Negligence — Survey report — Cracks in structure — Condition of roof — Surveyors’ advice that purchasers should insure against subsidence — Subsequent discovery of serious defects in roof and complaints of movement in main structure — Court of Appeal uphold judge’s decision that surveyors had not been negligent — A comment on pleading
husband and wife, purchased a house at Burgess Hill in 1984 after receiving a
survey report from a partner in the respondent firm — The report drew attention
to numerous cracks in the wall structure and elsewhere; pointed out that the
house stood on shrinkable clay; noted that there was a fir tree in the front
garden which might cause trouble; and advised the appellants that insurance
protection should be obtained, if possible, although there might be difficulty
about it — As regards the roof, the surveyor noted that the felt had been laid
in an ‘unconventional’ way, over instead of under the battens, possibly after
bomb damage; that there was no apparent dampness coming from the roof; and that
in general his impression was that the roof covering was effective — The
surveyor had looked inside the roof space but had not been on the roof, not
having had long enough ladders to inspect the valley gutters — The appellants
purchased the house for £87,500, a little more than the £86,000 at which the
respondents had valued it
the appellants started with the roof, which was the subject of a writ late in
1984, but over succeeding years up to the date of trial in 1987 other
complaints were added, including movement of the structure and the need for
underpinning — The sum claimed in the end was some £22,500, being the
difference between the £87,500 paid and £65,000, alleged to be the value of the
house in its defective condition
the trial found that the respondent firm had not been negligent under either of
the main heads, subsidence or roof defects — As regards subsidence, the judge
held that the appellants had in fact received the best possible advice, namely,
to insure against the risk — They had done so and had received £15,700 towards
the cost of underpinning; the insurers did not accept that all the underpinning
proposed was necessary — The appellants thereby recovered more than they would
have been likely to obtain by other means — As regards the roof, the judge held
again that the respondents had not been negligent — The surveyor had inspected
the inside of the roof and had seen no evidence of water penetration, such as
would have put him on notice that a further investigation from the exterior was
necessary — It had been submitted to the court, although not pleaded, that the
placing of roofing felt over the battens, which the surveyor had observed,
should have alerted him to problems arising from lack of ventilation, possibly
leading to deterioration of the slates, a substantial proportion of which were
in fact subsequently found to be rotten, soft and powdery — The judge, however,
was not impressed by witnesses who agreed with this point when examined in
court but had not referred to it in their reports
for the appellants on appeal that the insurance was irrelevant; that the
respondents had not made it clear that the cracks might require underpinning;
and that the survey report was altogether too sanguine in its tone, encouraging
the appellants to buy a house which turned out to have serious defects — The
Court of Appeal, however, agreed with the trial judge in rejecting the charges
of negligence in regard to both roof and main structure — As regards
subsidence, the surveyor had sounded a note of warning at every point — He had
made it clear that the house had defects characteristic of its age and
situation — His concern was shown by his advice in regard to insurance, which
resulted in a substantial contribution being made by the insurers — As regards
the roof, the court agreed that, as the inspection of the inside showed no
evidence of water penetration, the surveyor was not negligent in failing to
carry the investigation further — Russell LJ criticised the absence from the
pleadings of the particular allegation of negligence based on failure to follow
up the consequences of positioning the roof felt over the battens — This was a
matter pressed both before the trial judge and the Court of Appeal but it found
no place in the pleadings — It was not a satisfactory procedure and it could
reflect adversely on the weight to be attached to expert and other testimony —
Appeal dismissed
No cases are
referred to in this report.
This was an
appeal by the plaintiffs below, John Eley and Jean Pamela Eley, from the
decision of Judge Fallon QC, sitting as a High Court judge, dismissing their
claim for damages for negligence against King & Chasemore, a firm of estate
agents, surveyors and valuers, in respect of a survey report on a house at 50
Park Road, Burgess Hill, West Sussex.
Philip
Naughton QC and Christopher Gosland (instructed by Laytons, of Bristol)
appeared on behalf of the appellants; Paul Darlow (instructed by Barlow Lyde
& Gilbert) represented the respondent firm.
