Negligence — Action against chartered surveyors — RICS home buyer’s report and valuation — Although defendant
noted the view expressed by an RICS working party that the same level of
expertise was required from a surveyor carrying out a house buyer’s report and
valuation in the standard form recommended by the institution as for a
structural survey — On the question of subsidence the judge held that the
defendants should have discovered evidence of the movement of the concrete slab
and should have been alerted to the possibility of subsidence by certain
general features, such as the clay soil, the presence of poplar trees in the
vicinity and the degree of slope on which the house was built — Even if the
defendants considered that any subsidence was stable and not progressive, it
was their duty to draw the plaintiffs’ attention to a feature which involved
uncertainty as to the condition of the property; failure to do so was negligent
— As regards the misalignment of the first-floor doors, there was evidence of
considerable distortion, to the extent of a door not closing — Defendants did
not in this connection follow their own usual good practice of opening and
closing the doors and so failed to comment on this defect — The third respect
in which the defendants fell short was their failure, when reporting on the
roof loft conversion carried out to produce a habitable room, to draw attention
to certain possible problems — They should have pointed out that the loft space
would not necessarily be structurally strong enough to support live loading if
used as a room and that, even if used solely as a loft space, the conversion
might have reduced the strength of the roof — Although the judge found a breach
of duty on these three counts, the survey was not a slapdash survey and the
result of the action was not a reflection on general competence
measure of damages had been established by the well-known case of Philips v Ward — It was
the difference between the price the plaintiffs paid for the property and the
market value which the property would have had if it had been properly
described by the defendants, showing the defects as they were — The judge assessed
the difference at £6,000, with interest at 12 1/2% amounting to £3,502.50 — The
total damages, including incidental expenses such as cost of alternative
accommodation during repairs and sums for distress and inconvenience, came to
£13,297
The following
case is referred to in this report.
Philips
v Ward [1956] 1 WLR 471; [1956] 1 All ER
874, CA
This was an
action by Bryan Humphrey Cross and his wife, Susan Jill Cross, against David
Martin & Mortimer, a firm of chartered surveyors, claiming damages for alleged
negligence in a report on a house purchased by the plaintiffs at 13 Dane Acres,
Bishop’s Stortford, Hertfordshire.
Philip Cayford
(instructed by Foskett Marr Gadsby & Head, of Epping) appeared on behalf of
the plaintiffs; Glen Tyrell (instructed by Barlow Lyde & Gilbert)
represented the defendants.
Giving
judgment, PHILLIPS J said: On June 18 1984 the plaintiffs, Mr and Mrs Cross,
purchased the freehold interest in a semidetached house known as 13 Dane Acres,
Bishop’s Stortford, Hertfordshire (which I shall call ‘the property’), for
£52,675. Before doing so they instructed the defendants to survey the property.
The defendants advised them that — having regard to the age of the house, which
was built in about 1968 — the appropriate type of survey was the House Buyers
Report and Valuation on the terms of the standard form adopted by the Royal
Institution of Chartered Surveyors. I shall refer to this type of survey as an
HBRV. Mr David Mortimer of the defendants duly inspected the property and
provided the plaintiffs with an inspection report. It is the plaintiffs’ case
that in their report the defendants negligently failed to draw attention to
three significant features of the property each of which either constituted or
was symptomatic of a separate structural defect. These features were:
(i) settlement of the solid
slab that formed the ground floor;
(ii) misalignment of a number
of doors on the first floor;
(iii) alteration of the roof
trusses in order to enable the loft to be converted into a room.
The existence
of each of these features is not now in dispute, though the defendants contend
that the settlement of the ground-floor slab was not ascertainable on the
survey despite the exercise of reasonable skill and care. Their primary defence
is, however, that neither this nor the other two features were sufficiently
significant to require adverse comment in their report.
The issues
that arise in this action, in the order in which I propose to deal with them,
are as follows:
1 Should Mr Mortimer have detected the
subsidence of the ground-floor slab when he made his survey? If so,
2 Was Mr Mortimer negligent in failing to
comment on the subsidence of the ground-floor slab?
3 Was Mr Mortimer negligent in failing to
comment on the misalignment of the first-floor doors?
4 Was Mr Mortimer negligent in failing to
comment more fully than he did on the loft conversion?
5 In so far as there was negligence, what
damages flow from it?
