Landlord and tenant — Dampness and condensation in council flat — Tenant’s claim for damages — Whether council under liability — Whether Cavalier v Pope still good law —
Appeal by tenant from county court decision dismissing claim
tenant of a council flat built in the late 1940s or 1950s, with solid walls and
steel window frames — It was properly built in accordance with the standards of
the time and was not in disrepair — However, changes in people’s habits, such
as the demand for greater heating which could be switched on and off, and the
use of washing machines and tumble dryers putting moisture into the air,
combined with the absence of permanent ventilation and the solid walls, caused
condensation — Such condensation led to discoloration of fabrics and
decorations and also, it was said, caused colds and minor ailments to the
appellant and her children — The appellant claimed damages against her council
landlords
court the recorder assessed damages at £900 (£100 being special damages for
deterioration of decorations and £800 being general damages for ailments and
inconvenience) but held that there was no liability on the defendant council by
reason of the rule in Cavalier v Pope — Section 11 of the Landlord and Tenant Act 1985 was of no
help to the tenant, as there was no disrepair and an action in nuisance did not
lie
of Appeal the appellant’s case was put on the ground of negligence, but, as the
discussion in Rimmer v Liverpool City Council showed, developments in the law of
negligence had left the authority of Cavalier v Pope still standing in the
case of a ‘bare landlord’, ie a landlord who was not the negligent builder of
the premises and who had let them by an unfurnished letting — The court could
not raise a new duty at common law in a field where Parliament had prescribed
duties where it thought appropriate — The Defective Premises Act 1972 was
geared to the landlord’s repairing covenant — Section 11 of the Landlord and
Tenant Act 1985 was based on an implied covenant to repair — Section 8 of that
Act, which imposed a condition that a house should be fit for human habitation,
was confined to very small rent limits which Parliament had conspicuously
refrained from updating — It might be suggested that the implied condition
which the common law attached to furnished lettings ought to apply to a case
such as the present where a tenant might be expected to move immediately into
unfurnished accommodation provided by the local authority — That, however, was
a matter for Parliament — Appeal dismissed
The following
cases are referred to in this report.
Anns v Merton London Borough Council [1978] AC 728; [1977] 2 WLR
1024; [1977] 2 All ER 492; [1977] EGD 604; (1977) 243 EG 523 & 591, HL,
[1977] 2 EGLR 94
Cavalier v Pope [1906] AC 428
Donoghue v Stevenson [1932] AC 562, HL
Greene v Chelsea Borough Council [1954] 2 QB 127; [1954] 3 WLR 12;
[1954] 2 All ER 318; [1954] EGD 215; (1954) 163 EG 486, CA
Lane v Cox [1897] 1 QB 415; (1897) 66 LJQB 193; 76 LT 135; 45 WR
261
Quick v Taff-Ely Borough Council [1986] QB 809; [1985] 3 WLR 981;
[1985] 3 All ER 321; (1985) 84 LGR 498; [1985] 2 EGLR 50; 276 EG 452, CA
Rimmer v Liverpool City Council [1985] QB 1; [1984] 2 WLR 426;
[1984] 1 All ER 930; (1983) 82 LGR 424; [1984] EGD 827; 269 EG 319, [1984] 1
EGLR 23, CA
Robbins v Jones (1863) 15 CB (NS) 221; 33 LJCP 1; 9 LT 523
Smith v Marrable (1843) 11 M&W 5; 12 LJ Ex 223; 7 Jur 70; 63
RR 493
Wilson v Finch-Hatton (1877) 2 ExD 336; 46 LJQB 489; 36 LT 473; 25
WR 537
This was an
appeal by the plaintiff tenant, Mrs Sandra McNerny, from the decision of Mr
Assistant Recorder Wakefield, at Wandsworth County Court, dismissing her claim
for damages on account of the condition of her council flat in a five-storey
block at Muller Road, London SW4. The respondents were her landlords, the
London Borough of Lambeth.
Michael
Kershaw QC and Richard Davison (instructed by Williams & Co) appeared on
behalf of the appellant; Thayne Forbes QC and John Evan Jones (instructed by R
G Broomfield, chief solicitor, London Borough of Lambeth) represented the
respondents.
Giving
judgment, DILLON LJ said: The plaintiff in the action, Mrs McNerny, appeals
against the dismissal by Mr Assistant Recorder Wakefield in the Wandsworth County
Court on April 16 1988 of her claim for damages against her landlords, the
London Borough of Lambeth.
