Property owned by local authority -Statutory nuisance – Condition of tenant’s flat prejudicial to health – Local authority pleading guilty to offence under Public Health Act 1936 – Local authority abating nuisance – Tenant’s children claiming damages from local authority for damage to health – Whether commission of criminal offence under Public Health Act giving rise to civil liability – Public Health Act 1936 Pt III – Judge awarding damages to plaintiffs – Appeal of local authority allowed.
In 1983 the parents of the two plaintiffs, who were born in1975 and 1978 respectively, were granted a tenancy of a flat in a property owned by the defendants. In 1988 a report made by an environmental health officer recorded that the premises were severely affected with condensation and associated mould growth, that their condition was prejudicial to health, and therefore constituted a statutory nuisance as defined by section 92(1)(a) of the Public Health Act 1936. On June 12 1989 the defendants pleaded guilty in the magistrates’ court to an offence under that provision and under section 99 of the Act and were fined with an order for compensation payable to the plaintiffs’ father. An order was made for the nuisance to be abated and the necessary works were completed in December 1989.
In July 1992 the plaintiffs, suing by their father, brought an action in the county court claiming damages for the ill-health allegedly suffered as a result of the condition of the premises, in particular through the aggravation of the asthma from which they both suffered. The judge decided as a preliminary issue that the criminal offence for which they had been convicted rendered the defendants liable for any loss or damage thereby suffered by the plaintiffs. At trial on the issue of causation the judge awarded damages to the plaintiffs. The defendants appealed contending that the commission of a criminal offence under Part III of the Public Health Act 1936 did not give rise to a civil liability. The plaintiffs submitted that Parliament must have intended Part III to create a civil remedy otherwise they would be without any remedy at all for damage suffered.
Held The appeal was allowed.
1. Section 94(2) of the Act (the power of the court to make a nuisance order if an abatement notice has been disregarded), by making it a criminal offence to make default in complying with the notice, did not render the person guilty of the offence liable in a civil action for damages at the suit of any person who thereby suffered loss or damage. Part III was a self-contained code dealing with the abatement of statutory nuisances and there was no ground for construing it so as to incorporate the creation of a civil cause of action.
2. Part III of the Act, now replaced by the Environmental Protection Act 1990, was of wide and frequent application as between local authorities as regulatory bodies on the one hand and those who caused, suffered or permitted statutory nuisances to occur on the other, whereas the circumstances of the present case, where it was a local authority as landlords who were responsible for the nuisance, was comparatively rare. Part III of the Act had to be construed as a whole and its effect was to be judged at the date of its enactment, when the landlord’s implied covenant to keep the flat fit for human habitation would have applied to the plaintiffs’ parents’ premises: see Summers v Salford Corporation [1943] AC 283. However the implied covenant and any remedy to be found in section 4(1) of the Defective Premises Act 1972 had become dead letters and section 11 of the Housing Act 1985 was to no avail in the circumstances of the present case. Until Parliament was ready to revive the implied fit for human habitation covenant, the plaintiffs and others in their position had no right to claim compensation against the local authority landlords for the injury suffered.
Richard Drabble QC and Ian Lewis (instructed by the solicitor to Hackney London Borough Council) appeared for the appellants; Lorna Tagliavini ( Moss & Co) appeared for the respondents.