Should Mr
Mortimer have detected the subsidence of the ground-floor slab?
The relevant
standard of care. The HBRV is now a common form of
survey for the domestic house purchaser, but no reported case yet gives
guidance as to the nature and extent of the duty of a surveyor who carries out
such a survey. It has been suggested, apparently, in some quarters that an HBRV
constitutes a more perfunctory survey than that which is described as a
structural survey.
In July 1984 a
Report of the Joint General Practice and Building Surveyors Division Working
Party on Structural Survey Advice to the Profession on Residential Property expressed
the view, under the heading ‘Expertise’:
We are
convinced that the same level of expertise is required from the surveyor in
carrying out an HBRV as that for a structural survey.
Having heard
the expert witnesses in the present case and considered the HBRV form, it seems
to me that this conclusion is well founded. The HBRV form has 32 heads against
which the surveyor makes his entries. Most of these heads consist of specific
features of the house surveyed. Against some heads the form notes limitations
on the extent of the survey that will be effected, but I doubt if these do more
than state expressly what would be the limitations reasonably implicit in a
structural survey of a domestic house. The only relevant head, together with
note of limitations, is as follows:
16. Floors
The surface
of all floors not covered with fixed coverings has been inspected as far as
practical. Fixed floorboards have not been lifted. NB Fixed coverings will not
be lifted but the surveyor will, where possible, lift accessible corners
sufficiently to identify the nature of the finish beneath. The surface areas of
solid floor construction will be inspected as for timber floors.
The entry made
by Mr Mortimer against this head was as follows:
Solid
concrete ground floor and the normal timber joists and boarded floor upstairs.
Fitted coverings throughout and woodblock to the dining room floor. The floor
surfaces could not be examined because of fitted coverings but upstairs when
spring tested the floors were found to be very sound indeed with only minimal
evidence of deflection but of no structural significance.
Mr and Mrs
Cross moved into the property on June 18 1984. The following day a professional
carpet-layer came to lift the lounge carpet and re-lay it upstairs. When the
carpet was lifted the lounge floor was seen to be irregular. The carpet in the
hall was then lifted and it was found that the floor formed a noticeable hump,
and the mosaic block tiling was broken up.
Mr and Mrs
Cross at once contacted the defendants. Mr Martin, Mr Mortimer’s partner, came
to see what the problem was. On June 26, having carried out his inspection, Mr
Martin wrote to the plaintiffs as follows:
I refer to Mr
Cross’s telephone conversation with my partner on June 20 following our House
Buyers Report addressed to you and dated March 13 1984. The reason for your
telephone call was that when the ground-floor carpets were lifted some
irregularity was found in the floor surfaces. I inspected on June 25 1984 at
which time Mr Cross told me that the Herts & Essex Carpet Layers had lifted
the sitting-room carpet in order to put it into a bedroom and had drawn your
attention to the problem. Lifting the entrance hall carpet revealed a similar
problem.
At the time
of my partner’s inspection the irregularities referred to in the floor surfaces
were not apparent due to the presence of fitted carpets. The floor in the
dining room is of woodblocks and Mrs Cross indicated that there was a slight
slope on the floor and so there is. It commonly occurs that a slope of this
sort is left in the finished floor surface because of a slight difference in
level between the opening of the threshold in the main external wall of an
outside door and the adjacent floor screed and this is what I believe accounts
for the slope in the case of the dining room floor. It is not indicative of the
sort of irregularity which is present in the sitting room and entrance hall
floors.
The reason
for these irregularities is consolidation of the fill below the floor slab and
this probably occurred in the early years of the life of the house. It appeared
to me that the major amount of consolidation likely to occur has already taken
place. I do not consider that any action regarding it need be taken. Had the
floor irregularities been apparent on March 8 1984, which they were not due to
the presence of fitted carpets, then we would have given you this same advice.
The plaintiffs
thought it wise to obtain independent advice and instructed White &
Mileson, a firm of architects and surveyors. Mr White, an architect, came to
look at the property. Mr White reported on July 5 1984 as follows — I shall
read the general part of his report which gives a useful description of the
property, and that part which relates to the ground floor:
General. The property is an end-of-terrace private dwelling-house situated
at the end of a cul-de-sac where the original ground level appears to have
sloped from the front of the house towards the rear and the present ground
level as it appears at the ground at the rear of the house is probably 700 to
1000mm below that at the front. The external walls of the house are 11in cavity
work and there is a structural wall of 4 1/2in brick running parallel to the
front and rear walls. This 4 1/2in wall forms one side of the staircase to the
first floor and stops short of the front door, which is at the side wall of the
house. The wall is also pierced towards the party wall at the end by a double
door between the lounge and the dining room. This latter opening and the
partition between the dining room and the kitchen may not have been part of the
house as originally constructed.
