England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON CIVIL JUSTICE CENTRE
(HIS HONOUR JUDGE MITCHELL)

		Royal Courts of Justice Strand, London, WC2A 2LL
		16 February 2012

Lord Justice Longmore:

1. On 1 August 2007 Ms Siveter complained to her landlords, the London Borough of Wandsworth ("the Council"), that a pigeon had nested outside her fourth-floor flat at 266 Curtis Road in Putney and that there were droppings and a general mess from the nest.PRIVATE 
2. It is accepted by those who know about these things that pigeons are hosts to poultry mites, who are a hazard to human health and are parasites liable not merely to exist in pigeons and their nests but also to migrate in search of another host once their first host has disappeared.
3. When the Council became aware of this state of affairs they despatched their expert pigeon removers, a company called Pestex, to deal with the problem. On 6 August they removed the nest and de-infested the immediate area of that nest.
4. The nest itself was sited on top of a contraption outside Ms Siveter's flat which had once been a coal bunker and is now described as a cupboard. On the right hand side of the door to the flat there is a recess which contains the cupboard with a window above it. There was a lid on top of the cupboard and inside the cupboard various things had been stored by Ms Siveter or her predecessors, and there was also an opening between the cupboard itself and the flat into the hall or toilet of the flat.
5. The judge held that what happened was that poultry mites came from the pigeons in and around the nest and had entered the cupboard from above and then migrated into the flat. The claimant asserts that she has a phobia to these mites, that in due course they multiplied and made the flat uninhabitable and attacked both her and her son, who were peculiarly susceptible to these mites, and that she suffered both physical injury and psychological injury and has not been able to return to the flat. She now lives in or around Epsom.
6. She claimed Legal Aid to sue the Council for this injury and she pleaded that the Council had failed in breach of their obligations under her tenancy and their common law duty of care to take reasonable steps to abate the infestation, and in particular failed to do a proper inspection of the cupboard after the removal of the pigeon nest, as a result of which the mites, which were all inside the probability, the cupboard had migrated into the flat.
7. She also instructed an expert environmental health consultant, Mr Cairns, who inspected the flat on 20 September 2007 and in his written evidence said that infestation of the flat could result from an infested pigeon nest because the mites would be driven to search for hosts away from the original source once that original source was removed. He provided a report which stood as his main evidence in chief. That report said in paragraph 3.02, among other things:

"Under favourable conditions the lifecycle (egg to egg) can be completed within 7 days (allowing rapid growth in population).

Mites can survive without a blood feed for up to eight months and can resist desiccation."

He further said, at paragraphs 3.03 and 3.04:

"Mites lay their eggs in crevices, under floorboards and other dark locations. The mites spend the majority of their lifecycle in such locations and feed mainly at night. They are notoriously difficult infestations to eradicate in poultry housing situations.

The recessed area with the store cupboard below and casement window at the rear provide both clear routes into the dwelling for the mite and dark harbourage places. With the removal of the nest and pigeons the mites are likely to have sought alternative hosts and food sources inside the flat."

8. When he gave his oral evidence on behalf of the claimant he was asked some further questions, in chief by Mr Carrot on the claimant's behalf, and he said that when he looked at the property:

"…I saw a number of mites on the windowsill immediately behind the window that we saw on the photographs, and noted that the window itself incorporated a vent at the top, an opening, and as you can see perhaps from the photographs, it's not a great distance from the surface of the coal store to that vent. Probably more critically, the lid of the coal store had a lot of debris about it on opening, including feathers and other detritus, and photographs 5, 6 show externally the lid lifted and the detritus around the rim. Of course, there were stored items below, inside present."

That is at page 62. Later, at page 64, he said:

"I think it would be prudent to take in the peculiar arrangement we have, in the sense of that you've this coal store and the proximity of a window, they may have looked inside the property and they may have, precautionarily sprayed the store itself internally, lifted the lid, sprayed inside, as a minimum. If they'd been told the problem is inside the flat, they should have gone in."

Mr Carrot then asked:

"Now, once the spray takes place externally, can you explain to the court how it is that the mites end up inside of the property?