Giving the
first judgment at the invitation of Dillon LJ, GLIDEWELL LJ said: In June 1984
the plaintiffs, Mr and Mrs Eley,
Sussex. They instructed Mr G Haynes FRICS, a partner in the defendant firm, to
survey the house and to advise them about its structure and condition. Mr
Haynes inspected the property on July 2 1984. On July 4 1984 he sent to the
defendants a written report and on the same day he sent to Mr Eley’s employers,
from whom Mr Eley was intending to borrow the purchase price or a substantial
proportion of it and who were to act as mortgagees in the transaction, a
shorter report for the purposes of valuation. Mr Haynes reported, and it is
common ground, that the house was built in approximately 1850. A number of
additions have been made to it subsequently — some only a few years before the
date of the report. His report to the defendants goes into very considerable
detail. It runs to some 26 pages of typescript. It says, among other matters,
that in the walls of the structure he had observed some four cracks in the
rendering and four cracks to structural features in the cornices to windows,
above the entrance porch, to the bay window in the drawing room, and in the
garage. Under the heading ‘Walls Generally’ he said:
This house
stands on a shrinkable clay subsoil which would be liable to be affected by
seasonal changes in its moisture content. This is not something peculiar to
Park Road it applies to most of the area and indeed to most of West Sussex
north of the Downs . . .
In the case of
this property we have mentioned numerous cracks in the main wall structure and
in the exterior rendering, these may well have to be attributed to the nature
of the subsoil, and of course rendering is always going to be sensitive to even
slight movement. As you will probably have noticed there is a very tall fir
tree growing in the front garden quite close to the building this will
certainly have caused the major fracture in the garden wall at a point quite
near to its trunk and it could well be affecting the house walls although it is
deciduous trees that usually cause the damage rather than shallow rooted
conifers . . .
The
combination of site conditions with the shallowness of the footings must
therefore cause you some concern although to be fair one has to bear in mind
that the original part of the building has probably survived for about 150
years and we would think it most unlikely that really serious trouble is now
going to develop unless it is related to the fir tree. We never like to
pronounce judgment unreasonably on a fine tree and the decision must be yours,
the present owner admits that she worries about it not only from the point of
view of root damage but also she fears that it might blow over during strong
winds . . .
All houses on
the clay are more at risk than those constructed on a more stable subsoil, it
would be a good idea to see if you could obtain insurance protection against
subsidence, ground heave, settlement and landslip although with so many present
and previous cracks in the walls such cover might not be easy to obtain.
Then under the
heading ‘Roof Coverings’ he said:
The main roof
slopes are covered by natural slates, we would say that possibly the roof may
have suffered bomb damage during the last war because there has obviously been
a fairly major overhaul which would have involved the complete stripping of the
whole roof and refelting. This has been done in a most unusual way the felt
having been laid over rather than under the battens. This is tearable felt
which is not reinforced with hessian, the sort of material that would have been
available in the late forties or early fifties. In the process of replacing
slates asbestos slates have been introduced rather than natural slate which
leaves the roof looking very patchy.
Our general
impression is that this roof covering is proving to be effective, we would not
think that its patchy appearance would worry anyone very much and at least
there is a second line of defence in the form of the felt even if it is not of
very good quality and if it has been secured in an unconventional manner.
He then
referred to the valley gutters; he said at the end of that passage:
It would
require long ladders to get up on to the valley gutters and we would feel
happier had we been able to inspect them; however, we found nothing to suggest
they have been recently giving trouble and we would regard the valley gutters
as just one of the complications which one inevitably takes on in buying a
property of this nature. We would suggest that you should make periodic
inspections of the valleys and you should remember that a danger period could
be after heavy snow fall.
I should
interpolate that when he said that some of the replacement slates were asbestos
slates, he was inaccurate. They were in fact a slate from a particular quarry
in Cornwall which is almost white in appearance, I gather.
At the end of
his report, he said under the heading ‘Generally’:
We could have
predicted after spending only ten minutes at Burgess Hill that our report on
this property would include a certain amount of adverse comment. On the whole
we would expect that many of the points which we have raised you will already
have anticipated and we would not say that the property has more than its share
of trouble. Houses should not show cracks and where these exist they are always
an indication that there is some sort of strain. You will have to make a
decision about the fir tree, we hate saying it but we think that probably it
ought to go
and then he
said that would be a major operation and the cracks in the rendering should be
cut out.
