Negligence — Valuation for building society — Liability in tort — Whether valuer negligent — Damages for reduction in value — Whether additional damages for worry, distress and inconvenience
In October
1986 the plaintiffs purchased a dwelling-house for £56,000 partly financed by a
loan from a building society. The property
was part of a terrace built by the ‘Bison system’. At the request of the building society, the
first defendant provided a valuation report.
An attempt to sell the property in 1988 failed because defects were
discovered by an intending purchaser. The
first plaintiff lost his job and failed to pay mortgage instalments resulting
in the building society obtaining possession in August 1990. It was eventually sold at auction in March
1992 for £29,000, the building society claiming £67,397.59 from the plaintiffs
for arrears and costs. The plaintiffs
were put into temporary accommodation before obtaining a council house
tenancy. It was agreed that the first
defendant owed a duty of care in tort to the plaintiffs. The plaintiffs claimed damages for negligence
alleging that the first defendant failed to observe that a concrete purlin
observable in the roofspace was unevenly positioned so that at one end was a
gap of 40mm. In the event of liability
the plaintiffs claimed in addition to a reduction in value of the property,
damages for worry, distress and inconvenience.
reasonably competent surveyor making a ‘head and shoulders’ inspection of the
roofspace would have observed the unacceptable 40mm gap and would not have
reported, as the first defendant did, that there was no evidence of any serious
defect in the examined parts of the property.
Damages totalling £43,364.65 were awarded which included: damages based
on the difference in value of the property in 1986 if it had been in the
condition represented by the first defendant’s report and its actual value were
awarded in the sum of £36,000; damages for worry, distress and physical
inconvenience of £6,000; and agreed damages of £1,364.65 for legal expenses and
other costs.
The following
cases are referred to in this report.
Smith v Eric S Bush (a firm) [1990] 1 AC 831; [1989] 2 WLR 790;
[1989] 2 All ER 514; (1989) 87 LGR 685; [1989] 1 EGLR 169; [1989] 17 EG 68
& 18 EG 99, HL
Watts v Morrow [1991] 1 WLR 1421; [1991] 4 All ER 939; [1991] 2
EGLR 152; [1991] 43 EG 121; 26 Con LR 98
This was a
claim by the plaintiffs, David Albert Ezekiel and Margie Chrysanthemus Ezekiel,
against the first defendant, Ian McDade, the second to fifth defendants, Roy
Burgess FRICS, Joseph Leckie FRICS FSVA, David Giles ARICS and John Crosbie
FRICS (formerly trading as Brendons), the sixth defendant, Britannia Brendons
(a firm), and the seventh defendant Britannia Estate Agents Ltd, for damages
arising out of a valuation report prepared by the first defendant.
Brian Leech
(instructed by Burch Phillips & Co) appeared for the plaintiffs; Anna
Guggenheim (instructed by Cameron Markby Hewitt) represented the defendants.
Giving
judgment, JUDGE BOWSHER QC said: The plaintiffs claim damages for loss
arising from an allegedly negligent survey made by the first defendant in
August 1986 of a house at 40 Armytage Road, Heston, Middlesex.
All the
defendants are jointly represented, and it has been agreed that no distinction
is to be made between them, although as a matter of law some point might have
been taken that at least the sixth and seventh defendants were not liable for
any default on the part of the first defendant.
By agreement, if there is to be judgment against the first defendant,
there should be judgment against all defendants.
This is a sad
story of our time. While denying
liability on behalf of her clients, Miss Anna Guggenheim expressed sincere
sympathy with the plaintiffs.
Mr Ezekiel,
who is now aged 52, was working in 1986 as an agent behind the ticket counter
of E1 A1 Airlines at Heathrow Airport.
He lived with his wife and three children (they have since had a fourth
child) in a two-bedroomed house in Wood Lane, Isleworth. Mr Ezekiel gave evidence in this trial. He is a sensible and prudent man. The misfortunes which he has suffered in the
last three or four years are not uncommon today. In Mr Ezekiel’s case, I am satisfied that the
misfortunes were not of his own making.
Whether the defendants are responsible is a matter for me to decide.
To get more
room for their growing family, in 1986 the plaintiffs moved from Wood Lane to a
house at 40 Armytage Road. The house at
Armytage Road was bought for £56,000 financed by £16,000 net proceeds from their
previous house and a loan of £40,000 from the Halifax Building Society. The purchase was completed on October 27
1986.