A: With the removal of the nest and the pigeons, and as I understand it hatched hatchlings, they've lost their host, and like most living creatures, they're not very willing to simply die and give up, they will try and find an alternative host, where movement is classically what these sort of pests detect, eat, and carbon dioxide maybe others, and they'll try and find somewhere else. […] It's common knowledge I think that they will attack other creatures, other mammals, including humans, and take their feeds there. So they would I think migrate from the coal store into the flat."

9. It was put to him by Mr Lintott in cross-examination that the cupboard was locked at the time that Pestex came to do their de-infestation. The judge made no finding about that and Pestex themselves were not called to give evidence. Mr Cairns could not know about that, but what he said was:

"…if I'd attended at the property, as pest officers did on the earlier occasion, I think I would have flagged up the worry about the store cupboard as a particular focus for a reservoir of infection and infestation…

…what I say is, I would have flagged up that this was a particularly sort of vulnerable position for the nest to be in, because it's, it had this clear route for mites and other pests associated with pigeons.

As I say, in normal situations, mites don't have that sort of place to resort to, they're out on exposed balcony, and no clear route into the building. This is virtually in the hall cupboard or on the hall cupboard, and so to treat just externally would have been a bit minimal."

That is at page 67 of the transcript. At page 68 he says:

"…it's quite a simple point I'm making, is that unusually in this case, perhaps compared to many pigeon infestations, you have this cupboard with possessions, dark cupboard immediately below the site of the nest. It's clear that that's a place where any parasites in the nest will retreat to. So you would want to make sure, maybe leave a card or perhaps telephone number, so that you'd want to say, you should look in that cupboard."

Then in re-examination by Mr Carrot he said:

"…it's the removal of the nest which removes the host which removes the food supply to the pests, so they would pretty quickly have gone to find an alternative. They're not going to swan around hoping something else lands there. So it would have been early stage treatment, would have, I would have hoped, nipped the infestation in the bud."

10. The Council called their own employee in from their Environmental Services Department, a Mr Geoffrey Pywell, who had not actually visited the property himself. He said in his evidence that it was rare for mites to get into a house, but that if he had been there he would have inspected the cupboard. The way he put it is at page 55 of the transcript that we have, where he said:

"If we had actually inspected the premises, then we would actually give advice that the cupboard should be checked out as well.

Q: And what about the inside of the premises, given the proximity of the window, and given that the cupboard actually leads inside of the property as well?

A: We actually had a sample from inside the property, so therefore we knew the pigeon mites were inside the property.

Q: I suppose, what I am doing is, I am asking you a hypothetical question. If you saw a nest in this area, would you, as a precaution, spray inside of the property as well?

A: I would want to look in the property."

11. The judge in the course of his judgment referred to some of that evidence, but by no means all of it, and he concluded at paragraph 32:

"As I have indicated, the removal of the nest and the spraying outside took place on 6^th August of 2007. Was it unreasonable in the circumstances not to spray the inside of the cupboard? The evidence from Mr Pywell is that mites inside the houses are rare, although of course Mr Cairns did explain how they can infiltrate the property. It seems to me that in this case, an amount of effort is being placed upon hindsight by the claimant. It is a wonderful thing, there is no doubt, but it seems to me that if one comes along within five days of a complaint and removes the offending article, the pigeon nest, and then sprays the area, that could not in my judgment be regarded as an unreasonable reaction by the local authority.

It may be that another authority on another day, or another contractor on another day, might have sprayed the cupboard, but in my judgment, it could not be said to be unreasonable not to do so."

He therefore, with a certain measure of regret, found that the claim failed.

