England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE CCRTF 95/1682/E

Royal Courts of Justice

Strand, London WC2

Tuesday, 19th November 1996

B e f o r e :

LORD JUSTICE NOURSE

LORD JUSTICE SAVILLE

LORD JUSTICE BROOKE

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YASIN ISSA

(Suing by his Next Friend and Father Ali Ahmed Issa)

and

IMRAN ISSA

(Suing by his Next Friend and Father Ali Ahmed Issa)

Plaintiffs/Respondents

-v-

THE MAYOR AND BURGESSES OF THE

LONDON BOROUGH OF HACKNEY

Defendants/Appellants

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MR. R. DRABBLE and MR. I. LEWIS (instructed by the Director of Law, Administration and Property, London Borough of Hackney) appeared on behalf of the Appellant Defendants.

MISS L. TAGLIAVINI (instructed by Messrs. Moss & Co., London E5) appeared on behalf of the Respondent Plaintiffs.

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J U D G M E N T

(As Approved by the Court)

Crown Copyright

Tuesday, 29th November 1996

LORD JUSTICE NOURSE: Shortly stated, the question on this appeal is whether section 94(2) of the Public Health Act 1936 (Power of court to make nuisance order if abatement notice disregarded), by making it a criminal offence to make default in complying with the notice, also renders the person guilty of the offence liable in a civil action for damages at the suit of any person who thereby suffers loss or damage.

The plaintiffs, Yasin and Imran Issa, were born in 1975 and 1978 respectively. They are two of the four sons of Mr. and Mrs. Ali Ahmed Issa. Until 1983 the family lived in Lancashire. In November of that year they moved to London and lived at various addresses until 7th April 1985, when Mr. and Mrs. Issa were granted a joint tenancy of 21 Malmsmead House, Kingsmead Estate, London E9, a property owned by the defendants, the London Borough of Hackney. At that time the plaintiffs were aged nine and seven respectively.

On 25th October 1988 Mr. Bill Page, an environmental health consultant, made a report based on a visit to 21 Malmsmead House some two and a half weeks earlier, in which he recorded that the premises were severely affected with condensation and associated mould growth and concluded that their condition was such that he was satisfied that they were prejudicial to health and therefore a statutory nuisance as defined by section 92(1)(a) of the 1936 Act. On 12th June 1989 the defendants pleaded guilty at Wells Street Magistrates' Court to an offence under that provision and section 99 of the Act. They were fined £500, with £1,400 compensation and £2,023.80 costs being awarded to Mr. Issa. An order was made for the nuisance to be abated within 56 days, the necessary works being completed in December 1989.

In July 1992 the plaintiffs, suing by Mr. Issa as next friend, brought separate actions against the defendants in the Shoreditch County Court which were later transferred to the Central London County Court, where they were tried together by Mr. Assistant Recorder Crawford in August 1995. The plaintiffs claimed damages for 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. On 15th August the assistant recorder 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. He then proceeded with the trial. On 17th August, having decided the issue of causation in favour of the plaintiffs, he awarded the first plaintiff, Yasin, damages and interest amounting to £5,851.50 and the second plaintiff, Imran, damages and interest amounting to £4,494.50.

The assistant recorder refused the defendants leave to appeal to this court. However, leave was granted on consideration of the documents by Lord Justice Beldam as the single judge. Three issues were raised by the notice of appeal: first, the question of law identified at the beginning of this judgment; second, the question whether, if a civil liability arose, there was sufficient evidence of causation to establish liability; third, the question whether the period for which the defendants were liable (if at all) to the plaintiffs terminated with the abatement of the statutory nuisance in December 1989. In opening the appeal yesterday, and for reasons applicable to this case but not necessarily to any other, Mr. Drabble QC, for the defendants, abandoned their case on the second and third issues. Argument then proceeded on the question of law.