As a condition
of making their loan, the Halifax Building Society obtained a valuation report
on the house from the first defendant in August 1986. The plaintiffs paid for that report and were
sent a copy of it. In reliance on that
report they bought the property without obtaining any more detailed survey of
their own. It is submitted on behalf of
the plaintiffs and not disputed on behalf of the defendants that in the
circumstances the defendants owe a duty to the plaintiffs in tort pursuant to
the principles set out in Smith v Eric S Bush (a firm) [1990] 1
AC 831*.
*Editor’s
note: Also reported at [1989] 1 EGLR 169.
In February
1988, the first plaintiff was made redundant.
After three months he was able to find part-time work with a travel
agency. He also worked as an office
cleaner in the evening to make enough money to keep up his mortgage
payments. In mid-1988 the plaintiffs
decided to sell their house. In
straitened circumstances, they yet had the courage to plan to buy a larger
house with family help, intending to let out a room to someone working at the
airport.
At the peak of
the property market, the house at 40 Armytage Road was put on the market with
an asking price of £82,950. There was
reasonable interest, and a Mr Farooq agreed, subject to contract, to buy at
£79,000. Mr Farooq had the house
surveyed and as a result of the survey withdrew from the purchase. He said that the house had defects and
suggested to the plaintiffs that they should take legal advice, which they
did. This development made the
plaintiffs anxious and depressed. The
first plaintiff’s work was affected and he was dismissed. As a result, the plaintiffs fell into arrears
with their mortgage payments and when the arrears amounted to over £3,500, the
Halifax Building Society issued proceedings.
A possession order was made in March 1990, but as a matter of grace not
executed until August 1990.
After their
eviction from their home, the plaintiffs and their three children were housed
by the council in one room in bed and breakfast accommodation at a cost of
£57.63 per week. To support themselves,
they sold everything they had, including their wedding rings. After about eight or 10 weeks they were moved
to an unsatisfactory two-bedroomed house and then to their present council
house at 237 Great West Road, Hounslow, a three-bedroomed house. By borrowing from friends, they managed to get
the house centrally heated for the comfort of Mrs Ezekiel and one of her
daughters who suffer from asthma and for the care of their fourth child, who
had then arrived. After their eviction,
the council provided the plaintiffs with two garages in which to store their
belongings, but the garages were damp and many of their belongings were spoilt.
From August
1990, the Halifax Building Society tried to sell the property without success
and in July 1991 suspended advertising the property while awaiting a report
from a structural engineer. The property
was put back on the market, but not sold by private treaty and was eventually
sold by auction on March 13 1992 for £29,000.
On October 21 1991, the Halifax Building Society claimed that the
plaintiffs owed them £67,397.59 plus some further legal fees. That will have been reduced by the £29,000
(less expenses) received at auction to about £38,000, but there will no doubt
be additional interest accrued since October 1991. I do not know what are the intentions of the
Halifax Building Society, and they could not be criticised for exercising their
full rights in favour of their investors.
The amended claim in this action is for £37,364.65 plus general damages
for inconvenience and distress so that it seems likely that even if I find the
defendants liable to the plaintiffs and award to the plaintiffs everything that
they are entitled to claim under common law as recently enunciated by the Court
of Appeal (Watts v Morrow (1991) 26 Con LR 98*), the plaintiffs
are likely to be still dependent on council accommodation instead of living in
their own home because the maximum fruits of this action will provide little
for the plaintiffs after settlement of the obligations to the building society
and the Legal Aid Board.
*Editor’s
note: Also reported at [1991] 2 EGLR 152.
With the
assistance of legal aid, the plaintiffs issued proceedings in the Queen’s Bench
Division on May 29 1992. The action was
transferred to an official referee on January 2 1993. On March 18 1993, a date was set for trial to
begin on July 12 1993. The plaintiffs
continued to be dogged by misfortune.
Shortly before trial, the plaintiffs’ expert witness sadly died and a
fresh date was set for trial for December 6 1993, when the trial began, the
plaintiffs having instructed a partner of their deceased expert to give
evidence on their behalf.
