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IN THE SUPREME COURT OF JUDICATURE CCRTF 94/1451/C

(HIS HONOUR JUDGE GALPIN )

Royal Courts of Justice

Strand

London WC2

Wednesday, 6 November 1996

B e f o r e:

LORD JUSTICE LEGGATT

LORD JUSTICE SWINTON THOMAS

LORD JUSTICE MUMMERY

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ABDEL-HADEY MAHMOUD BAYOUMI

PLAINTIFF/RESPONDENT

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PROTIM SERVICES LIMITED

DEFENDANT/APPELLANT

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(Computer Aided Transcript of the Palantype Notes of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

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MR R HANTUSCH (Instructed by Messrs Goodman Derrick, London EC4A 1EQ) appeared on behalf of the Appellant

MR T HARTLEY (Instructed by Messrs Guest Walker & Co, York) appeared on behalf of the Respondent

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J U D G M E N T

(As approved by the Court )

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©Crown Copyright

Wednesday, 6 November 1996

J U D G M E N T

LORD JUSTICE SWINTON THOMAS: This is an appeal from a judgment of His Honour Judge Galpin given on 21 October 1994 in the York County Court whereby he gave judgment for the plaintiff in the sum of £17,148.94 damages, together with interest and costs. The Judge heard much evidence over a period of seven days and that is an important feature of this case, bearing in mind that in my view the main issues that arise on the appeal are factual ones.

The plaintiff is a registered medical practitioner and a consultant dermatologist. The defendants, Protim Services Limited, are experts in and carry on the business of providing damp proof courses, water proofing of buildings and the like. The building with which the action was concerned is known as Sunset Lodge, Grimston, Tadcaster, North Yorkshire. It is one of a pair of gatehouses to a property called Grimston Hall. It is an unusual property in that the living room, kitchen, bathroom and store cupboards are all below ground level. In 1985 the property was owned by developers, Lemolec Limited. They were anxious to sell the property and they entered into a contract with Protim to build a damp proof course and to render the building otherwise waterproof by means of a water proofing system known as "tanking". If successful, the tanking process should prevent the lateral ingress of water or damp in contradistinction to the damp proof course which deals with the problem of rising damp. The work carried out by Protim was unsatisfactory with the result that further work was carried out by them and again over a number of years on several occasions. Further work was done in 1988 and 1991, and again by other contractors in 1994. However, the tanking work as carried out by Protim was never satisfactory.

The plaintiff bought the property in 1988. At that time it was thought that the problem in relation to the ingress of water at basement level had been solved. However, in truth, it had not.

On 5 September 1988 the plaintiff wrote to Protim complaining about their work. On 26 September 1988 Protim replied in these terms:

"We are very sorry to learn that you appear to be experiencing a problem as a result of treatment carried out by this Company.

To minimise any delay in dealing with this matter would you kindly complete and return the attached claim form in order that our Surveyor may have all the relevant information.

Our usual investigations charge of £30.00 is payable at the outset. This will be refunded in full in the event of the Company's work is found to be deficient within the terms of the guarantee."

The fee of £30 was paid. On 5 October the plaintiff, Dr Bayoumi, wrote again giving details of the defects, in particular that there was damp in the storage area, the bathroom and the kitchen. On 25 November 1988 Protim wrote:

"Further to our recent telephone conversation in connection with the above property, I confirm that Protim Services will remove and renew the defective waterproof rendering adjoining the bathroom entrance and store cupboard. The waterproof render around the extractor fan pipework will also be made good with waterplug compound."

There was, quite clearly, a contract entered into between the plaintiff and the defendants to carry out the further work, and they did so in November and December 1988. However, their work was still not effective and water continued to penetrate into the lower part of the building. Not surprisingly, the plaintiff renewed his complaints.

It was (and is) the defendants' case that the problem that was being experienced by the plaintiff was in whole, or certainly in large part, caused by condensation. In January or February 1989, the defendants agreed to install a dehumidifier in the premises. The purposes of that installation was two-fold: first, to remove condensation or damp, and second to attempt to access the amount of condensation in the premises.