On the whole
— he said
later —
we regard this
as a building that should make a very pleasant family home, you cannot expect
to buy a property of this age without taking on a certain amount of trouble and
we would say that to some extent the defects and shortcomings are reflected in
the price that is being asked for the property.
We have not
inspected any part of the [property] which is unexposed or inaccessible and we
are, therefore, unable to report that woodwork or timbers are free from rot,
woodworm, beetle infestation or any other defect.
He had,
however, been able to look inside the roof space and had reported not merely on
the structure of the roof, which again he remarked on as being somewhat
unusual, but also that there was no apparent dampness coming through the roof.
In his report to the prospective mortgagees, Mr Eley’s employers, he said in
relation to the possibility of subsidence:
All buildings
on the clay are more at risk than those on a more stable subsoil; we would
therefore advise insurance cover against subsidence, ground heave, settlement
and landslip but not because we are particularly apprehensive about the main
wall structure; we would be saying the same about any building in this area
— and he
expressed his opinion —
that the
current value of the freehold interest with . . . vacant possession . . . is .
. . £86,000.
It is now
agreed, though initially it was not agreed, that although he did not in terms
say ‘I did not go up on to the roof’ in the two passages in his report to Mr
and Mrs Eley to which I have referred — namely that which makes it clear that
he had not inspected the valley gutters, and that which said he had not seen
anything that was inaccessible — it was made clear that he had not been up on
to the roof.
After
receiving that report Mr and Mrs Eley purchased the house on September 4 1984
for £87,500 — slightly more than Mr Haynes’ valuation — and they duly obtained
insurance cover against subsidence and the other matters referred to by Mr
Haynes. The tree was felled.
Shortly
afterwards a roofing contractor was instructed to do a number of jobs,
including inspecting and, where necessary, repairing or replacing the gutters.
That firm subcontracted part of the work to a firm called Kaycee Roofing, whose
proprietor is a Mr Cragg. On October 2 1984 Kaycee Roofing sent a quotation for
necessary work to the main contractors, Stevensons, for doing various items of
work to the roof, including stripping off existing slates and battens; cleaning
the rafters; fitting a new underfelt and then refitting the battens and fitting
new roofing tiles or asbestos slates. The work also included work on the gable
ends, to the valley gutters, and lead flashings around the chimneys. The
quotation for the more expensive asbestos slates which was eventually accepted
was in the sum of £4,441 plus VAT, which comes in round figures to £5,107.
The work began
almost immediately and was carried out during October and early November 1984.
According to Mr Eley’s evidence, which is not challenged, it lasted some four
or five weeks in total. On October 17 1984 Mr Eley wrote a letter to Mr Haynes,
in which he said:
Further to
your structural survey of the above property on July 2 1984, I am very
perturbed and not a little annoyed to have encountered major roofing problems
on moving in.
Contractors
inspecting the gutters with a view to replacement — as recommended in your
report — found extensive areas of rotten slates and holes in the roof itself.
The rain of recent weeks has only been kept out by the roofing felt.
I am concerned
and surprised that:
i) you did not inspect the roof more closely
ii) you did
not advise a more detailed inspection — as with the wiring
— I
interpolate that is a reference to a specific recommendation for an inspection
of the electrical installation —
particularly
in view of the roof’s patched appearance.
There is
little doubt that had we been aware of the true state of the roof we should
have negotiated a substantial reduction in purchase price. As it is, we are
faced with the full cost of re-roofing.
I would
appreciate both an explanation and some redress.
That was the
first intimation that Mr Haynes or his firm received that a complaint was being
made about any failure on his part to report properly in respect of the
property or to inspect the property properly. It is, however, correct to say
that Mr Eley in his evidence said that before writing that letter he
unsuccessfully attempted to
Haynes, in response to that letter, went to inspect the property the reroofing
work was complete or virtually complete, and thus he was not in a position to
make any comment about whether that which was done was all necessary.