The
plaintiffs’ former home is one of a terrace of four houses on the edge of a
council estate near Heathrow airport and it is very convenient for people
working at the airport. When walking
around the estate with counsel, I observed that the estate is well tended and
the buildings well decorated. There are
no graffiti on the buildings. One can
see aircraft landing regularly at Heathrow, but the flight path is a little way
away and there is no substantial nuisance by noise. Although one could smell aircraft fuel
outside Hounslow West underground station when travelling to a view of the
property, there was no similar smell on the estate.
40 Armytage
Road is one of the two middle houses of a terrace of four. The terrace was built in a large panel
precast concrete Bison Unit system. This
particular house had been bought from the council pursuant to statutory
rights. Other adjacent properties were
not so bought.
The report by
the first defendant of which the plaintiffs complain is dated August 29
1986. The report accurately described
the house as being a former council house on the edge of a council estate, the
house being of ‘non-traditional construction with the exterior panels being of
reinforced pre-cast concrete panels with a lightweight inner skin’. The most important sentence of the report was
as follows:
There is no
evidence of any serious defect in the examined areas of the premises and it has
been modernised and improved to a good standard throughout.
After pointing
out some remediable defects, the report concluded:
However, we
believe the current price is realistic and fairly reflects the present
condition.
I bear in mind
that the report was a valuation report and not a structural survey. It is important to distinguish between the
duties of a surveyor making a valuation report and the duties of a surveyor making
a structural survey. There is a most
helpful practice note of the Royal Institution of Chartered Surveyors
describing what is required on a structural survey of residential property. By contrast there is an RICS document
entitled Guidance notes for valuers first issued in December 1985, which
includes the following:
Guidance
notes for valuers on the inspection of residential property: . . .
1(a) The valuation of residential property for
mortgage purposes is, unless the lender instructs otherwise, open market value
as at the date of inspection . . .
(c) Among the relevant factors to be taken into
account will be: . . . .
(ii) construction and general state of repair . .
.
2. The following general principles should be
adopted . . .
(d) If the valuer suspects that hidden defects
exist, he may, if he thinks it necessary, recommend that further investigation
be carried out.
It was common
ground between the parties that in 1986, a surveyor making a valuation survey
of this property would be expected to make what is called a ‘head and
shoulders’ inspection of the roofspace, that is, he should find any trap door
into the roof and at least put his head and shoulders through the trap door and
make a visual inspection.
The technical
evidence in this case has concentrated on a heavy concrete purlin in the
roofspace. The agreed evidence is that
that purlin was constructed with lugs at each end and would have been lowered
into place by a crane so that the lugs fell into slots in other parts of the
structure. It is also agreed that this
particular purlin was unevenly positioned so that at one end there was a gap of
40 mm (just over 1.5 ins) between the bulk of the purlin and the main member of
the wall, and at the other end the gap was 10 mm or less. The expert evidence led on behalf of the
plaintiffs was that this imbalance was dangerous, it ought to have been noticed
and reported on a valuation survey and it was negligent not to report it. That evidence was given by Mr Stephen Whitley
[FRICS], who broadly supported the contents of the expert’s report written by
his partner, the late Mr Victor Oster [FRICS].
The first
point taken on behalf of the defendants was that a reasonably competent
surveyor looking into the roofspace when making a valuation survey could not
have been expected to see the gap of 40 mm.
That point was put forward in evidence by Professor Malcolm Hollis on
behalf of the defendants. Professor
Hollis supported his evidence with coloured photocopies of photographs which he
took of the interior of the roof from the trap door into the roof. Mr Whitley produced coloured photocopies of
photographs which he took which he contended showed the contrary position. After some pressure, I managed to obtain from
the parties glossy prints of the photographs.
The photographs produced did indeed appear to support the contrary
positions taken by each expert. A
photograph taken by the expert for the plaintiffs showed the gap clearly,
another photograph taken by Professor Hollis for the defendants showed only darkness
over the position of the gap. I strongly
urged the parties to
of the trial, by courtesy of the present occupant tenants of the house. I climbed a collapsible surveyor’s ladder and
looked through the trapdoor into the roofspace of the house. First using a torch, the gap of 40 mm at the
end of the concrete purlin was immediately obvious. Within easy reach when standing on the ladder
was a light switch. After switching on
the light and without using the torch that gap at the end of the purlin was
also obvious. During the trial there was
some discussion (which I found extremely odd) of the extent to which a surveyor
should project his head into the roof space to satisfy his duty of care. I have to say that although eventually I
stood on the ladder so that my waist was level with the ceiling (which I did
not find a great imposition) my view of the important gap of 40mm was plainly visible
even when only my head was above the level of the trapdoor. In her closing speech, Miss Guggenheim
suggested that from a distance of 5 or 6 ft a gap of 20mm which might have been
acceptable was not appreciably different from 40mm. I simply do not accept that that submission
is correct in point of fact. The
submission is plausible when demonstrated by a line on a piece of paper in
court, but the appearance of a gap at the end of a purlin is a different matter
entirely.
