Negligence — Water damage to one flat owing to faulty pipework in another flat — Whether landlord of damaged flat able to recover damages for period while flat tenanted — Whether damages limited to injury to reversion — Appeal dismissed
The respondent owned a leasehold interest in a building containing several flats. It let flat 1 to tenants on a short-term basis, while the appellant held a long lease of flat 3 above. Over a two-year period, water leaked through the ceiling into flat 1 owing to faulty pipework under the shower in flat 3. The respondent first complained to the appellant about the leak early on in that period, after being alerted of it by its tenant. The tenant consequently made deductions from the rent, which the respondent’s solicitor advised were reasonable. The tenant subsequently moved out.
The respondent brought proceedings against the appellant for breach of covenant and negligence. The judge found the appellant liable on both grounds. He held that section 18 of the Landlord and Tenant Act 1927, which the appellant argued should apply to limit damages to any injury to the respondent’s reversion, was inapplicable where the respondent was suing as the tenant of flat 1, not as the landlord of flat 3. His damages award included a sum in respect of the rent deductions for the period during which flat 1 had been tenanted.
On appeal, the appellant contended that: (i) he had been given insufficient notice of the leaks to engage the common law duty of care, since the mere knowledge that water was leaking into flat 1 made it reasonable to conclude that the cause was other than faulty pipes for which he would be responsible; and (ii) the respondent should not have been awarded damages for the period during which the flat had been tenanted, since negligence was a tort only against the person in occupation, unless there was injury to the reversion. On the latter point, he submitted that the rent deductions were not recoverable because the sublease did not provide for the tenant to withhold rent on the ground of the flat’s condition.
Held: The appeal was dismissed.
1. The appellant had been given sufficient notice of the leaks in order to engage his duty of care. It had been sufficient to inform him that water was coming in through the ceiling, after which he should have established the cause, and, if he were responsible, remedy it.
2. Decisive authority indicated that the respondent was entitled to recover for the period when the flat was tenanted: Ehmler v Hall [1993] 1 EGLR 137; [1993] 02 EG 115 applied. It made no difference that the sublease did not contain a provision relating to the withholding of rent, given the advice of the respondent’s solicitor that the deductions made by the tenant had been reasonable. The judge’s damages award would be upheld, subject to a small deduction in respect of a loss adjuster’s fee claimed by the respondent, which was too remote.
Adrian Davies (instructed by Neilson & Co) appeared for the appellant; Norman Joss (instructed by Ingram Winter Green) appeared for the respondent.
Sally Dobson, barrister