In dealing with that question it is important to emphasise at the outset that Part III of the Public Health Act 1936, now replaced by Part III of the Environmental Protection Act 1990, is of wide and frequent application as between local authorities as regulatory bodies on the one hand and those who cause, suffer or permit statutory nuisances to occur on the other, whereas the circumstances of the present case, where it is a local authority as landlords who are responsible for the nuisance, must be comparatively rare. But if the Act gives the plaintiffs a civil remedy against the defendants, it must equally give one to all those who suffer loss or damage as a result of statutory nuisances caused, suffered or permitted in the far more numerous cases referred to, most of whom, however, will already have a cause of action at common law.

As an introduction to his consideration of Part III of the 1936 Act, Mr. Drabble cited Halsburys Laws of England, Fourth Edition, Vol. 45, para. 1285, headed "Effect of provision of statutory remedy for breach of duty":

"There is a general rule that where a new obligation is created by statute which at the same time provides a special means of enforcing it, that performance cannot be enforced in any other manner. However this rule is subject to the ordinary rules as to the construction of statutes. Where the only manner of enforcing performance for which the statute provides is by means of criminal proceedings, there are two classes of exception to this general rule. The first is where the obligation was imposed for the benefit or protection of a particular class of individuals. The second is where the statute creates a public right and a particular member of the public suffers particular direct and substantial damage other and different from that which was common to the rest of the public."

The authorities cited in support of the first sentence are Doe d. Bishop of Rochester v. Bridges (1831) 1 B & Ad 847 at p.859 per Lord Tenterden CJKB and Cutler v. Wandsworth Stadium Ltd. [1949] AC 398. The principal authority cited in support of the third, fourth and fifth sentences is the speech of Lord Diplock in Lonrho Ltd. v. Shell Petroleum Co. Ltd. (No. 2) [1982] AC 173 at pp.185-186.

Part III of the Act is headed "Nuisances and Offensive Trades". Under the subheading "General duty of local authority" section 91 provides:

"It shall be the duty of every local authority to cause their district to be inspected from time to time for the detection of matters requiring to be dealt with under the provisions of this Part of this Act as being statutory nuisances within the meaning of the next succeeding section."

Sections 92 to 99 then follow under the subheading "Nuisances which may be dealt with summarily". So far as material, section 92 provides:

"(1) Without prejudice to the exercise by a local authority of any other powers vested in them by or under this Act, the following matters may, subject to the provisions of this Part of this Act, be dealt with summarily, and are in this Part of this Act referred to as ´statutory nuisances', that is to say -

(a) any premises in such a state as to be prejudicial to health or a nuisance."

Section 93 provides:

"Where a local authority are satisfied of the existence of a statutory nuisance, they shall serve a notice (hereafter in this Act referred to as ´an abatement notice') on the person by whose act, default or sufferance the nuisance arises or continues, or, if that person cannot be found, on the owner or occupier of the premises on which the nuisance arises, requiring him to abate the nuisance and to execute such works and take such steps as may be necessary for that purpose: ..."

There are then two provisos, which I need not read.

I now come to section 94. Subsections (1) and (2) provide:

"(1) If the person on whom an abatement notice has been served makes default in complying with any of the requirements of the notice, or if the nuisance, although abated since the service of the notice, is, in the opinion of the local authority, likely to recur on the same premises, the authority shall cause a complaint to be made to a justice of the peace, and the justice shall thereupon issue a summons requiring the person on whom the notice was served to appear before a court of summary jurisdiction.

(2) If on the hearing of the complaint it is proved that the alleged nuisance exists, or that although abated it is likely to recur on the same premises, then, subject to the provisions of subsections (4) and (5) of this section the court shall make an order (hereafter in this Act referred to as ´a nuisance order') for either, or both, of the following purposes -

(a) requiring the defendant to comply with all or any of the requirements of the abatement notice, or otherwise to abate the nuisance, within a time specified in the order, and to execute any works necessary for that purpose;

(b) prohibiting a recurrence of the nuisance, and requiring the defendant, within a time specified in the order, to execute any works necessary to prevent a recurrence;

and may also impose on the defendant a fine not exceeding level 4 on the standard scale.

