judge intended to include that item, in addition to the special damage
and the separate award for injury to health, was at least at the very top of
any appropriate range of monetary awards for such a case.
The notice of
appeal takes two points only; first, it is said that the learned recorder
failed to give sufficient weight to the fact that the recoverable rent was only
£8 per week and, second, that the award of £30 per week, or £5,460 in all, was
too high.
Mr Van Hee,
who has appeared for the appellants, referred to Hewitt v Rowlands
(1924) 131 LT 757, decided in this court by Bankes, Scrutton and Atkin LJJ.
That case was also concerned with breach of duty by a landlord to repair a
dwelling of which the tenant was a statutory tenant under the Rent Act. Mr Van
Hee relied on a passage from the judgment of Bankes LJ at p 761, where he said:
Now, prima
facie the measure of damages for breach of the obligation to repair is the
difference in value to the tenant during that period between the house in its
then condition, and its value if the landlord on receipt of the tenant’s notice
had fulfilled the obligation to repair.
Then omitting
the next passage:
I hope I have
expressed sufficiently clearly the view which the registrar must take in
assessing the damages. Perhaps I could express it shortly in this way: that the
measure of damages is the difference in value to the tenant of the premises
from the date of the notice to repair down to the date of the assessment of
damages, between the premises in their present condition and their value if the
landlord on receipt of the tenant’s notice to repair had fulfilled the
obligations of the covenant.
Before leaving
that case, it should be noted that Atkin LJ expressly stated the fact that the
tenant was a statutory tenant made no difference to the assessment of
damages or the proper award to be made.
Mr Van Hee
invited the court to say that the value to the tenant in the sense
contended for in the judgment of Bankes LJ could not exceed the recoverable
rent and that that amount should provide at least some guide or test to the
maximum award for inconvenience, discomfort and distress in circumstances of
this nature.
Mr Van Hee
also referred the court to Calabar Properties Ltd v Stitcher
[1984] 1 WLR 287, where the case of Hewitt v Rowlands was
considered and explained. That case also concerned breach by landlords of a
covenant for repair of the outside of the flat. One of the items of damage
awarded by the learned judge, Sir William Stabb QC, was £3,000 for one item of
damage described at p 290E in the following terms:
for the
disappointment, discomfort loss of enjoyment and bouts of ill-health which [the
defendant’s husband] suffered during the five years he was occupying what was
supposed to be a high-class flat, and which were due to the plaintiffs’
persistent refusal to take any steps to remedy the breaches of which they were
made well aware.
I shall refer
to it later, so it is as well to mention it now, that that award of damages for
those heads of loss or suffering works out at about £11.50 per week over the
period of time in respect of which it was awarded. That item of damage was not
in dispute on appeal in the case of Calabar Properties Ltd. The court
rejected the contention for the tenant that further damages should have been
awarded. That case, in my view, is of assistance in this case because of the
terms in which those contentions for the tenant were rejected.
As to a claim
that the learned judge should have awarded additional damages in respect of
diminution in value, that was based upon the excerpts from Hewitt v Rowlands
to which I have referred.
Stephenson LJ,
at p 293D, said this:
The second
objection is that to submit that what the defendant has lost by the plaintiffs’
breach of covenant is the consequent diminution in the value of the
flat as a marketable asset is to ask the court to take a wholly unreal view of
the facts. The reality of the defendant’s loss is the temporary loss of the
home where she would have lived with her husband permanently if the plaintiffs
had performed their covenant. She cannot increase her loss by deciding not to
return after the covenant has been performed, and she does not seek to do so.
But she can claim, as it seems to me, to be put in as good a position as she
would have been if the plaintiffs had performed their covenant, at least as
early as they had notice that the main structure was out of repair instead of
years later. If she had bought the lease as a speculation intending to assign
it, to the knowledge of the plaintiffs, the alleged diminution in rental (or
capital) value might be the true measure of her damage. But she did not; she
bought it for a home, not a saleable asset, and it would be deplorable if the court
were bound to leave the real world for the complicated underworld of expert
evidence on comparable properties and values, on the fictitious assumption that
what the flat would have fetched had anything to do with its value to her or
her husband. I do not think we are bound by the authority of Hewitt v Rowlands
. . . or any other decision to do something so absurd . . .