The specially
endorsed writ in this action was issued on December 6 1984. The original
allegation in relation to the roof was:
. . . the
property was at all . . . times in a defective condition because extensive
areas of the roof were covered with rotten slates and in some places there were
no slates at all so that the rain was only prevented from penetrating the
property by the roofing felt.
That is para 6
of the original statement of claim. No complaint was made at that stage about
any other matter. The statement of claim was amended three times thereafter: on
March 27 1985, on March 19 1986, and finally at the trial, advance warning
having no doubt been given to the defendants of the intention to ask for a
further amendment. That was on December 2 1987.
As so
re-reamended, the allegation which I have just read was contained in the
statement of claim, but the same paragraph contained also this further
allegation:
Further the
roof timbers adjacent to the cracked chimney stack were rotten, the copper roof
valley linings were holed and parts of the soffit and facia boards were rotten.
The chimneys had no front or side flashing.
And then a new
paragraph:
Further or
alternatively at the time of inspection it was apparent that there was past
movement of the main structure and it was continuing. Repairs to old fracturing
have reopened and movement is occurring within the arch and lintel of the
entrance porch which has become dangerous.
In the next
new paragraph there was an allegation about timber infestation which is not now
pursued, and in a new paragraph under particulars of negligence the following
allegations are made:
(a) The Defendant failed to carry out a
sufficiently close inspection of the said roof so as to reveal the
aforementioned defects and/or failed to advise the Plaintiffs that they had not
done so.
(b) If which is not admitted the Defendants did
carry out a close inspection of the roof then they failed to advise the
Plaintiff of the aforementioned defects in the said roof.
(c) relates to timber infestation.
(d) The Defendants failed to advise the Plaintiff
that the movement of the structure was likely to continue and/or that
underpinning was advisable.
The damages
claimed were amended on three occasions. In the event it is common ground that
the proper measure of damages is the difference between the value of the
property as advised by Mr Haynes, or as paid by Mr and Mrs Eley, and that which
it actually bore with its defects. One way of getting to that of course is to
find out how much it costs to put right the defects and discount for any
improvement, but the proper measure is the first sum to which I have referred.
In the finally amended statement of claim that sum, as I follow it, is put at
some £22,500 — the difference between £87,500, which the Eleys paid, and
£65,000, which is alleged to be the value of the property with its defects.
The matters of
which complaint is made thus now come under two main heads: in relation to the
structure and in relation to the roof. The learned judge found in the event
that Mr Haynes had not been negligent in respect of either. The greater part of
his judgment is concerned with matters relating to the structure. The roof is
dealt with in rather less detail.
The history of
how complaints came to be made about the structure can be summarised as
follows. In June 1985 as a result of some of the cracks which were apparent at
the time of Mr Haynes’ inspection widening, the plaintiffs instructed a builder
called Piper to quote for the repair of the porch lintel. He estimated that the
work would cost some £245, together with the cost of a new lintel. On July 2
1986 the plaintiffs obtained a report from Hemsley Orrell, who are structural
and civil engineers. They reported that:
the building
has suffered structural failure and distress as a result of soil movement.
(Subsidence) 2. The majority of the building is currently stable, but
unfortunately also unpredictable as can be seen by the collapse of the porch. 3
. . . . the foundations are more substantial and slightly deeper . . . than
those that we have come to associate with subsidence, [but] they do not conform
to current standards. 4. The soil report commissioned by us reveals that the
soil is highly susceptible to seasonal shrinkage and swelling.
They discussed
what should be done and advised underpinning of the entire building but said
that the northern elevation was not so much at risk.
Later, Mr
Derek Thurlow FRICS was asked to advise and he also advised that substantial
underpinning was necessary. Work of underpinning was carried out throughout the
southerly part of the house involving the south wall, the two return walls on
the east and west sides and a number of internal loadbearing walls.