Ground-Floor
Irregularity. In a small entrance hall which is
entered from the side of the house the carpet was still in position, laid over
a mosaic hardwood floor finish. Along a line which is a continuation of the 4
1/2in structural wall running across the property there is a pronounced hump in
the carpet. When the carpet is removed the mosaic block floor towards the front
of the house is in pieces and is about 10 or 12mm below the flooring to the
rear. I am of the opinion that the foundations of the structural wall running
across the house, the foundations for that wall were continued right up to the
side wall and that this wall terminates just below the concrete ground floor.
The concrete ground floor where it is supported probably on hardcore has
subsided and where it is supported on the foundation of the structural wall it
has not. The difference in level occurs at this point. The door from the hall
into the living room has a lining with planted stops and architrave and there
is a gap beneath the bottom of the door lining etc and the door finish of about
10 to 12mm. This also indicates that the concrete ground floor may have
subsided. There is a small softwood skirting along the base of the structural
wall between the living room and the staircase. Beneath this skirting there is
a gap of about 12mm to the floor finish. This indicates that the concrete
ground floor has subsided. In the opening between the living room and the
dining room along the line of the double doors there is a similar difference in
level to that which is described in the entrance hall. The cause is probably
the same as that ascribed to the entrance hall problem. Across the whole of the
living room floor there is a fall from front to rear which totals about 30mm.
The mosaic floor has a felt backing and the mosaic blocks themselves give a
satisfactory reading on a moisture meter. However, where the felt backing is
punctured the concrete beneath gives an unacceptably high moisture reading and
any repair will have to maintain the integrity of the present damp-proof
membrane.
Conclusion. The irregularity of the floor in the entrance hall where the
carpet is still laid is obvious to the eye and the difference in level is
noticeable when walking across. Since carpet was not laid at the time of the
inspection of the dining room/living room door comment is more difficult, but
with a similar difference in level it should have been equally obvious.
In so far as
the hall and living room are concerned, there was thus agreement at an early
stage that slab subsidence had occurred. By the end of the hearing I understood
that the defendants accepted that subsidence had also taken place to a lesser
extent in the dining-room and kitchen. In any event I find that such subsidence
did take place. I base this conclusion not merely on the hump between the
lounge and the dining-room but upon a gap of about 8mm under the partition wall
between the dining-room and the kitchen and upon the implications of the fill
underlying the concrete slab, which subsequent excavation proved to be
unsatisfactory.
Mr Clarke, a
surveyor partner of White & Mileson, formed the view, on the basis of
reading reports alone, that Mr Mortimer should have discovered the movement of
the slab when carrying out his survey. This view he confirmed on a subsequent
visit to the property and affirmed in his evidence to me.
In my
judgment, Mr Clarke’s conclusion on this aspect of the case was well founded.
The experts on both sides were agreed that there were certain general features
about the property which should have led Mr Mortimer to consider the
possibility of subsidence not merely of the structural members of the house but
of the floor slab with particular care. These were:
— the fact
that the house was built on clay;
— the fact
that poplar trees were standing in the vicinity; and, most significantly,
— the fact
that the house was built on a 9° . slope, which would result in a requirement
for an unusually large amount of fill under the floor slab.
In these
circumstances I consider that Mr Mortimer should certainly have noticed the
hump in the hall, which Mr White found on his inspection both obvious to the
eye and noticeable to the tread and which Mr Martin himself described as ‘very
wonky’. This should have alerted Mr Mortimer to the possibility of subsidence
and to the need to scrutinise both the gaps at skirtings, where possible, and
any other areas of the floor that could be inspected. Such scrutiny should I
think have led to the discovery of the hump between the lounge and dining-room
and, quite possibly, to the gap in the skirting between the lounge and the
staircase. This would have depended upon whether Mr Mortimer could have prised
away the fitted carpet from the edge of the skirting. The gap under the
partition between the dining-room and the kitchen would then have been
recognised as a further symptom of probable subsidence.