In his written
statement, Mr Ian McDade [ARICS] did not state that he did inspect the roof
void of this property. He wrote:
During the
course of my mortgage valuation inspection I would have carried out a
head and shoulders inspection of the roof void.
As a result of
a question from me, Mr McDade said in oral evidence that he did carry out such
inspection, but I very much doubt whether he did do so. Certainly he cannot recall any details of any
such inspection and he did not record them.
Mr McDade was quite clear that it was his firm’s practice that a head
and shoulders inspection of the roofspace should have been carried out and he
was required to carry a collapsible ladder and a very high-powered halogen
torch for that purpose. In fairness to
the firm of Brendons, I must make it plain that the system of work which they required
of their former employee, Mr McDade, could not be criticised on the basis of
any evidence given in this trial.
Professor
Hollis’ evidence went far beyond his photographs. In his first report, verified on oath, he
stated:
There are no
readily visible defects within the roof space.
Any unusual gap to a purlin end cannot be seen from the roof hatch. .
. There may be two gaps at the joist end
. . . Even if these gaps are regarded as being a defect, which I doubt, they
were not readily visible looking into the roof void from the hatch.
In a report
written on December 1 1993 in response to the written report of the plaintiffs,
expert Mr Whitley, and also verified on oath, Professor Hollis stated:
Mr Whitley
states that Mr McDade’s head and shoulder inspection of the roof void should,
without question, have revealed the unacceptable joint of the concrete
purlin. This is a matter which is
central to the case. In my view, the
test is whether the defective joint, if that joint is defective, was readily
visible from a head and shoulders inspection.
It is not a question as to whether it could have been revealed but
whether it was readily visible. My photographs
show what one would see generally when looking into a roof space at the time of
an inspection and those show that the purlin joints in question are not
necessarily visible.
In his oral
evidence, Professor Hollis sought to discount the photographs taken by Mr
Whitley. He said that those photographs
concentrate on one element rather than on the roof generally and that they were
taken with a high-speed film which, according to Professor Hollis, tends to
record information one cannot see with the naked eye. As I have no greater claim than Professor
Hollis to express an expert view on photography. I only say that I do not accept his
qualification to express a view on photography generally. What I do say most emphatically is that
visual inspection from the trap door either by torch light or by the installed
electric light reveals the existence of the gap at the end of the purlins far
more clearly than is shown even by Mr Whitley’s photographs.
If I had had
to try this case by reference to photographs and conflicting oral evidence, I
would have been in some doubt. Having
had a view, I am in no doubt. I entirely
accept the evidence of Mr Whitley that Mr McDade’s ‘head and shoulders’
inspection of the roofspace (if he made one) should have revealed the
unacceptable joint of the concrete purlin with the party wall to no 42 on the
front-roof slope. That is in accordance
with the view very strongly expressed by the late Mr Oster in his report. The only excuse for failing to see and report
on the joint would have been if there had been some obstruction in the
way. Mr McDade did not suggest that
there was any obstruction in the way at the time. He did not suggest that there was anything
stored in the roofspace at the time. He
stated in evidence:
I have
difficulty recalling any details of my inspection. I cannot therefore say whether a gap between
the roof purlin and party wall was present at the time of my inspection or
visible from the vantage of the roof hatch, or even possibly obscured by the
presence of stored goods and other furniture.
I find that
any surveyor of reasonable competence ought to have seen, noted, and reported
the gap at the end of the purlin. If
there had been goods stored in the roof which made a reasonable ‘head and
shoulders’ inspection ineffective, he should have reported that and qualified
his report. Instead, Mr McDade reported
without qualification, ‘There is no evidence of any serious defect in the
examined areas of the premises’. The
readers of the report were entitled to understand that the ‘examined areas’
included the roofspace from a head and shoulders inspection.