I have already
referred to the particulars of negligence alleged. I consider first the
allegation that Mr Haynes was negligent in failing to advise the plaintiff that
the movement of the structure was likely to continue or that underpinning was
desirable. The evidence in support of the valuation is that of another valuer,
Mr J M Ferdinando [FRICS]. He advised that the value of the property in good
condition would be what the Eleys paid for it, £87,500; that as a result of the
works necessary to the roof that value was reduced by £4,000; and that as a
result of the works necessary to the structure the value was further reduced by
some £20,000 to £63,500, which is slightly less than the amount claimed. A claim
was made on the insurance policy and in the event the insurers paid
approximately £15,700 towards the total cost of the underpinning. They did not
accept that all the work of underpinning was necessary and thus were not
willing to pay the entire cost.
In his
judgment dealing with the structure the learned judge said:
In these
circumstances I ask myself this question: What was wrong with Mr Haynes’ report
qua the subsidence? The answer is
‘nothing’. Clearly he appreciated that there was a risk which was difficult to
quantify. The best way to cover the risk was to make a clean breast of the risk
to insurers and see if they would underwrite that risk. Insurers underwrote the
risk with the result that the plaintiff has done better than he would have done
by any other means. In my judgment not only did the plaintiff receive
non-negligent advice, he received the best possible advice he could have
received, and what is more, he adopted it and profited by it. In my judgment
his claim regarding the foundations is totally untenable. By adopting the
advice he received he recovered more than he would have recovered by any other
means.
Mr Naughton
for the plaintiffs — the appellants in this court — submits that the fact that
on Mr Haynes’ advice insurance cover against subsidence had been taken out is
irrelevant to liability under this head. He argues that, because Mr Haynes did
not make it clear that the cracks were evidence of defects which either would
or might in the not distant future require underpinning, he was negligent. Mr
Naughton suggests in argument that Mr Haynes’ report was far too sanguine, that
in its tone it was encouraging, and that it resulted in Mr and Mrs Eley being
encouraged to buy a house which, so far as its structure was concerned as well
as the roof, suffered from serious defects which rapidly needed to be put
right.
I have already
read the material passages from Mr Haynes’ report. It is perfectly correct that
he did not advise the Eleys not to purchase the house, nor did he in turn
advise them that the price which the purchaser was asking was too high. He
valued the house at a figure very slightly less than they eventually had to pay
in order to purchase the house, because there was evidence that the vendor
would not have accepted much less. But at every point to which he referred he
sounded a warning. He made it clear that the house had defects which were
characteristic of its age and situation. He made it clear that there had been
cracks both in the structure and the exterior cladding of the building as a
result of subsidence, and although he said that he did not expect them to be
major problems in the future he certainly expressed the fear that there might
be a risk, and he gave them advice that if they could obtain insurance cover
against that risk they should do so. Indeed Mr Haynes expressed the view that
they might have difficulty in getting insurance cover. I would not myself have
been wholly surprised if some insurance companies, in the light of his report,
had been a little reticent about insuring this property against future
subsidence. But insurance cover was duly taken out and within a very short time
a claim was made for further subsidence occurring (it must have been for
further subsidence occurring after the date of purchase obviously, for cover
would not extend for subsidence which had already occurred). The claim made was
met to the extent to which I have already referred.
In my
judgment, the judge was entirely correct in this part of his judgment. The
insurance was entirely relevant to the question of liability, because it was Mr
Haynes’ way of suggesting that the plaintiffs should cover the risk which he
was advising them existed, even though he did not suggest it was as immediate a
risk as in the end it turned out to be. Their acceptance of that advice, as the
judge said, resulted in a substantial part of the expense in which they were
involved being met not from their own funds but by insurance. I agree with the
learned judge that it is not proved that in this respect Mr Haynes was negligent.
I have not so
far dealt with a subsidiary argument advanced by Mr
behalf of the plaintiff was another surveyor, a Mr H C Church. Mr Church had
been instructed by another, earlier, potential purchaser to survey the
property. In the event, that purchaser did not proceed and so the transaction
fell through. In his report dated May 19 1984 Mr Church referred to the
condition of the property. Having referred to the cracks and said that the tree
ought to be felled, he said:
The
foundations still appear to effect slight movement being progressive over the
years by the combination of these factors and I am of the opinion that some
underpinning will be necessary in the future although not immediate. Regard
must be had to the heavy expenditure that may be involved both in this work and
the decorative and general repair then incumbent, and it is my considered
opinion that the Vendor should reasonably be expected to allow a sum
commensurate in his selling price, and I would suggest a figure approximating
£8,000 as a fair contribution.