Where a nuisance proved to exist is such as to render a building, in the opinion of the court, unfit for human habitation, the nuisance order may prohibit the use of the building for that purpose until a court of summary jurisdiction, being satisfied that it has been rendered fit for human habitation, withdraws the prohibition."

I need not read any other subsections of section 94. Section 95 provides, by subsection (1), for a further fine by way of penalty for contravention of a nuisance order and, by subsection (2), for abatement of the nuisance by the local authority where a nuisance order has not been complied with.

Section 99, to which the marginal note is "Power of individual to make complaint as to statutory nuisance", must be read in full:

"Complaint of the existence of a statutory nuisance under this Act may be made to a justice of the peace by any person aggrieved by the nuisance, and thereupon the like proceedings shall be had, with the like incidents and consequences as to the making of orders, penalties for disobedience of orders and otherwise, as in the case of a complaint by the local authority, but any order made in such proceedings may, if the court after giving the local authority an opportunity of being heard thinks fit, direct the authority to abate the nuisance."

It was under that subsection that Mr. and Mrs. Issa brought the defendants before the magistrates' court in this case.

In R. v. Newham East Justices, ex parte Hunt [1976] 1 WLR 420 it was held by the Divisional Court, first, that section 99 enabled an individual to bring proceedings by information in a magistrates' court and thereby invoke against a local authority the penal provisions of section 94 and, secondly, that it was not a necessary preliminary to those proceedings that an abatement notice should be served. In Coventry City Council v. Doyle [1981] 1 WLR 1325 it was held by the Divisional Court that, on the wording of section 94(2), the relevant date for determining whether the alleged nuisance exists is the date of the hearing before the magistrates. Accordingly, if it has by that time been abated, no offence is committed.

Mr. Drabble submits, first, that the question depends on the true construction of Part III of the 1936 Act as a whole; secondly, that it must be construed as at the date of its enactment. So much is accepted by Miss Tagliavini, for the plaintiffs. But that is the extent of the common ground. Mr. Drabble submits that this is a plain case where the general rule stated in Halsbury applies. Assuming that it is one where a new obligation is created by the Act, he says that it is also one where a specified means of enforcement is provided, so that there cannot be enforcement in any other manner.

In elaboration of these submissions Mr. Drabble has pointed to the following features of the material provisions. First, they provide for a wide range of nuisances to be dealt with summarily, a local authority's powers to deal with them being expressed to be without prejudice to the exercise of any other powers vested in them by or under the Act; see section 92(1). Secondly, section 92 does not itself impose any duty to abate a nuisance; in the normal case it is only where an abatement notice has been served under section 93 that the duty arises. Thirdly, in the normal case it is only when there has been default in complying with the notice that an offence is committed under section 94(2). Fourthly, because it can never be known until the hearing before the magistrates whether an offence has in fact been committed, it is highly unlikely that Parliament would have intended that the availability of a civil cause of action, if there was to be one, should depend on such an unpredictable event. Fifthly, the power to impose a fine is only one of several methods of enforcement for which provision is made. Under section 94(2) the magistrates have power to make a nuisance order (to which teeth are given by the further fine under section 95(1)) and such an order may prohibit the use of a building which is unfit for human habitation. Under section 95(2) a local authority may themselves abate a nuisance where a nuisance order has not been complied with.

In summary, Mr. Drabble submits that Part III of the 1936 Act is a self-contained code dealing with the abatement of statutory nuisances, and that there is no ground for construing it so as to incorporate the creation of a civil cause of action. He adds that, since this is not a case where the only method of enforcement provided by the Act is prosecution for the criminal offence of failure to perform the statutory obligation, the principles stated by Lord Diplock in Lonrho Ltd. v. Shell Petroleum Co. Ltd. (No. 2) at pp.185-186 do not come into play.