The plaintiff
became a tenant of a council flat on the third floor in a five-storey block at
Muller Road, London SW4, in November 1982. The block was constructed in the
late 1940s or 1950s. It had solid walls and steel window frames. It was
properly built to the standards of the time when it was built. It had been
recently redecorated before the plaintiff moved in and appeared to be in good
condition. But about a year later the plaintiff began to have trouble with
condensation. There had not been any relevant deterioration of the premises,
but a change in people’s way of living in flats and houses. Possibly with
greater prosperity, they came to require greater warmth. Thus, they use more
heating in rooms, boosted for relatively short periods, leaving it off at other
times because they cannot afford to keep it on continually, and they have
washing machines and tumble dryers, as the plaintiff did, quite naturally and
properly. But these machines put moisture in the air. As explained in the
surveyor’s reports that were put in evidence, the difficulty with this flat, as
with so many built in the late 1940s, 1950s and 1960s, is that there was no
permanent ventilation, and the metal window frames with windows that were not
double-glazed, and solid walls with no insulating material, operated in effect
as cold radiators causing condensation of the moisture in the air, and the
condensation in turn led to discoloration of the decorations, fungus growth,
deterioration of fabrics, and also constant colds and minor ailments for the
plaintiff and her children living in these conditions.
The court does
not have before it all the evidence that was before the judge. I merely summarise.
The remedy no
doubt, as a matter of construction, would be to replace the metal window frames
with wooden or plastic window frames; to double-glaze the windows; to clad the
outside walls with insulation material, and possibly to install more effective
space heating. Obviously for the landlords, who are a local housing authority
and have to cope not with just the one flat but with probably many other
buildings built at about the same time and in the same way, the expense would
be very great indeed.
The judge
assessed damages, if liability were to be established, at £900, being £100
special damages for deterioration of the decoration and £800 general damages
for the colds and ailments and inconvenience and unpleasantness that the
plaintiff had suffered. But he held as a matter of law that there was no
liability on the defendant authority.
The case was
put before the judge under three headings. First, it was said that there was a
breach of the repairing covenant which is to be implied by statute into a
tenancy of premises such as this. The liability was prescribed by section 32 of
the Housing Act 1961. It is now provided by section 11 of the Landlord and
Tenant Act 1985:
In a lease to
which this section applies
— and this is
such a lease —
. . . there is
implied a covenant by the lessor — (a) to keep in repair the structure
and exterior of the dwelling-house
— and various
other installations.
But the judge
held on the facts and on the interpretation of that repairing obligation which
was adopted by this court in the case of Quick v Taff-Ely Borough
Council [1985] 3 All ER 321* that there was no disrepair. That claim
therefore failed and it has not been pursued in this court. The facts of this
case are very similar to the facts in the Quick v Taff-Ely case,
and I would not be at all surprised to find that there is the same problem in
the areas of very many other housing authorities throughout the country.
*Editor’s
note: Reported also at [1985] 2 EGLR 50.
As an
alternative, the claim was also put as a claim for damages in nuisance. That
was rejected by the judge and has not been pursued in this court.
The third
alternative was that the claim was put as a claim for damages in negligence and
that is the claim which alone has been pursued in this court. It is said that
the council were in breach of a duty to take reasonable care in all the
circumstances. One asks at this point: reasonable care in what respects or to
what end, because it is necessary to define what duty is said to be in
question. I had difficulty myself at times in following Mr Kershaw’s
formulation of the duty and unless it has been formulated it is hard to
consider whether it exists in law. It must go wider than the duty under the
repairing covenant if it is to avail the plaintiff in the conditions of this
case,
disrepair.
In one of the
cases to which we were referred, Rimmer v Liverpool City Council
[1985] QB 1, the circuit judge in the county court had formulated the duty of
care in these terms (I quote from p 7 of the report, letters F to G):
I have
reached the conclusion that the law today is that a landlord must apply his
mind before letting to a tenant to the question of whether the premises may be
considered to be reasonably safe. He must have in contemplation the reasonable
use of the premises by the proposed tenant, his family and his visitors. In
contract he may make exclusion clauses. That does not apply here. In my
judgment, therefore, there was and is a legal duty on a landlord to take
reasonable steps to ensure that the premises are reasonably safe.