In other words
Mr Church, having referred to the prospect that underpinning would be necessary
in the future though not immediately, suggested that in consequence the
purchasers he was advising should seek to have the price reduced to some £79,500.
He did not advise that insurance should be taken out against this. He was
cross-examined about that matter and at the end of his cross-examination he was
asked the question:
And of
course, had your purchaser acted on that,
— meaning his
report —
with the
substantial reduction that was proposed, he would have paid something like
£79,500? A. Presumably, yes. Q. Without,
unless he had acted off his own bat, the specific benefit of an insurance
policy that might pay him back if the building were to subside in the
future? A. Well, I cannot answer that.
He could, I suppose.
And then the
judge asked:
But you did
not suggest it, did you? A. No, I did
not suggest it, no.
In my
judgment, Mr Church was suggesting one way of dealing with the potential
problem of the cost of underpinning: a reduction of the price below £87,500. Mr
Haynes suggested another: the taking out of an insurance policy. In the event
Mr Haynes’ advice proved to be economic and more worthwhile than Mr Church’s
because it produced a larger sum as a contribution towards the total of the
cost.
Quite apart
from that, for myself if what is relied upon, as I think it was partly by Mr
Naughton, is the difference in value between Mr Church and Mr Haynes,
disregarding the reason for it, I fail to see how, simply because one surveyor
has advised a price approximately 10% less than another surveyor, one can
properly find that the surveyor advising the higher price has been negligent.
But, as I say, the real point is that Mr Haynes met the problem with his
suggestion of insurance, and the judge, in my view, was entirely justified in
finding that that in itself was the answer to the allegation of negligence.
I go on
accordingly to consider the allegations relating to the roof. The original
allegation in the statement of claim is, as I have said, that Mr Haynes failed
to inspect the roof properly and, as I have also said, it is now accepted that
he made clear in his report that he had not been up on the roof; he had only
seen from outside what he could see from ground level. He also made it clear
that he did inspect the inside of the roof and he saw no water penetration. The
judge held that in this respect he was not negligent and again I agree. He
would, of course, have had to arrange for a long ladder to be provided if he
was going to go up on to the roof, and if he had seen any sign of water
penetration from the inside of the roof space it may well be that he would have
been put on notice that would have required him to advise on further
investigation of the roof from its exterior. In the absence of any such sign,
and it is not suggested there was any such water penetration through the roof,
I respectfully agree with the judge that the allegation as pleaded in the
statement of claim again does not succeed.
However, an
alternative allegation was argued before the learned judge, although it was not
pleaded and he did not require that it should be pleaded. It has been canvassed
before us, and indeed I think I am right in saying that it is really the main
plank of Mr Naughton’s argument before us in relation to the roof. This arose
out of the evidence of Mr Cragg, the roofing contractor. As I have already
said, Mr Haynes had observed that the structure of the roof was what he called
unconventional in that in the repairs carried out in the late 1940s or early
1950s the roofing felt had been nailed over, rather than under, the battens.
The slates were then affixed directly on top of the roofing felt. That was a
point to which Mr Church, who had reported some six weeks earlier, made no
reference at all. Either Mr Church missed it or, assuming that he saw it (and
he did say that he had seen the interior of the roof also), he obviously did
not think it a matter of any significance.
Mr Cragg was
called to give evidence as to the condition of the roof as he found it when he
first came in to inspect it and when he started on his work of repair. There is
no doubt that his evidence was to the effect that a number of slates were
missing completely on parts of the roof, and that a substantial proportion of
the slates were rotten, soft and powdery and thus had to be replaced. He then
advised that because the roofing felt was over the battens that also ought to
be replaced. So in the end the whole roof was rebuilt: felt, battens on top,
and new asbestos slates on top of that. In that part of his evidence Mr Cragg
was, of course, simply giving factual evidence. He was not tendered as an
expert nor was he put forward as being one of the experts whom the plaintiff
intended to call. No report from him had been put before the defendants’
solicitors. However, during the course of his evidence-in-chief he was asked
whether the way in which the roofing felt had been fixed over the battens had
any effect on the condition of the slates, and his answer was:
In my view as
a roofer, I know that all natural roofing materials, ie slate and clay, do
require ventilation and air round them to be able to dry themselves out both
internally and externally, and a lot of problems have arisen by materials not
having adequate ventilation.