In my judgment the submissions made by Mr. Drabble are correct. In answering them, Miss Tagliavini has relied primarily on a passage in the judgment of Shaw LJ in McCall v. Abelesz [1976] 1 QB 585 at p.600 where, after agreeing that the formulation of general rules as to when a penal statute may give rise by implication to a civil remedy for the benefit of a person harmed by an offence created by it is a dubious exercise, he said:

"The numerous authorities which have been cited in this regard do, however, suggest that the following conditions must be satisfied before such a remedy will be held to be so conferred: (1) the offence created must consist of a failure to perform a defined duty which the statute imposes on the potential offender; (2) the duty must be imposed for the benefit of a class of persons which includes the person harmed; and (3) the contemplated beneficiaries of the performance of the duty would, unless a correlative remedy is implied by the statute, be without any, or any effective, remedy for the harm they may suffer from the failure to perform that duty, that is to say from the commission of the offence created by the statute."

Miss Tagliavini has relied especially on the third of those conditions. She says, correctly, that, except for the £1,400 compensation awarded to Mr. and Mrs. Issa in the magistrates' court, the plaintiffs have no other effective remedy in this case. In particular, for the reasons stated by Lawton LJ in Quick v. Taff Ely Borough Council [1985] 3 All ER 321 at p.327H, the implied covenant, under what was then section 6 of the Housing Act 1957, that the landlord will keep the premises in a condition fit for human habitation does not apply. Moreover, says Miss Tagliavini, that covenant would have enured only for the benefit of Mr. and Mrs. Issa, as tenants of the premises, and not the plaintiffs themselves.

While I feel the force of Miss Tagliavini's submissions, there are, I think, two decisive answers to them. In the first place, the effect of Part III of the 1936 Act must be judged at the date of its enactment, before the inflationary times with which we have since become familiar, when the landlord's implied covenant would have applied to these premises and to many like them. Secondly, and perhaps more significantly, I repeat that we are not dealing with the normal case. In the normal case where a local authority is proceeding against someone who has caused, suffered or permitted a statutory nuisance to occur, those who suffer loss or damage as a result will already have a cause of action at common law. In the circumstances it is improbable, to say the least, that Parliament intended to create a further or alternative cause of action.

For these reasons I do not think that Miss Tagliavini's reliance on the third of Shaw LJ's conditions enables her to avoid the impact of Mr. Drabble's submissions. Furthermore, she has been unable, in my view, to satisfy the second of those conditions. She was forced to say that the statutory duty here was imposed for the benefit of the class of persons aggrieved by the particular statutory nuisance. That is too nebulous a class either to come within Shaw LJ's second condition or, indeed, within Lord Diplock's first exception to the general rule.

I conclude that the question of law should be answered in the negative. I would therefore allow this appeal, discharge the assistant recorder's awards of damages and interest and dismiss the plaintiffs' actions.

LORD JUSTICE SAVILLE: I agree.

LORD JUSTICE BROOKE: I agree.

It was an important part of Miss Tagliavini's submissions that Parliament must have intended the early sections of Part III of the Public Health Act 1936 to create a civil remedy for her clients because otherwise they would be without any remedy at all for the injury they have suffered and for which the assistant recorder awarded them a total of £10,000 in compensation.