Was Mr
Mortimer negligent in failing to comment on the subsidence?
Mr Tyrell, for
the defendants, advanced with an advocacy that was beguiling the following
proposition as to a surveyor’s duty to report. A house-purchaser consults a
surveyor in order to receive a firm opinion on the state of a house — not to be
beset with doubts. It is for the surveyor to form a view of the significance of
features observed and to refer only to those which he considers are really
cause for concern. Mr Cayford, for the plaintiffs, rightly challenged this
submission. In my judgment, a house-purchaser can properly expect to be
informed of any feature of the property that involves uncertainty as to its
condition, present or future, even if the surveyor’s opinion as to its
significance is reassuring.
When
considering whether Mr Mortimer should have reported on any feature, it is
necessary to have regard not merely to Mr Mortimer’s opinion of the probable
significance of the feature but also to any significant alternative
possibilities that Mr Mortimer could not affirmatively rule out.
The subsidence
as it existed in 1984 was, of itself, of sufficient significance to call for
comment in Mr Mortimer’s report. Remedial measures were necessary to deal with
that subsidence. At best, if a satisfactory floor surface was to be restored,
it was necessary to take up the wooden mosaic floor in the hall and lounge, lay
a screed to bring the floor level, and lay a new wooden floor. This would,
however, not be satisfactory unless the subsidence had stabilised on a hardcore
satisfactorily impacted.
Part of this
action has been devoted to exploring whether or not the subsidence has
stabilised. Mr Mortimer is of the opinion that the slab is stable and not
subject to further subsidence. Mr M H Kingdom [ARICS], a surveyor called by the
defendants, firmly supported this view. The same view was expressed by Mr
Martin in 1984, though in cross-examination he accepted that had he seen the
unsatisfactory infill he might have revised this opinion.
Mr White, Mr
Clarke and Mr Barker, a structural engineer called by the plaintiffs, have all
expressed the view that the subsidence is progressing and will continue to
progress. This view, however, was expressed only in the light of, and in a
considerable measure based upon, the nature of the fill that was exposed when
the floor of the hall was excavated. This was found to be loose and to include
whole
when Mr White, in giving evidence, told me that the previous day he had
measured the gap at the skirting in the lounge which he had previously found to
be 12mm and found that this had increased to 23mm.
The
recommendation made by the plaintiffs’ experts is that the entirety of the
ground-floor slab should be taken up and replaced — either on a properly
compacted fill or reinforced and suspended by toothing in the structural walls.
Mr Kingdom’s reaction was that this suggestion is absurd and all that is needed
is grouting and screeding to restore the level.
Because of the
established law that relates to a case such as this I am not primarily
concerned with whether, at this point in time, the slab subsidence is, or is
likely to be, progressive. Nor am I concerned with what — in the light of
matters of which Mr Mortimer could not reasonably have been aware — constitute
necessary or desirable remedial measures. My chief concern is the implication
that the subsidence, as evident in June 1984, would have had to a purchaser
properly advised by a competent surveyor. Evaluating the significance of such
subsidence is, to a degree, an essay in speculation and the Building Research
Establishment has published a paper — Digest 251 of July 1981 — designed to
assist in this task. This states, of floor slab movement:
This is a common
cause of damage and results from inappropriate or poorly compacted under-floor
fill. Damage is generally confined to the slab and the junctions between it and
external walls and also to internal partitions carried on the slab. The problem
usually manifests itself early in the life of the building although it may not
be discovered at the time it occurs and if not serious at this stage it is
unlikely to give rise to long-term progressive deterioration.
The Digest
goes on to tabulate visible damage caused by ground-floor slab settlement
according to five different degrees of severity. I shall read the three middle
classes:
2 Slight.
Larger gaps below skirting board. Some obvious but limited local settlement
leading to slight slope of floor slab; gaps can be masked by resetting skirting
boards and some local rescreeding may be necessary. Fine cracks appear in
internal partition walls which need some redecoration, slight distortion in
door frames so some ‘jamming’ may occur necessitating adjustment of doors. No
cracks in floor slab although there may be very slight cracks in floor screed
and finish. Slab reasonably level.
The
approximate crack width is given. That is not relevant here because there were
no internal partition walls. What is relevant is the gap which a note indicates
refers:
. . . to the
space — usually between the skirting and finished floor — caused by settlement
after making appropriate allowance for discrepancy in building shrinkage,
normal bedding down and the like.
