ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
His Honour Judge Karsten QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LLOYD
LORD JUSTICE RIMER
| TANYA GRAND
|- and -
The Respondent, Mr Gill, appeared in person
Hearing date: 1 March 2011
Crown Copyright ©
Lord Justice Rimer :
A. Damp and Mould
B. Water ingress
C. An inadequate boiler
The judge's further findings and conclusion
'26. … It seems to me that, save to the extent that it can be shown that any structural damage is caused which could constitute actionable disrepair, the principles of Quick v. Taff Ely apply to this case. The only possible structural damage arising on the facts of this case might be damage to the plasterwork, but there is no evidence that the condensation required more than the walls to be cleaned, so that the damage caused was decorative rather than anything else.
27. Essentially, it seems to me that the principal cause of the damp and mould is therefore the design defect in the property, for which [Mr Gill] is not to be held responsible, but I am satisfied that it was contributed to to a certain extent by the non-functioning and/or poor functioning of the boiler during the first three years of the tenancy, and that is disrepair of the installation for which [Mr Gill] is plainly responsible. It was also contributed to to a small extent by the fact that for a year or so one of the double glazed windows had been smashed and was to be repaired, so that one of the two layers of double glazing was absent. In addition, as I touched on towards the beginning of this judgment, the ingress of water contributed to the condensation, but the lack of adequate heating in my judgment did make a contribution to the condensation problem.
28. In his first report, the expert says, at paragraph 5.02.1, that "condensation occurs when moisture in the air condenses on cold surfaces, consequently the control of condensation is governed by the presence of moisture within the air and the presence of cold surfaces." He goes on to say that "the presence of cold surfaces is governed by thermal capacity and performance of the structure, together with the presence and use of heating system." It was the failure or lack of any adequate heating system for these three years [November 2004 to November 2007] that made a contribution, as I have found, to the fact that there were these cold surfaces upon which damp and mould was able to grow.
29. In addition, there is one area which relates to the exterior of the flat itself. It is referred to in the Scott Schedule to the first report, at paragraph 1.02, where "dampness with minor efflorescence and minor mould growth" is noted at the top of the front wall of the living room, requiring all defective plaster to be hacked off down the wall, approximately 600 millimetres from the ceiling. This was caused by the guttering, but it is a structural defect.
30. As to the lack of heating at all for periods of time and to an adequate standard for the remainder of the first three years of tenancy, plainly this created an extremely difficult situation for [Ms Grand] and her daughter. The daughter (or her mother) describes how at the beginning they shared a bed and had to cuddle up and cover themselves as best they could against the cold. The lack of the possibility to have a shower and to wash clothes properly must have made living conditions extremely difficult, and there is no doubt that [Mr Gill], having been given notice as I have found, failed to take reasonable steps to get the matter put in order over this three year period, until eventually the boiler was replaced. …
33. I now turn to assess the damages. … In assessing the damage and disrepair I have regard to and follow the approach approved by the Court of Appeal in Wallace v. Manchester City Council  3 EGLR 38. I have regard to the rent that was payable. I have regard to the discomfort and inconvenience. I approach this case on the basis that it is right to take both aspects into account, so that I approach it as a mixture of the two. I take into account the rent in assessing damages for distress, discomfort and inconvenience. The most important damage, so to speak, was the consequence of the damp and mould, but it seems to me that on the evidence it is not possible to say that more than a ten per cent contribution to the damp and mould was made by the lack of adequate heating coupled with the small matters of the ingress of water into the living room from the guttering and the broken window which was repaired after a year or so. On the basis of full liability for that part of the claim I would have considered that damage in the region of £2,000 per annum would be appropriate, that is to say, £6,000 in all, but since I find the defendant is responsible only to the extent of ten per cent, the award under this head is only £600.