12. The claimant obtained permission to appeal from Sir Richard Buxton, and Mr Carrot still represents her in this court. He submits that the judge fell into error in saying that it was hindsight to allege that mites can infiltrate houses. That was something that the experts knew, and it must have been foreseeable both to Pestex and the Council that that could occur. He also submits that no-one from the Council contradicted the evidence of Mr Cairns to that effect and no-one from Pestex was called to say why they did not seek to de-infest the cupboard, nor was there any evidence to contradict the evidence of both Mr Cairns and Mr Pywell that they at least would have looked in the cupboard and extended the infestation to that cupboard. If indeed it was the case -- as to which the judge made no finding -- that the cupboard was locked, then they should have left a note for the claimant and reported back to the Council that it was important that the cupboard should be de-infested.
13. Mr Lintott supports the judge's conclusion and submits that it was reasonable not to have sprayed inside the cupboard because it was not reasonably foreseeable that mites would migrate into the flat. It was sufficient, in Mr Lintott's submission, to spray the area where the nest was, and he submits that it was open to the judge on the evidence as a whole to conclude that the council had not behaved either in breach of contract or negligently. He accepts that other judges might have come to other conclusions. In his skeleton argument he refers to the Wednesbury case.
14. The position is, of course, that this is not a Wednesbury situation. This is not a case where this court can only interfere if the judge's conclusion is one to which no reasonable judge could have come. In my judgment the judge did not address satisfactorily in his judgment the unanimous view of the witnesses that the cupboard should have been inspected and de-infested. His reference to hindsight seems to me not to be apposite. The existence of poultry mites is well known; their behaviour is well known to those who rightly make it their concern to be abreast of pigeon infestation, something which is very common in many boroughs of London.
15. Mr Lintott's submission was that it was not unreasonable only to de-infest the actual area and not to have regard to the cupboard. That goes too far. The contractors, Pestex, who as I say were not called to give any evidence about what they did, obviously did think it was necessary to de-infest the area where the nest actually was; and when the judge says in paragraph 32 of his judgment that if one sprays the area that could not be regarded as an unreasonable reaction, that, with respect to the judge, begs the question of what the area is. If a pigeon nest is situated on top of a cupboard, the area that should be looked at, as both Mr Cairns and Mr Pywell agreed, included the cupboard itself.
16. Mr Lintott further submits that the judge was impressed by the fact that there was a gap of eight days between the date (6 August) when Pestex removed the nest and the date when the infestation was noticed and any complaint was made by Ms Siveter on or about 14 or 15 August about the presence of mites in her flat. He says that the overwhelming probability is that the actual area of the nest was not completely de-infested and only after the contractors left did the mites start to migrate into the cupboard and then the flat. That seems to me, in the absence of any evidence by Pestex of what they did, to be a completely speculative scenario and inconsistent with the written evidence given by Mr Cairns in his report, which explains how the mites are harboured in dark places such as this cupboard.
17. In the light of the fact that the judge has not grappled with the unanimity of the evidence, it seems to me that his judgment cannot stand and it is therefore for this court to decide whether the claim should succeed, and in the light of the unanimity of that evidence it seems to me that it should. It is often a bit harsh for this court to say that a local authority is in breach of its contract as a landlord or in breach of its duty of care in relation to a tenancy of this kind, but the evidence really was all one way and in my view the judge ought to have concluded that this claimant succeeded.
18. I would allow the appeal and say that the claim succeeds.

Lord Justice Aikens:

19. I agree. I add a few words because we are disagreeing with the judge on what was a conclusion which he said was essentially based on the evidence. It is clear from the written evidence of Mr Cairns in his report at paragraph 3.03, which has been quoted by my Lord, that poultry mites will live in dark locations and will stay there for the majority of their life cycle. It is also clear that from paragraph 3.04 of the same report that the store cupboard concerned is precisely the kind of area in which these mites would live.
20. It is also clear from both the written and the oral evidence of Mr Cairns that if a host of these poultry mites is removed then they will migrate in search of nourishment. Mr Lintott accepts that none of the evidence was in any way in dispute. He also accepts that the mites that did infest the flat must have come from the store cupboard outside.
21. In these circumstances it seems to me that it was foreseeable, if not inevitable, that the poultry mites would have inhabited the store cupboard below the pigeon nest, which was on the lid of the store cupboard. Furthermore it is foreseeable again, if not inevitable, that once the pigeon nest and therefore the mites' source of food was removed they would migrate into the flat in order to find nourishment.
22. In my judgment, therefore, the judge erred in coming to the conclusion that he did in paragraph 32, viz. that it was reasonable for Pestex not to do anything in relation to the store cupboard. In my judgment, based on the uncontradicted evidence of Mr Cairns, the correct conclusion was that if the store cupboard had been open, then there should have been de-infestation action at that stage; and, if it was not, then advice should have been given that that de-infestation was necessary to be done in the near future.
23. Therefore, like my Lord, I have to conclude that the judge erred on this issue, so I too would allow the appeal.

Order: Appeal allowed