That figure
for the slight category is said to be up to 13. As I read the note, together
with the table, as indeed the experts expressed the view, the proper approach
to the gap is that, if the gap exceeds the maximum for one category, that takes
you to the next category regardless of what allowance is appropriate for
shrinkage and normal bedding down, but that if the shrinkage allowance is a
modest one then it may be appropriate to move to the next category
notwithstanding that the gap falls somewhat below the maximum figure. The next
category is:
Moderate. [A
gap size of up to 19.] Significant gaps below skirting boards with areas of
floor, especially at corners or ends, where local settlements may have caused
slight cracking of floor slab. Sloping of floor in these areas is clearly
visible. (Slope approximately 1 in 150.)
Some disruption to drain, plumbing or heating pipes may occur. Damage to
internal walls is more widespread and some crack filling or replastering of
partitions being necessary. Doors may have to be refitted. Inspection reveals
some voids below slab with poor or loosely compacted fill.
The next
category is:
Severe. [with
a gap of up to 25.] Large, localised gaps below skirting boards, possibly some
cracks in floor slab with sharp fall to edge of slab, (slope approximately 1 in
100 or more). Inspection reveals voids exceeding 50mm below the slab and/or
poor or loose fill likely to settle further. Local breaking-out, part refilling
and relaying of floor slab or grouting or fill may be necessary.
Then it deals
with damage to internal partitions. I note in passing that where the table
deals with the final category of ‘Very Severe’, which it is not suggested is
appropriate here, the note in relation to remedial measures states that:
. . . most or
all of the floor slab requires breaking out and relaying or grouting of fill;
internal partitions need replacement.
It does not
seem to me that the damage visible at the time of Mr Mortimer’s survey could
properly be classified as severe under this table. Arguably the picture altered
once the fill was exposed.
My conclusions
are that the purchaser in 1984, reasonably advised by a competent surveyor,
would have been told the following:
— the
likelihood is that this is old damage and will not get worse;
— if you
want to repair it, it will probably be possible to level it up by grouting and
putting a screed on top;
— there is
a possibility, however, that the position will prove more serious and more
substantial repairs will be necessary.
Looking at the
matter today, I would not condemn as unreasonable the plaintiffs’ stated
intention to have the entire slab replaced. This will obviate the slight risk
that there may have been some damage to the services laid in or under the
floor. I note in parenthesis that the plaintiffs’ experts do not appear to have
considered this risk sufficient to call for prompt repairs rather than the
four-year delay that has so far elapsed in this case. It will not merely ensure
that the damp-proof membrane is free from damage but enable a membrane of
better quality to be installed. It will obviate all risk of further movement.
At the same
time I observe that other house-owners might adopt other approaches to the
predicament in which the plaintiffs find themselves which equally could not be
said to be unreasonable. For instance, the subsidence in the dining-room and
kitchen is not sufficient to disrupt the floor surface or, indeed, to make
itself felt in any significant way. There is no evidence to suggest that it has
moved over the last four years. The area is separated from the lounge by a
structural wall. In these circumstances it seems to me that by no means every
householder would consider it appropriate at this stage to effect the drastic
remedial work to this area that Mr White and his colleagues recommend.
Was Mr
Mortimer negligent in misalignment not commenting?
Not
surprisingly, Mr Mortimer had no express recollection of the degree of
misalignment of the doors on the first floor. His evidence was that he would
have opened and closed these doors and that any misalignment present was no
more than typical in a house of this age and type and no cause for comment.
Mr White, in
his report of July 1984, commented on what he found on the first floor as
follows:
First Floor
Irregularities. The door to bedroom 2 has a gap at the head varying from 2 to
10mm with a minimum at the hanging side. The catch to the door latch has been
moved downwards. The door to bedroom 3 is binding at the top on the lock side
and will not close. There is a 4mm gap at the hinge side. The catch to the two
top doors on the landing will not close and the doors have moved sufficiently
for the components not to go inside. The door beneath one of these top
cupboards to the airing cupboard will not close. The bathroom door has a
greater gap at the top and the hinge side than the latch side.
Conclusion.
There has been some movement in the structural floor at first floor level and
it is possible that some of the partitions rest on double joists which are
inadequate to take the loads imposed upon them.
Mr White’s
report that the door to bedroom 3 would not close was confirmed by Mr and Mr
Cross.