34. A much bigger award arises in relation to the boiler problem. The 207 days, amounting to approximately 30 weeks, during which there was no heating should, in my judgment, be dealt with by an award of damages of £1,750. The remainder of the first three years of the tenancy, during which there was inadequate heating coming from the boiler, should be compensated at the rate of £1,200 per annum. In setting that figure I have regard to the decision mentioned in Islington v. Spence in July 2001, Legal Action 26 in Clerkenwell County Court, referred to by [counsel for Mr Gill] in paragraph 43 of his skeleton argument, in which the court awarded £1,100 per annum for the period during which, after heating had been restored, the radiators failed to heat up properly, and I add a little to take account of [inaudible] since 2001, so that produces a figure of £3,600 for three years, less approximately £700 for 30 weeks covered by the award of damages for there being no heating at all, so producing a total under this head of £2,900. This means that damages for disrepair will be awarded at a total figure of £5,250.
35. As to the damages for breach of the covenant for quiet enjoyment, in the circumstances it seems to me it is a relatively modest sum. It will be appropriate to cover the distress and inconvenience suffered by [Ms Grand] and I fix that at £350. So the total damages will be £5,600.'
'2.3.1 The structure and exterior of the Property (including drains, gutters and external pipes) …
2.3.3 The installations at the Property for space heating and heating water.'
'the reference in paragraph (a) of that subsection to the dwelling-house included a reference to any part of the building in which the lessor has an estate or interest; …'
'Hack off all defective plaster and properly re-plaster to a smooth and even finish. Prepare and decorate front wall complete.'
The judge referred to this damage in paragraph 29 of his judgment. The only other reference to damaged plasterwork in the Schedule was in paragraph 5.01, relating to the kitchen ceiling, where significant dampness was noted. The repair required was in terms identical to that just quoted, save that the second sentence read 'Prepare and redecorate ceiling complete.'
'… I have come to the view that the structure of the dwellinghouse consists of those elements of the overall dwelling house which give it its essential appearance, stability and shape. The expression does not extend to the many and various ways in which the dwellinghouse will be fitted out, equipped, decorated and generally made to be habitable. I am not persuaded by Mr Brock [counsel for the landlord] that one should limit the expression "the structure of the dwellinghouse" to those aspects of the dwellinghouse which are load bearing in the sense that that sort of expression is used by professional consulting engineers and the like; but what I do feel is, as regards the words "structure of the dwellinghouse", that in order to be part of the structure of the dwellinghouse a particular element must be a material or significant element in the overall construction. To some extent, in every case there will be a degree of fact to be gone into to decide whether or not something is or is not part of the structure of the dwellinghouse. It is not easy to think of an overall explanation of the meaning of those words which will be applicable in every case and I deliberately decline to attempt such a definition. I am content for the purposes of this case to say that I accept Mr Brock's submission that "structure of the dwellinghouse" has a more limited meaning than the overall building itself and that it is addressed to those essential elements of the dwellinghouse which are material to its overall construction.
That I think is as far as I am able to go. In coming to that conclusion I have been guided to some extent and have sought to follow the approach suggested by Lord Justice Megaw in Campden Hill Towers Limited v. Gardner  1 QB 823, in particular the passage that appears at page 834F….'
'… As I have said, section 32(1)(a) and the words "structure of the dwellinghouse" mean something less than the dwellinghouse overall and limited to the essential material elements that go to make up the structure of the dwellinghouse. It seems to me that internal wall plaster is more in the nature of a decorative finish and is not part of the essential material elements which go to make up the structure of the dwellinghouse. I therefore hold that internal wall plaster and, for the same reasons, the door furniture do not form part of the structure of the dwellinghouse, bearing in mind I have held that those words mean something less than the overall construction.'
'17. Whilst I accept, as I have emphasised, that words such as "structure" or "main structure" must take their meaning from the particular document, lease or statute in which they are found, and from the surrounding circumstances, and while it can be said that any attempt to define them will, to an extent, raise as many questions as it answers, it seems to me that that is a good working definition to bear in mind, albeit not one to apply slavishly.'
The issue in Marlborough was whether wooden joists in the intermediate floor of a two-storey maisonette formed part of 'the main structures of the Property' and the manner of its resolution is of no direct assistance for present purposes.
Lord Justice Lloyd :
Lord Justice Thomas :