Griffiths LJ,
at p 299, after referring to the passage in the judgment of Bankes LJ to which
this court was, as above, referred, continued as follows:
Whatever
Bankes LJ meant by ‘the difference in value to the tenant’, the one thing he
cannot have meant in the circumstances of that case was the diminution in the
market value of the tenancy, for it was a statutory tenancy which the tenant could
not sell, and thus it had no market value. In my view the difference in value
to the tenant must vary according to the circumstances of the case. If the
tenant is in occupation during the period of breach he is entitled to be
compensated for the discomfort and inconvenience occasioned by the breach and I
suspect that that is what Bankes LJ had in mind when he used the phrase ‘the
difference in value to the tenant’ in Hewitt v Rowlands . . . for
which the judge in this case awarded £3,000. If the tenant has rented the
property to let it and the landlord is aware of this, then ‘the difference in
value to the tenant’ may be measured by his loss of rent if he cannot let it
because of the landlord’s breach. If the tenant is driven out of occupation by
the breach and forced to sell the property then ‘the difference in value to the
tenant’ may be measured by the difference between the selling price and the
price he would have obtained if the landlord had observed his repairing
covenant. But each case depends upon its own circumstances and Hewitt v Rowlands
should not be regarded as an authority for the proposition that it is in every
case necessary to obtain valuation evidence.
In my view
there was no need for any valuation evidence in this case. I repeat that damages
in a case such as this should include the cost of the redecoration, a sum to
compensate for the discomfort, loss of enjoyment and health involved in living
in the damp and deteriorating flat and any reasonable sum spent on providing
alternative accommodation after the flat became uninhabitable.
In my
judgment, the approach of the learned recorder, in seeking to assess a sum to
compensate fairly for discomfort and loss of enjoyment or, as he put it, ‘for
inconvenience and distress’, was right and he was not in error in failing to
take account of the rent as a prima facie indication of the level of any
proper award.
Have the
appellants then shown that the award was so high that this court should reduce
it? The award, it is to be noted, was
based upon three and a half years as the relevant period. The pleaded case was
that notice was given to the landlords in October 1980. From that date to the
date which the judge took as the ‘cut-off’ point as September 1983 is under
three years.
Mr Van Hee
refused to take any point upon this matter. He explained that the defendant
had, in evidence, said (notwithstanding the terms of the pleading) that notice
had been given to a rent collector before 1979. He accepts that that reference
in the evidence must have been, and should be treated as, reference to notice
of the condition of the premises upon which the judge assessed his award. There
is, therefore, nothing in that point.
I have already
said how this case first appeared to me on looking at the papers. The notes of
evidence are exceedingly terse in a case in which the sums awarded are, on any
view, substantial. It is impossible to tell over what periods of time any
particular head of complaint continued. The references in the judgment to the ceilings
being fallen and there being rubble in the bath cannot refer to a state which
continued for any length of time.
The judgment
itself is brief; this court is well aware of the pressures under which judges
sitting in the county courts work, but this judgment does approach the
tolerable limits of brevity in explaining the basis upon which a substantial
award of damages is made.
It is unlikely
that over the whole of the three years, spring, summer and winter, conditions
in the flat were the same. It is not possible to tell where any particular
leaks were and what was (or could be) done to catch the drips. The plaintiffs
appear not to have carried out any inspection at any time or to have been in a
position to give evidence of it if they did.
It has not been
suggested that the defendant was, in any regard, in breach of her duty to
mitigate the consequences of the landlords’ breach; even, for example, by
making crude but effective repairs to keep out the rain and the cold wind from
the defective window by fixing some plastic sheet to it, with or without the
assistance of the gentleman with whom she shared the flat. Nor is it suggested
that the learned recorder misapprehended any aspect of the evidence or the
circumstances which gave rise to the inconvenience and distress.
Finally, there
is no suggestion that the learned recorder was in any way duplicating the
damages awarded for injury to health over the three-and-a-half-year period by
any part of the award which he made in respect of distress.
The court is
therefore placed in the position of being invited to say that an award based on
£30 per week is too high for a woman in a poor state of health, who spent much
time in her home because the evidence shows that she was unemployed; who could
not escape from the consequences of damp and cold by using some other part of
the premises, because all parts of the flat were affected, and who was forced
to live, for this time, in circumstances which the judge described as ‘quite
intolerable’. It seems to me that the court must have regard, in a case of this
nature, to what Lord Wilberforce said in Pickett v British Rail
Engineering Ltd [1980] AC 136 at p 151E, where he dealt with the principles
applicable on an appeal to this court from an award of general damages made by
the trial judge. He said:
As to the
general damages, I would also restore the judgment of the trial judge. He gave
this matter most careful attention and the Court of Appeal were unable to find
that he erred in principle in any way. It is important that judges’ assessments
should not be disturbed unless such error can be shown, or unless the amount is
so grossly excessive or insufficient as to lead to the conclusion that some
such error must have taken place.