In order to analyse the strength of this submission, it is necessary to put oneself in the draftsman's chair at the time the 1936 Bill was enacted. At that time the plaintiffs' father, as the tenant of the flat, would undoubtedly have had a cause of action against his local authority landlord if his health had suffered as a direct result of the landlord's failure to comply with its statutory obligation to keep the flat fit for human habitation. The history of this statutory implied covenant, which was first included in section 12 of the Housing of the Working Classes Act 1885, is very clearly set out in Part IV of the Law Commission's recent report No. 238 (1996), Landlord and Tenant, Responsibility for State and Condition of Property, in the passage which begins at paragraph 4.7. The 1885 Bill was introduced by the then Prime Minister, the Marquess of Salisbury, in ringing terms in order to complement by statute the common law rule which compelled the lessor of a furnished house to enter into a contract that his house was healthy to inhabit. The new implied statutory obligation was always limited to lettings of premises below a defined annual rental level, but the Law Commission has reminded us of the fact that when the relevant rent limits were doubled in 1909 the President of the Local Government Board observed that as a result, "with the exception of London, nearly all the working classes of the Kingdom will be included". In 1936 the relevant provision was to be found in section 2(1) of the Housing Act 1936, itself a consolidation Act, which re-enacted the implied condition that a house let for human habitation at a rent lower than the prescribed level was at the commencement of the tenancy in all respects reasonably fit for human habitation, and an implied undertaking by the landlord that his house would be kept in that condition during the tenancy. For the right of a tenant to recover damages for injury to health caused by a breach of that covenant, see Summers v. Salford Corporation [1943] AC 283.

When the Public Health Act 1936 was enacted, the present plaintiffs would not have had a right to rely on the breach of the landlord's covenant to their father in order to found a right of action of their own. As the Law Commission observed in 1970 in its report No. 40, Civil Liability of Vendors and Lessors for Defective Premises:

"At common law a landlord was under no liability to the tenant's family or visitors for injury suffered by reason of the condition of the premises. It was considered that the letting transferred to the tenant all rights of control over the premises and third parties must look to the occupier for any remedy at law."

I do not, however, consider it possible that Parliament must be taken to have intended to create a wide-ranging civil remedy simply to assist a small minority of people who did not already have a right of action in respect of the wide-ranging types of nuisance mentioned in section 92 of the Public Health Act.

So far as the remedies available to a tenant's family are concerned, later history shows that the Bill attached to the Law Commission's 1970 report was enacted in substantially the same form as the Defective Premises Act 1972, and section 4(1) of that Act does give members of a tenant's family a clear right of recourse against the landlord if their health has been foreseeably damaged by a breach of the landlord's new statutory duty to take such care as is reasonable in all the circumstances to see that the premises are reasonably safe from the risk of personal injury caused by a relevant defect. Section 4(3), however, restricts the meaning of the words "relevant defect" to defects in the state of the premises arising from or continuing because of a failure by the landlord to carry out his obligation to the tenant for the maintenance or repair of the premises. Successive decisions of this court have shown how this remedy is now a completely dead letter if the deplorable, unhealthy state of the premises, which has rendered them unfit for human habitation, cannot be connected with an express or implied breach of covenant by the landlord.

In the present case the reason why the London Borough of Hackney was fined £500 and ordered to pay £1,400 compensation and over £2,000 costs was because the family's flat was severely affected with condensation and associated mould growth, which spread to the bedrooms. In Quick v. Taff Ely Borough Council [1986] QB 809 Dillon LJ said that because of fungus, mould growth and dampness the tenant's council house was virtually unfit for human habitation in the winter when the condensation was at its worst. In McNerny v. London Borough of Lambeth 21 HLR 188, the same lord justice observed at p.190 that the scale of the dampness which had to be endured in that case led to constant colds and minor ailments being suffered by the plaintiff and her children who had to live in those unhealthy conditions. In Habinteg Housing Association v. Jones 27 HLR 299 a female tenant endured six years of misery caused by cockroaches, which Peter Gibson LJ described as a quite appalling infestation for which she was in no way responsible. In none of these cases has the tenant or her family had any civil remedy for the injuries to their health or to their property which they have had to endure through living in unfit conditions.