All the
witnesses who dealt with this area of the case, including Mr Mortimer, agreed
that if a door is so distorted it will not close, this should be reported by
the house surveyor. I conclude that Mr Mortimer cannot, on this occasion, have
followed his usual practice of opening and closing the doors on the first floor
and was negligent in not commenting upon the distortions to those doors — in
particular the door to bedroom 3. It remains to consider the implications to
the potential purchaser of a report made in relation to these doors by a
reasonably competent surveyor.
Mr White
ventured the opinion that the misalignment of the doors was attributable to
movement of the structural floor. This view was subsequently explored when
floorboards were taken up to examine the joists. It was found that the block
partition wall between bedrooms 2 and 3 was built directly on the floorboards
and supported via the floorboards not merely by the immediate joists — which
would be overstressed by this role — but also by the adjacent joists.
Deflection of the floor in way of this wall could explain the misalignment of
the doors to bedrooms 2 and 3. It could not explain the misalignment of the
other doors. Serious distortion of the first floor in way of the block
partition wall would result in cracking of the plaster ceiling in the lounge
below. No such cracking was observed and I find that no such cracking was
present.
The evidence
established that a degree of misalignment in the doors of a house of the type
and age of 13 Dane Acres is
which is not uncommon, is a degree of movement of the floor because of
inadequate support for partition walls. In my judgment, a competent surveyor would
have advised the house-purchaser that this was a possibility. But Mr Mortimer
tested the first floor for springiness under his own weight and noted it ‘sound
with minimal deflection’. Having regard to this, and to the sound state of the
plaster below, I do not consider that a competent surveyor would have advised
that the misalignment of the doors was likely to prove symptomatic of the need
to incur significant expenditure on structural reinforcement. He would,
properly, have left the purchaser with a degree of concern about the
first-floor doors — but with the belief that the remedial work required was
unlikely to be more than adapting the doors and their catches — albeit that the
end result would be somewhat less sightly than doors fitting square and flush
in their frames.
The plaintiffs
are now advised, on the basis of Mr Barker’s calculations, that they should
install a reinforced steel joist under the partition wall between bedrooms 2
and 3 in order to give that wall adequate support. Again I would not condemn
the plaintiffs as unreasonable if they adopt this, or an alternative remedy
discussed in evidence, to remove the theoretical overstressing that Mr Barker’s
calculations have disclosed. But equally I can envisage other householders who
would decline to expend a substantial sum on rectifying an undesirable design
feature which does not appear to represent any practical danger to the
structure.
Was Mr
Mortimer negligent in failing to comment more fully on the loft conversion?
The roof of
the property was originally supported by a series of triangular trusses, each
truss being spanned by a number of internal inclined members, some in
compression, some in tension, forming a series of smaller triangles within the
truss. At some time prior to 1979 this loft area was converted in a manner that
can best be described by reading from the report of Mr Barker:
The loft area
has been converted into what would be described as a habitable room with access
to it via a pull-down loft ladder. To facilitate the room alterations were made
to the original roof trusses by removing internal inclined members and
introducing new ones vertically from the lower node points to form the room
size. A raised floor has also been introduced and new joists taking support off
the original ceiling joists.
This conversion
was significant in two material respects which should have been known to a
competent surveyor.
(i) The original roof space
design would not cater for the kind of live loading that could be imposed by
user of a room.
(ii) A roof truss is designed
on the basis of the strength that will be contributed by all its members acting
in unison. The effect of removing a member of a truss, or replacing it with a
member in a different place, will be to invalidate the original design concept.
The actual effect of such a change can be calculated only with difficulty,
technical expertise and the aid of a computer.
Unless the
relevant design calculations had been done for the conversion, Mr Mortimer
should have concluded as follows, from the fact of the conversion alone:
(i) The loft room would not
necessarily be structurally strong enough to sustain live loading if used as a
room.
(ii) The conversion might
have reduced the strength of the roof, even if used solely as a loft space, to
a significant extent.
What Mr
Mortimer reported was as follows:
Roof void has
been mostly converted into a small room with excellent natural daylighting from
a window in the flat wall but access is by metal loft ladder only and there is
no proper staircase. Specific inquiries should be made as to whether or not
this improvement required planning permission or building regulations and
certainly if proper access was to be provided then both of these would
undoubtedly be required, otherwise the basic construction of the roof is sound.