The danger in
that case was that there were certain glass panels which were not strong enough
and were a danger if someone fell against them. In the present case safety is
not quite what is in issue and the duty would be adapted as a duty to take
reasonable steps to ensure that the premises are habitable. I will come back to
the duty as formulated in the Rimmer case later.
The judge
decided that there was no such duty in law and he held that he was bound to
reach that conclusion by the decision of the House of Lords in the case of Cavalier
v Pope [1906] AC 428. The principle upheld in that case is summarised
quite shortly in a paragraph in the speech of Lord Macnaghten at p 430, where
he said:
The facts are
not in dispute. The law laid down by the Court of Common Pleas in the passage
quoted by the Master of the Rolls from the judgment of Erle CJ in Robbins
v Jones is beyond question: ‘A landlord who lets a house in a dangerous
state is not liable to the tenant’s customers or guests for accidents happening
during the term: for, fraud apart, there is no law against letting a
tumble-down house; and the tenant’s remedy is upon his contract, if any.’
Robbins v Jones was decided in 1863. It is reported in 15 CB (NS)
221. It was preceded by a considerable number of other decisions in the Common
Law Courts to the same effect, and between the decision in Robbins v Jones
and the decision in Cavalier v Pope the law as stated by Erle CJ
in Robbins v Jones had been endorsed by this court in Lane
v Cox [1897] 1 QB 415.
Since the
development of the law of negligence in Donoghue v Stevenson
[1932] AC 562 there has been considerable criticism of Cavalier v Pope,
and suggestions have been made that the law stated in Cavalier v Pope
and the preceding authorities has been overtaken by the development of the law
of negligence in Donoghue v Stevenson and the cases on negligence
which have followed from that. It is interesting that when Cavalier v Pope
was before the Court of Appeal Mathew LJ dissented. His dissenting judgment is
founded on various authorities which find their place in Lord Atkin’s speech in
Donoghue v Stevenson, and Mathew LJ felt able, because there had
been an express representation by the landlord in Cavalier v Pope,
to hold that that representation had been made fraudulently and that
consequently the tenant’s wife had an action on the representation. Where there
is an express representation it is easy to take that as setting the scope or
extent of any duty of care if a duty of care is held to exist. Where there is
no express representation it is very much a question of the policy of the law
from time to time to decide what scope of duty, if any, is to be implied.
There are
certain qualifications to Cavalier v Pope which are now well
established. One is that it does not apply to a furnished letting. I will come
back to that later. The second is that it does not apply where the landlord was
the builder of the dwelling-house and the building was built negligently. The
fact that the builder was also the owner and landlord of the site does not
cancel his negligence qua builder. That emerges from the well-known
decision of the House of Lords in Anns v Merton London Borough
Council [1978] AC 728, and it is particularly decided in Rimmer v Liverpool
City Council, which I have mentioned.
In the present
case, however, even if the landlords’ predecessor as local authority and
housing authority were responsible for the building of the block of flats in
Muller Road in the first place, there is no evidence of negligence when they
were built or that the building was not entirely in accordance with the
technology and standards of the times. That leaves, therefore, the case of what
has been called the ‘bare landlord’ — the landlord who was not the negligent
builder of the premises and who has let them by an unfurnished letting.
The judge in
the court below treated the present case as a case of a ‘bare landlord’ and it
is conceded in argument by Mr Kershaw for the plaintiff that this is indeed
such a case. But in such a case, so far as this court is concerned, the
decision in Cavalier v Pope stands and is binding. That was
pointed out, and indeed decided, by this court in Rimmer v Liverpool
City Council. I can refer to two passages in the judgment of Stephenson LJ,
which was the judgment of the court. First, at p 7H, after setting out the
circuit judge’s formulation of the duty, Stephenson LJ said:
We have come
to the conclusion that it was not open to the judge, and is not open to any
court below the highest, to say that that is the law, however desirable that it
should be.
Stephenson LJ
then, at the foot of p 14 letters G to H, said about Cavalier v Pope:
We reach our
decision without treating Cavalier v Pope . . . as overruled, for
Pope did not design or construct the floor through which Mrs Cavalier fell. He
was not a builder-owner, but what may be called a bare landlord, or a landowner
as such: Gallagher v N McDowell Ltd [1961] NI 26, 38 per
Lord MacDermott CJ. Counsel for Mr and Mrs Anns in Anns v Merton
London Borough Council . . . submitted to the House that it was not necessary
to overrule Cavalier v Pope; and their Lordships refrained from
doing so, and left for another day the immunity of a bare landlord, too closely
confined to avail the council but too deeply entrenched in our law for any
court below the highest to disturb or destroy it.