It is only
right to say that that is a matter — that is to say, the fact that if you put
the roofing felt over the battens there is no ventilation underneath the slates
or tiles — to which Mr Cragg had drawn attention in his original report of
October 1984.
The allegation
now made, though not pleaded, is, as I understand it, that although Mr Haynes
both observed and reported that the roofing felt had been fixed over the
battens, he did not go on to draw the inference that as a result there would be
a lack of ventilation on the underside of the slates, and that consequently the
slates were more liable to decay and crumble than if the roofing felt had been
conventionally fixed under the battens. On that matter it is right to observe
that he is not merely in the company of the surveyor who had reported earlier,
Mr Church, but also in the company of Mr Thurlow. This is a point which Mr
Thurlow did not make in his report. Mr Thurlow did not report until he was
called on the scene in 1987.
We do not know
whether Mr Thurlow had read Mr Cragg’s letter of October 1984 in which Mr Cragg
pointed out the defects in the roof and made the very point about lack of
ventilation as a result of the roofing felt being fixed above the battens. It
could have been made available to him, but Mr Thurlow made no such point in his
report. It only came up in his evidence. He was referred to the passage in Mr
Haynes’ report about the felt being on top of the battens and he was asked the
question: ‘In your opinion, as a professional surveyor, would the observation
about the curious way in which the felt had been applied under the slates have
given rise to any warning bells ringing or anything of that kind?’ That was a leading question, a signpost
towards the answer that was desired. Mr Thurlow responded promptly: ‘It most
certainly would’, and he then made the point about lack of ventilation which Mr
Cragg had made. No doubt Mr Thurlow had been in court while Mr Cragg had been
giving his evidence. So he heard it and was really adopting it.
The judge was
not impressed by Mr Thurlow’s evidence in relation to the structure. He
expressed the view that he was not a truly independent witness in relation to
the structure, because he was advising a more extensive underpinning. In
relation to the roof, this evidence of Mr Thurlow looks very much like an
afterthought, though I do not suggest the expression of opinion is wrong — it
was not challenged and it may well be correct. Nevertheless, the fact that Mr
Thurlow did not think it necessary or desirable to refer to this characteristic
of laying felt across battens in his report, or indeed at any earlier stage of
his evidence, is to my mind a strong pointer to the fact that he did not
consider it of any great significance.
Accordingly, I
find it difficult to see how Mr Haynes can be convicted of negligence in
failing to spell out that point in his report. For my part, therefore, in
agreement with the learned judge, who did not consider this argument in any
detail, I would hold that the judge was right not to find Mr Haynes guilty of
negligence in this report in respect of the roof or in failing to inspect the
roof in more detail.
Accordingly,
in my judgment this appeal fails and it should be dismissed.
Agreeing,
RUSSELL LJ said: I add only a few words of my own confined to that part of the
case which was concerned with the roof of
in relation to the roof is that Mr Haynes, having observed the unconventional
laying of the felt, failed to go further in the tendering of advice to his
client. But that allegation found no place in the pleadings. Despite the more
relaxed atmosphere in which civil proceedings are nowadays conducted, it should
always be remembered that it is of great importance that the fundamental issues
to be tried should be reflected in the pleadings. To take a point, as happened
here before the trial judge and later before this court, which is not to be
found in the pleadings is not normally a satisfactory springboard for success.
That is not an observation on a mere technicality. It goes very much to the
substance of the case, because the absence of a pleaded allegation can reflect
adversely upon the weight to be attached to expert and other testimony.
Subject to
those observations I agree with everything that Glidewell LJ has said, and I,
too, would dismiss this appeal.
DILLON LJ also
agreed and did not add anything.
The appeal
was dismissed with costs.