He stated
later in his report:
No adverse
planning or local authority proposals known or foreseen and no apparent
contravention of planning requirements or building regulations although I have
already stressed that specific inquiries should be made as regards the loft
conversion and your solicitor should, however, raise formal inquiries on all
matters before exchange of contracts and we shall be pleased to advise you
without extra charge in the light of the answers to these inquiries.
Mr and Mrs
Cross did not read these comments as a warning that the design of the roof
alteration might be suspect, nor in my judgment should they reasonably have
done so. They referred the question of planning and building regulation
approval to their solicitor. He drew a blank on his inquiries because the
conversion was effected before the vendors had themselves acquired the
property. Mr and Mrs Cross took the matter no further.
In my
judgment, the comments made by Mr Mortimer in respect of this roof conversion
did not deal adequately with the position. He should have informed the
plaintiffs that unless building regulation approval had been obtained for the
conversion it would not necessarily be safe to use the loft as other than a
light storage space. As far as the adequacy of the roof structure itself was
concerned, however, I consider that Mr Mortimer could properly have been
reassuring. He checked the appearance of the roof from the outside and found
not a trace of distortion or irregularity — not a tile disturbed. Those joists
which were visible inside the roof he inspected and found no sign of distress.
It is suggested by the plaintiffs’ experts that the joists in the eaves may
have been stressed. A simple inspection at a cost of £150 would determine if
this is so, but no one has thought that such an inspection is worth carrying
out. There is a degree of cracking along the line of the plasterboard in one of
the ceilings below the loft space, but on the evidence I am satisfied that this
of itself is not untoward and is not evidence that the roof is overstressed.
Mr Mortimer
concluded that the converted loft was sound. In my judgment, that was a fair
conclusion — though Mr and Mrs Cross were entitled to know that the security of
the roof they were buying was no longer underpinned by the original design
calculations.
Mr Barker has
been unable to satisfy me, or indeed as I understand it himself, that this roof
is unsafe in its present condition. His calculations, dealing with each member
of the altered truss as an individual member, show a significant degree of
overstressing of joists under the maximum theoretical loading if the loft room
is used as a room. This, as I understand the position, envisages the
possibility of a vigorous party taking place in the loft room while the roof is
laden with snow and a gale howls without.
The
plaintiffs’ experts have recommended remedial work necessary to produce a loft
room that can safely be used as a room. This is substantial; the favoured
alteration involving, in effect, the removal and complete rebuilding of the
roof.
The prospect
of this expenditure is not, in my judgment, one which the reasonable
prospective purchaser would have anticipated had Mr Mortimer dealt adequately
with the loft space in his report. Such purchaser would, however, have
approached the house on the basis that no significant credit should be given
for an extra habitable room in the loft. I add that had any purchaser wished to
use the loft room as such a degree of further conversion, particularly to the
access, would be desirable.
I have thus
found Mr Mortimer in breach of his duty of care on three counts. My judgment
might suggest that he is a slapdash surveyor and that this was a slapdash
survey. If so I would like to correct that impression. Mr Mortimer’s notes show
that he took a lot of care over this survey. I believe he attempted to apprise
the plaintiffs of the effect of the loft conversion; his failure in that
respect was in the form of his report. As to the first and ground floors, Mr
Mortimer had inspected many houses before in Dane Acres. His firm had inspected
this very house on the occasion of its previous sale. Familiarity perhaps
lulled Mr Mortimer into a slight sense of false security. The result of this
action should not be taken as a reflection on his general competence.
The
measure of damage
Counsel are
agreed that the measure of damage in this case is that established by the
decision of the Court of Appeal in Philips v Ward [1956] 1 WLR
471. The starting point is that the plaintiffs are entitled to the difference
between the price that they paid for the property, under the influence of the
defendants’ report, and the market value that the property would have had if
properly described by the defendants.
The defendants
summarised the property as follows:
No evidence
of structural fault or significant disrepair and any item of disrepair noted is
of a relatively minor nature although, of course, requiring appropriate
attention.
In fact, the
defendants ought to have drawn attention to defects on the ground and the first
floor and to the degree to which there was a question-mark over the loft
conversion.