Whether Mr
McDade ought to have seen and noted the gap at the end of the purlin is only
the first point in the case, but my finding in relation to it affects the whole
of the credibility of Professor Hollis’ evidence, including his evidence in
relation to other issues. He was firm in
his evidence that the photographs he produced gave a fair picture of what could
be seen on a head and shoulders inspection of the roof space. Having rejected that evidence, I approach the
remainder of his evidence with great caution and I only accept it where it is
independently supported, despite his impressive qualifications.
The next issue
raised by Miss Guggenheim for the defendants was whether a reasonably competent
surveyor looking into the roofspace should have concluded from what he saw that
there was a possibility of a serious defect in the property so that the house
should not be accepted as security for a loan or that a structural engineer
should inspect. Professor Hollis said
that the gaps at the end of purlins do not represent defects in
construction. I accept from him that
there is no sign in the property that the gaps have resulted in any distress or
other damage to the property. It may
also be the case, as he says, that repairs carried out by the council to the
adjacent properties 38 and 42 (still owned by the council) have strengthened
the support to no 40. But all of that is
to a considerable extent beside the point.
The questions are, what does the potential buyer think about this
property and what effect does that have on its value? The proof of the pudding is in the
eating. The plaintiffs had a willing
buyer at an acceptable price, Mr Farooq, who withdrew after a survey. The plaintiffs failed to find another
purchaser although they tried to do so.
The Halifax Building Society tried unsuccessfully to sell the property
for 11 months from August 1990 to July 1991 and only succeeded in selling it
after a further eight months (after getting a structural engineers report) at
auction for far less than the plaintiffs paid for it.
The history of
the attempted sales of the property does, of course, have to be viewed in the
light of the developing knowledge of the Bison type of construction. In considering that history one has to
distinguish between high-rise buildings (including the notorious Ronan Point)
and low-rise buildings.
In this
regard, Professor Hollis stated:
In 1986,
building societies were lending on this form of concrete frame. Since that time, the character of lending has
changed and it is now the case that a mortgage is difficult to obtain on this
form of construction.
I accept that
statement as correct so far as it goes, but it does not tell the whole
truth. Professor Hollis’ statement
should be read in the light of the comment made upon it by Mr Whitley:
My view is
that it is now impossible to obtain a mortgage where this form of construction
is involved and, in 1986, it is quite likely that not all building societies
would have accepted this form of construction as representing a suitable
security.
In any event
a prudent surveyor should in 1986 have applied additional care when inspecting
a building involving any type of concrete construction due to suspicions held
generally in the surveying profession towards any form of concrete dwelling.
I accept the
evidence of Mr Whitley that surveyors practising in the area knew of problems
with the Bison system on this estate before 1986. Mr Oster annexed to his report a standard
form letter dated August 9 1984 addressed to council tenants on the estate from
the chairman of Hounslow London Borough Council housing committee referring to
defects inherent in the Bison system.
While Mr Whitley did not see the letter at the time, he knew of the
problem because it was a matter of local politics reported in the local
press. The council set out on a
programme of what they described as ‘essential repairs’. It is not clear when that programme began,
but the third and last phase began in July 1987. Mr McDade and Professor Hollis accepted that
the works on phase 1 probably began before the survey made by Mr McDade. A local surveyor ought to have been put on
his guard about the Bison system in mid-1986 even in respect of two-storey
buildings both from general knowledge of the building system and from local
knowledge of particular problems in the locality.
I am forced to
find that Mr McDade was negligent in the conduct of the survey of this property
and that therefore there should be judgment for the plaintiffs against all the
defendants.
I turn to the
question of damages.
It is agreed
between the parties that on the authorities the main item of damage should be
the difference between the value the house in 1986 if it had been in the
condition represented by the surveyor’s report and its actual value. It is also agreed that the value of the house
in 1986 if it had been in the condition represented would have been what was
paid for it, namely £56,000.
The actual
value of the house in 1986 was stated by Mr Oster in his report to be
£4,960. Mr Oster could find no
comparable sale value and he made a calculation designed to show what would be
the value of the property to an investor buying the property at auction seeking
to gain a return on his money by renting out the property. Mr Whitley did not seek to support Mr Oster’s
calculations. Mr Oster’s calculations in
any event do not take into account that at the end of the life of this building
there will be a residual site value. There
was no Civil Evidence Act 1968 notice served in respect of Mr Oster’s report
and it is not of itself evidence and only becomes evidence if adopted by Mr
Whitley.