That is the
short answer to this appeal.
Mr Kershaw
says that the court should anyhow exclude local authority landlords from the
doctrine of Cavalier v Pope as applicable to a bare landlord. For
my part, I cannot see why or on what basis such a distinction is to be made or
what power this court has to make it. If local authorities are to be excluded,
what about housing associations, or charitable trusts, for housing the poor and
needy?
There is an
alternative approach to this appeal which, in my judgment, leads to the same
result. Even if the court is not bound by Cavalier v Pope, should
the court interfere to raise a new duty at common law not heretofore recognised
or is that a matter for Parliament? This
is an area where Parliament has intervened to prescribe the duties for
landlords that Parliament thinks appropriate. It is a field of importance in
relation to social policy and also affects the finances of local authorities
very considerably. It is concerned generally with housing those less
advantaged.
The repairing
covenant imposed by Parliament I have already referred to. It is backed by the
Defective Premises Act 1972. Section 4(1) of that Act provides:
Where
premises are let under a tenancy which puts on the landlord an obligation to the
tenant for the maintenance or repair of the premises, the landlord owes to all
persons who might reasonably be expected to be affected by defects in the state
of the premises a duty to take such care as is reasonable in all the
circumstances to see that they are reasonably safe from personal injury or from
damage to their property caused by a relevant defect.
Then
subsection (2) provides:
The . . .
duty is owed if the landlord knows (whether as the result of being notified by
the tenant or otherwise) or if he ought in all the circumstances to have known
of the relevant defect.
Subsection (3)
defines the relevant defect as meaning:
a defect in
the state of the premises existing at or after the material time
— which, for
practical purposes, is when the tenancy commences —
and arising
from, or continuing because of, an act or omission by the landlord which
constitutes, or would, if he had had notice of the defect, have constituted, a
failure by him to carry out his obligation to the tenant for the maintenance or
repair of the premises.
Then there are
provisions which for present purposes are not material as to the landlord’s
express or implied rights to enter and inspect the premises and for carrying
out maintenance or repair. But the important point is that that statutory
protection for those in occupation of defective premises is geared to the
landlord’s obligation to repair the premises. It goes no wider than the repair
covenant.
Then there are
the provisions which are now to be found in the Landlord and Tenant Act 1985
but were previously in section 6 of the Housing Act 1957, and before that in
the Housing Act 1936, which are concerned that certain houses which are let
should be fit for habitation. Section 8 of the 1985 Act provides that:
In a contract
to which this section applies for the letting of a house for human habitation
there is implied, notwithstanding any stipulation to the contrary —
(a) a condition that the house is fit for human
habitation at the commencement of the tenancy, and
(b) an undertaking that the house will be kept by
the landlord fit for human habitation during the tenancy.
That, as it
seems to me, is the sort of obligation which the plaintiff in
Subsection (3) of section 8 provides, however, that:
This section
applies to a contract if —
(a) the rent does not exceed the figure
applicable in accordance with subsection (4).
Subsection (4)
provides for rent limits in a table which is concerned with the date of making
the contract. There are certain limits if the contract were first made before
July 31 1923; there are very similar limits if it were made on or after July 31
1923 and before July 6 1957; there are higher limits if the contract were made
after July 6 1957, but the limits even so — £80 rent limit in London, £52
elsewhere — are far below the normal rents for a council house or flat; for
instance, the flat of the plaintiff in the present case or the house of the
plaintiff in Quick v Taff-Ely Borough Council, and Parliament has
conspicuously refrained from updating the limits in the 1985 Housing and
Landlord and Tenant Acts. In these circumstances, in my judgment, this is an
area where it is for Parliament to extend the duties imposed on landlords of
council flats or houses or other low-standard accommodation. It is not for the
courts.