The cost of
the works recommended by Mr White — ie a new ground-floor slab throughout, RSJ
on the first floor and rebuilding the roof — would in 1984 have been about
£15,000 including VAT
Harnetty [FSVA], a valuer, gave evidence for the plaintiffs that the market
price of this house in sound condition would fall to be reduced by the total
cost of these repairs plus a 5% factor which he described as a stigma factor,
reflecting some doubts that any purchaser would have as a consequence of the
fact that repairs had been effected. Mr Kingdom said that this house in the condition
that it is now known to be in would be worth the price it was sold for in 1984;
the defects, in so far as they exist, having no effect on market value at all.
Both these
experts were, it is plain, starting from extreme positions: Mr Harnetty that
the house has severe structural defects making it absolutely necessary to do
all the work recommended; Mr Kingdom that there is nothing wrong with this
house that a bit of screed downstairs will not put right. In fact, I have to do
my best to find the appropriate position between these two extremes having
regard to the facts as I have found them.
Mr Harnetty
said that about £1,000 of the market value of the house was attributable to the
room in the roof. I make a reduction of £1,500 in relation to this room,
reflecting first of all the fact that it cannot safely, in my judgment, be used
as a room and also the point I made that the roof structure as a whole is no
longer underpinned by the original design calculations. Thus I view the
unofficial conversion with those consequences as a minus rather than a plus
factor.
As far as the
basement and ground floor are concerned, the purchaser would have seen the
certainty of some repair to the ground floor, plus a degree of general
uncertainty which, in my judgment, would have been a significant factor when
considering what to pay for this house. I estimate the reduction in value
attributable to those matters at £4,500, making an overall diminution in value
of £6,000, which will attract interest as claimed at the rate of 12 1/2% for
4.67 years, subject to any point that Mr Tyrell may wish to make on interest;
he has not yet addressed me on that matter.
The
authorities to which I have been helpfully referred by counsel establish that a
plaintiff in the position of these plaintiffs is entitled to the incidental
expenses of taking reasonable action to deal with defects, notwithstanding that
their measure of damage is not based on the reasonable cost of taking such
action. This is not perhaps entirely logical, but it is well established and
seems to me not unreasonable. These plaintiffs impressed me as purchasers who
were plainly anxious to have a house in thoroughly sound condition and the
decisions that they have taken as to what they intend to do by way of repairs
reflect that fact. I have indicated that I do not consider they can be said to
be acting unreasonably in effecting repairs to the ground and first floor,
though they are not entitled to the cost of those repairs by way of damages. I
do not, however, make the same finding in relation to the suggested repairs to
the roof.
In these
circumstances my task of estimating the expenses that will be incidental to
effecting these repairs is not at all an easy one. I have had a degree of
evidence on cost of alternative accommodation for the overall repairs, the
costs of removing furniture to storage and bringing it back. The repairs
contemplated will involve, I find, the need for the plaintiffs to vacate the
premises for a period and to remove furniture and fittings from the ground
floor. The plaintiffs’ plan is to buy a mobile home and install it beside their
house while these works are effected and then to resell it at 50% of the
purchase price. They calculate that this would involve little more expense than
to rent accommodation for the period, but that is on the basis that it will be
impossible for them to rent accommodation for a period of less than six months.
I am not persuaded that that is the position. Doing the best I can I allow by
way of damages for these incidental expenses the sum of £2,500.
In addition to
that there is one further head of general damage that the authorities establish
is recoverable; that is damages for the distress and inconvenience consequent
upon both the existence of the defects and the reasonable action taken to deal
with them. The plaintiffs have lived with a hole in their hall for four years.
I do not consider that they are entitled to damages to reflect that fact, for
it seems to me that that was a factor which they could earlier have mitigated.
But there is an allowance to be made for the inconvenience to date of the
unsatisfactory features of their ground floor and, more significantly, an
allowance for the considerable inconvenience and dislocation that will occur
when these repairs are carried out, which will include the fact that they will
not be in a position to have their 19-year-old son living with them, although
the cost of his living somewhere else is, in my judgment, as Mr Tyrell
suggests, too remote to form any head of damage. I award £500 to each plaintiff
in relation to these matters.
Finally, there
are two incidentals which are not, as I understand it, challenged: £147 for the
cost of making good the hole in the hall and a lump sum figure of £150 to cover
the type of incidental expenditure the plaintiffs necessarily incur when a case
like this occurs
Judgment was
given in favour of the plaintiffs for a total of £13,115.75 (which included
interest at 12 1/2%) and costs.