The best
evidence of the value of a property is usually what someone is prepared to pay
for it. What was paid for this property
was £29,000 at auction on March 13 1992, six years after the date which I have
to consider. Mr Whitley gave his opinion
that the value of the property in its true condition in 1986 was £20,000. His reasoning was not based on any difference
between 1986 and 1992 values, nor did he support his evidence with sales of
comparable property, nor did he put forward any calculation of what could be
made out of an investment in the property.
Mr Whitley relied on his experience as a local estate agent as well as a
surveyor and he suggested that the price of £29,000 paid at auction was
attributable to ‘overzealous bidding’.
How the
auction price in 1992 relates to values in 1986 has not been considered in
evidence. I have evidence that the
market price was at its peak in 1988 and that at that time the plaintiffs
received an offer for £79,000 for the property in good condition. The property market has fallen since then,
but I have no evidence whether the fall is such that a price fetched at auction
in 1992 should be regarded as equivalent to a price which the property might
have been expected to fetch at auction in 1986.
It would not be right to assume that the value in March 1992 was the
same as the value to be expected in mid-1986.
It is possible that that might be the case, but I have no evidence to that
effect.
The
defendants, case was stated by Professor Hollis as follows:
I believe
that the maximum reduction in value that may have occurred would have been
£12,000. I believe that this takes into
account the risk of having to face the possibility of spending about £8,500.
In 1987, and
probably earlier, Hounslow London Borough Council were offering to undertake
remedial work to the houses for £9,000 each.
A letter to that effect was put in evidence. In making their offer, the council stated,
‘Matters such as the subsequent mortgage ability of your home will have to be
ascertained for yourself. The council
cannot give an opinion.’ When
considering a terrace of four, putting one house right would not eliminate
fears of defects unless the other houses in the short terrace also were put
right: but that was done and there was every reason to believe in August 1986
that Hounslow London Borough Council as a caring landlord would put their own
houses in order. However, the work would
involve the provision of angle irons, which would draw to the attention of any
purchaser the fact that remedial work had been done. No remedial work has in fact been done to
this property and it seems likely that the property will be supported by the
strengthened properties on each side, but there will always remain a question
mark about its condition.
I do not think
it right to assess the reduction in value by reference to remedial work which
has not been carried out and which, even if carried out, would not remove the
question mark which stands over this property.
The only other evidence which I have as to value is the evidence of Mr
Whitley. That evidence was not strongly
tested in cross-examination, perhaps because it was considered to be reliable.
I therefore
assess the damages attributable to reduction in value at £36,000, that is the
difference between £56,000 and Mr Whitley’s valuation of £20,000.
The amount
claimed for legal and other costs was not disputed and I award those in the sum
claimed, £1,364.65.
The plaintiffs
also claim damages for worry, distress and inconvenience. I bear in mind what was said by the Court of
Appeal in Watts v Morrow.
As in that case, any damages awarded are totally unrelated to the strain
and stress of litigation. The question
is, what damage in terms of inconvenience has been caused by the negligence of
the defendants? I have already described
what has happened to the plaintiffs by way of changes to their circumstances. It is true that if the first plaintiff had
not become less efficient at work as a result of worry, he would have been able
to keep up his payments to the building society and he would have been able to
stay in his home. In that event, the
plaintiffs would not have suffered so much distress and inconvenience even
though their intention had been to move.
But they would still have had the knowledge that they were trapped in a
house which could not be sold for a sum sufficient to pay off the purchase
price. However, worry leading to
unemployment and repossession of property is such a common result of this type
of circumstance that one has to say that what has happened to the plaintiffs
should have been reasonably foreseeable to Mr McDade and is a natural
consequence of his negligent survey.
Taking a very modest view of the damage suffered by the plaintiffs,
which is still continuing, I assess their damages for worry, distress and
physical inconvenience at £6,000.
I therefore
award to the plaintiffs by way of damages the sums of £36,000, £1,364.65 and
£6,000 totalling £43,364.65. I invite
argument on the questions of interest and costs.
For
further cases on this subject see p 159
