England and Wales Court of Appeal (Civil Division) Decisions

Court of Appeal

		29 November 1988

1. 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.
2. 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.
3. The court does not have before it all the evidence that was before the judge. I merely summarise.
4. 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.
5. 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.
6. 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.

7. 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.
8. 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.
9. 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, where the repairing covenant does not apply because there is no relevant disrepair.
10. 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.

11. 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.'

12. 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.
13. 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.
14. 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.
15. 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.
16. 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.

17. 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?
18. 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.
19. 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.

20. 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.

21. 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.
22. 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 the present case would wish to impose on the council as a matter of common law. 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).

23. 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.
24. 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.
25. 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.

26. 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.
27. 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.
28. Accordingly, the learned deputy judge was, in my judgment, correct in the conclusion which he reached, and I would dismiss this appeal.
29. 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.
30. 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.
31. 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.
32. 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.

The electronic text of this judgment was provided by Estates Gazette, whose assistance is gratefully acknowledged.