The reason for this apparent lacuna in the law was pointed out by this court 11 years ago in Quick's case. Parliament has not increased the relevant rental values relating to the implied covenant that the premises should be fit for human habitation since 1957, so that that implied covenant (which is now still to be found in section 8(1) of the Landlord and Tenant Act 1985) and the consequential value to a tenant's family of section 4(1) of the Defective Premises Act 1972 are both completely dead letters. There remains, of course, in appropriate cases the statutory implied covenant in section 11 of the Landlord and Tenant Act 1985, but this covenant is of no assistance to the tenant or to the tenant's family in the present class of case, which is not concerned with a failure to keep in repair the structure and exterior of the flat or the other items mentioned in that section. Unless and until Parliament is willing to revive, in new tenancies at first, the covenant that premises of this type should be fit for human habitation, as the Law Commission has recommended in the report it published last March, people in the position of the present plaintiffs will remain wholly without remedy in the civil courts against their landlords, however grievously their health may have suffered because they are living in damp, unfit conditions.

There is of course a limited remedy open to them because the courts have identified a power to make a compensation order if the statutory nuisance is still in existence or likely to recur at the time of the court hearing and the court imposes a fine. But in Herbert v. London Borough of Lambeth 24 HLR 299 Woolf LJ, at pp.304-5, pointed out the limitations of this remedy, and it may be that the effect of the recent decision of the Divisional Court in R. v. Liverpool Crown Court, ex parte Cooke (unreported, 3rd April 1996) is to curtail this remedy still further. In that case Leggatt LJ, with whom Sir Iain Glidewell agreed, said at p.7 of the transcript:

"The power to make a compensation order under section 35 of the 1973 Act is of course not peculiar to statutory nuisance. So the power, and the monetary limit to which it is subject, were not themselves tailored to the requirements of statutory nuisance. It also seems unlikely that the Legislature paid regard specifically to the period in respect of which compensation would be payable. By section 35 the court may make a compensation order ´for any personal injury, loss or damage resulting from' the offence. The offence is of allowing a statutory nuisance to exist at the complainants' premises at the date of the hearing.

I see no warrant for construing section 82 (or section 35) so as to entitle the court to take account of the whole period for which the nuisance is alleged to have existed. That is not the subject of the complaint, which therefore gives no notice to the person responsible of the length of the period for which the nuisance is alleged to have existed."

The present case throws up in vivid relief the injustice that may be caused because children whose health is damaged through living in damp, mouldy conditions have no right to claim compensation against local authority landlords for the injury they have suffered. But the courts must not try to provide a remedy by straining the law and misapplying legal principle.

In the Habinteg case Staughton LJ started his brief judgment at p.306 by saying that he was not satisfied that the dismissal of the tenant's claim was the right result which the law ought to reach and that the tenant ought to have some compensation for the misery she had suffered because of the cockroaches. He ended his judgment in these terms:

"It may be that the Public Health Act, or its successor, provides some means for securing that these matters are put right promptly, but it does not seem to have worked in this case. We are told that the Law Commission has been considering such a problem. It is to be hoped that they will recommend a solution. What is more, it is to be hoped that if they do, Parliament will carry it out. Judges and lawyers are sometimes reproached when the law does not produce the right result. There are occasions when the reproach should be directed elsewhere."

This case demonstrates that recourse to the Public Health Act could bring about the abatement of a statutory nuisance eventually, and could ensure a modest award of compensation: Part III of the Environmental Protection Act 1990 now provides the vehicle for these remedies. But it also demonstrates yet again that there continues to exist a class of case where a serious wrong continues to be without a remedy in the civil courts. Parliament has now had the Law Commission's report for over six months. The resolution of this injustice lies in decisions being taken about the allocation and distribution of public sector finance to the health service and to local government which are for ministers and Parliament and not for judges to take in our constitutional scheme of things.

For the reasons given by my Lord, Lord Justice Nourse, I agree that, although the Issa children have no other remedy in the civil courts, Miss Tagliavini's ingenious attempt to create a civil remedy out of Part III of the Public Health Act 1936, although in the finest traditions of the English Bar, is fundamentally unsound as a matter of legal principle, and that this appeal should be allowed.

Order: appeal allowed; assistant recorder's awards of damages and interest discharged and both actions dismissed; legal aid taxation granted to the respondent plaintiffs.