We were
referred in the course of argument to the decision of this court in Greene
v Chelsea Borough Council [1954] 2 QB 127. That was a case where
premises had been requisitioned by the Chelsea Borough Council for housing
purposes and a flat had been allocated to the plaintiff’s husband and family;
as they were requisitioned premises no tenancy was granted to the husband or
family but merely a licence. A bulge developed in the kitchen ceiling. The
attention of the council was drawn to the bulge, but they failed to do anything
about it and advised that there was no danger. In due course the ceiling came
down and the plaintiff was injured. She recovered damages under the heading of
negligence. The council argued that Cavalier v Pope exempted them
from liability, but the court distinguished Cavalier v Pope
because there was no letting of premises by landlord to tenant but merely a
licence. What is more important, however, for present purposes is the nature of
the duty which the court upheld. It was put by Singleton LJ at the foot of p
135 of the report as a duty to take reasonable care of the premises which
persons are allowed by the requisitioning authority to use, but in the context
that means no more than reasonable care over repairing the premises. It imposed
no wider obligation than the repair obligation which is, in the context of the
present case, the obligation imposed by Parliament. I see no basis on which it
is possible to deduce from Greene v Chelsea Borough Council a
wider obligation than the repairing obligation.
We were
referred also to the cases in which it has been held that different principles
apply to furnished lettings. In particular we were referred to the case of Wilson
v Finch Hatton (1877) 2 Ex D 336 where it was held that in an agreement
to let a furnished house there is an implied condition that the house shall be
fit for occupation at the time at which the tenancy is to begin, and if the
condition were not fulfilled the lessee was entitled thereupon to rescind the
contract. In reaching that conclusion the court followed and approved an
earlier decision in Smith v Marrable (1843) 11 M&W 5. The
view expressed by Kelly CB at p 340 was:
The question
we have to determine is whether, on an agreement of this nature, which is an
agreement for the letting and hiring of a house, in what is considered a
fashionable district, at a high rent for three months at the height of the
season, if the house prove not merely not habitable and not reasonably fit for
occupation, but in some respects so unsuitable for the accommodation of those
who intend to occupy it, that they could not reside in it, even for one night,
without danger to their health, whether, . . . in such a case the hirer . . .
is at liberty to consider the agreement at an end, to throw the house up
altogether, and to resist all demands for rent.
He concluded
that there was an implied condition that the house was reasonably fit for
habitation so that the tenant could safely enter into his tenancy on the day on
which the tenancy begins.
I can see
force in the argument that if a furnished house must be fit for the purposes
for which it is let, so a house or flat let unfurnished, albeit newly decorated,
to a tenant who is expected to move in immediately, and may be moving in the
case of local authority housing from really bad housing conditions, should be
fit for the purposes for which it is let. In other words, that section 8 of the
Landlord and Tenant Act 1985 should apply. This is reinforced by the fact that
ventilation, freedom from damp, and matters of that sort are, under section 10
of the 1985 Act, factors to be considered in considering whether a house is
unfit for human habitation. But in my judgment it is for Parliament and not for
the courts to introduce such a development into the law.
Accordingly,
the learned deputy judge was, in my judgment, correct in the conclusion which
he reached, and I would dismiss this appeal.
Agreeing,
TAYLOR LJ said: The rule in Cavalier v Pope has been applied now
for over 80 years. It has survived the extensive development of the law of
negligence. Strictures have been passed upon it. It has been pared down and
confined. But in its residual form, accurately stated by the learned deputy
judge in the present case, it has not been overruled.
To succeed in
the present case Mr Kershaw accepted that he had either to show Cavalier
v Pope has been misunderstood for all those years or to have it
overruled. The speeches of the House of Lords in 1906 were of commendable
brevity and clarity. I am not persuaded that the rule they stated has been
misunderstood. It is of such simplicity as to be among the first to be grasped
and the least forgotten by generations of law students. It has been considered
in numerous cases by many learned judges. I do not believe that the penny has
failed to drop until the argument addressed to us on behalf of the appellant.
As to Mr
Kershaw’s other alternative, this court has of course no power to overrule the
decision of the House of Lords in Cavalier v Pope. It may well be
that that decision survives and sticks out as an anomaly when other exceptions
to the principle in Donoghue v Stevenson have been washed away
all around it. However, its departure could well cause problems and
uncertainties, as Mr Forbes has pointed out. In these circumstances it is, in
my view, clearly desirable that a reform of the rule, if any, should be
considered and if necessary undertaken only by Parliament.
SIR JOHN MEGAW
agreed with both judgments and did not add anything.
The appeal
was dismissed with costs, not to be enforced without leave of the court; legal
aid taxation of appellant’s costs was ordered; application for leave to appeal
to the House of Lords was refused.