I have had in
mind the case, mentioned in the course of argument, of Perry v Sidney
Phillips & Son [1982] 1 WLR 1297. That was a case based upon the giving
without due care of a survey report by a surveyor, and the question, without
any assessment of damages, was whether it was right to direct that damages be
assessed in respect of anxiety, worry and distress in addition to the
difference in value. Lord Denning MR, at p 1302, said:
The second
point is as to the distress, worry, inconvenience and all the trouble to which
Mr Perry was put during the time when he was in the house. Mr Hicks sought to
say before us that damages ought not to be recoverable under this head at all.
He referred to The Liesbosch [1933] AC 449. In that case Lord Wright
said at p 460 that the loss due to the impecuniosity of the plaintiffs was not
recoverable. I think that that statement must be restricted to the facts of The
Liesbosch. It is not of general application. It is analysed and commented
upon in this court in Dodd Properties (Kent) Ltd v Canterbury City
Council [1980] 1 WLR 433. It is not applicable here. It seems to me that Mr
Perry is entitled to damages for all the vexation, distress and worry which he
has been caused by reason of the negligence of the surveyor. If a man buys a
house — for his own occupation, on the surveyor’s advice that it is sound — and
then finds out that it is in a deplorable condition, it is reasonably
foreseeable that he will be most upset. He may, as here, not have the money to
repair it, and this will upset him all the more. That too is reasonably foreseeable.
All this anxiety, worry and distress may nowadays be the subject of
compensation. Not excessive, but modest compensation. That appears from such
cases as Jarvis v Swans Tours Ltd [1973] QB 233; Jackson v
Horizon Holidays Ltd [1975] 1 WLR 1468; Heywood v Wellers
[1976] QB 446; and Hutchinson v Harris [1978] 10 BLR 19.
It is for the
use by the learned Master of the Rolls of the phrase ‘modest compensation’ that
I have referred to that decision.
We have also
been given the assistance of an extract from the Legal Action Group publication
Law and Practice, in which there are gathered a collection of cases very
shortly reported, concerned with damages for disrepair. This seems to me to be
a useful exercise because judges trying cases of this nature in county courts
do need to gather what is the sort of level of award made in roughly similar
cases. I am not going to set them out because I have found, on reflection, that
they do not provide any decisive assistance in this case one way or another.
Two of the cases indicate to the extent that they are comparable that this
award is on a higher level than those; one case indicates that the award in
this case is at about the same level, and of the cases to which we were
referred they are only four in number. The decision of Rose J included in them
seems to me to be so tersely reported as to afford no useful guidance to this
court.
I have already
referred to the decision of Sir William Stabb QC in Calabar Properties Ltd
v Stitcher, where he awarded damages based upon £11.50 per week for
distress resulting from similar structural defects in a flat which, as Mr Van
Hee pointed out, was obviously a
paid.
Mr Staddon
drew our attention to the fact that the cases referred to by Lord Denning in Perry’s
case, including Jarvis and Jackson, are cases in which a much higher rate of
compensation was awarded in respect of the distress suffered during the shorter
period of a spoiled holiday.
Finally, there
is the case of Elmcroft Developments Ltd v Tankersley-Sawyer
(1984) 15 HLR 63*, in which for breach of a repairing covenant, damages had
been awarded by His Honour Judge Corcoran on the basis of £26 per week over a
period of time, and in respect of that award there was no appeal to this court
that it was excessive. Its use is merely to indicate that another learned judge
had set at that earlier point in time a figure not vastly different from that taken
by this learned judge.
*Editors
note: Also reported at (1984) 270 EG 140, [1984] 1 EGLR 47.
I have
reviewed that material because it is what was before the court and because,
upon it, I have been driven to the conclusion that it is not possible for this
court to say that the award was, within the test laid down by Lord Wilberforce,
so high as by itself to indicate error. I repeat that the award was, in my
judgment, high — that is to say, at the very top of what at this time could in
my view be regarded as a proper award on these facts. But, for the reasons I
have given, by itself that is not enough for this court to interfere with it,
and for those reasons I would dismiss this appeal.
BUTLER-SLOSS
LJ agreed and did not add anything.
The appeal
was dismissed with costs; legal aid taxation of the defendant’s costs was
ordered.