Section 11 of Landlord and Tenant Act 1985 – Council tenant persistently complaining of damp – Council contending that various aspects of causation neither pleaded nor established – Trial judge holding that causation inferred from council’s failure to respond to complaints – Council appealing against £7,500 damages award – Appeal allowed
In October 1992 the appellant council (the landlords) granted to the respondent (the tenant) a tenancy of a four-bedroom maisonette on the Gloucester Grove Estate in Peckham. The tenant became aware of a pervading atmosphere of damp, which became progressively worse. Mould appeared in various places and the main bedroom ceased to be usable as such. In 1994 the tenant reported the matter to the landlords after water began to leak through the kitchen ceiling. Despite repeated complaints by the tenant, no remedial steps were taken before 1999. The tenant took county court proceedings alleging that the landlords had, over a period of five years, been in breach of their covenant, implied by section 11 of the Landlord and Tenant Act 1985, to keep in repair the structure and exterior and installations for sanitation and for the supply of water. The claim particularised various items of damage alleged to have been caused by damp. More detailed particulars were subsequently given in an expert report, which concluded with an opinion that the landlords were in breach of the covenant relied upon by reason of their failure “to keep in repair the property including inter alia entrance doors; fire protection; water leaks… WC pan; flushpipe; corroded water tank.” It was established at the trial that a significant cause of the damp was the tenant’s practice of using a cupboard that was designed for storing dry goods for the purpose of drying (recently washed) clothes.
Awarding the tenant damages of £7,500 in respect of discomfort, the judge held that the landlords were responsible for the misuse of the cupboard because they had failed to advise the tenant against such use. The judge further rejected the landlords’ contention that the tenant had failed to plead and establish that the damage was attributable to physical damage to the structure or exterior of the property, on the ground that the landlords could not raise a causation issue when they had effectively done nothing over a period of five years in response to the tenant’s complaints. The landlords appealed.
Held: The appeal was allowed.
1. There was no pleaded duty to advise on the proper use of the cupboard, and, no such duty upon the landlords could arise under the covenant.
2. The alleged failure of the council to investigate the complaints had no bearing on the issue of causation. No such duty was pleaded, nor could such a duty arise unless the damp was, in fact, caused by relevant physical damage. Such a lacuna in the particulars of claim could not be filled by an expert report: Quick v Taff-Ely Borough Council [1985] 2 EGLR 50 applied.
Michael Buckpitt (instructed by the solicitor to Southwark London Borough Council) appared for the appellants; Sylvester Carrott (instructed by Sam Moseley & Co) appeared for the respondent.
Alan Cooklin, barrister