On 10th or 11 August 1989 there was flooding in the basement of the premises. It was the plaintiff's case that the flooding was caused by the bucket which collected the water in the dehumidifier over-flowing. In the course of the trial, an attempt was made, not foreshadowed, so far as I can make out from reading the evidence, to suggest that the flood had not occurred as a result of the dehumidifier bucket over-flowing. I observe, just as one example, that it in a letter dated 21 November 1989, Mr Hopper, a surveyor employed by the defendants, said:

"Unfortunately, during the trial period with the portable unit loaned to yourself, the machine did not switch itself off when full."

In our bundle there was also a taped conversation between the plaintiff and a Mr Hartley, another employee of Protim. It is not necessary to refer to it, but it does not read at all well from the point of view of the defendants. The Judge found, and in my judgment it cannot now be challenged, that the flood was caused by the bucket of the dehumidifier over-flowing.

Two further issues were raised in relation to the flood at the trial, and both are renewed on this appeal. The first point that is taken is that the defendants supplied the dehumidifier gratuitously, with the result that they were not obliged to ensure that it was in good working condition. There was, it is submitted, no consideration for any contract that was made. Judge Galpin expressed surprise that a reputable company like Protim should take that point. The surprise expressed by the Judge was not surprise that Protim should supply the dehumidifier gratuitously, but that a reputable company should take a point as unmeritorious as this. In the course of submissions this morning, my Lord, Lord Justice Leggatt, again expressed considerable surprise that this point was still being taken by a reputable company, and I am likewise surprised by it. In my view, the point is without merit and without legal substance.

The plaintiff and Protim were engaged in a dispute, the defendants agreed to carry out work to remedy their own defective work, and the further work proved unsuccessful. The plaintiff complained about the further unsuccessful work. In my judgment, there was plainly a contract between the parties to install the dehumidifier. The parties agreed that it should be installed, and the consideration was that, if by means of the use of the dehumidifier the faults were remedied, the plaintiff would not then pursue his complaints. Alternatively, he agreed to the installation of the dehumidifier so that the defendants could investigate the position with a view to carrying out further remedial work. The installation of a dehumidifier was part and parcel of the overall remedial work which the defendants were carrying out as a result of their earlier bad workmanship.

The second issue was whether it was established on a balance of probabilities that the flooding was caused by a fault in the dehumidifier. There was much evidence given at the trial as to whether the plaintiff or the defendants were responsible for emptying the bucket when it was full of water. The bucket should be inspected every 48 hours and, if necessary, emptied. The plaintiff himself was working at a hospital in London. It was the defendants' case that he agreed that he, or someone else living at the premises, would empty the bucket. It was the plaintiff's case that, certainly from February 1989 onwards, Mr Hart-Woods, an employee of Protim, would undertake that responsibility. The Judge found as a fact that Mr Hart-Woods had undertaken the responsibility of insuring that the bucket was emptied when necessary. There may have been some confusion about this, but it was Mr Hart-Woods' own evidence that he had agreed to monitor the proper working of the dehumidifier and, incidentally, the bucket. However, it seems to me that this issue, which took up much time at the trial, is very largely irrelevant. The dehumidifier worked on a timing switch. If it was working properly, then the timer would automatically switch off the machine if the bucket was full. Further, the unchallenged evidence was that flooding could not be caused by improper placement of the bucket, if the machine was working properly, because the timer would not switch the machine on in those circumstances.

The fact that the dehumidifier failed to work as it should have worked was, in reality, admitted by Mr Hart-Woods in the course of his cross-examination by Mr Hartley. Accordingly, in my view, once it was proved that the flooding was caused by the dehumidifier, then it must follow that it was caused by some fault in it. It is true that, on examination, no fault was subsequently found, but in my judgment on the facts proved, the Judge was not only entitled to come to the conclusion that this flood was caused by a fault in the dehumidifier, that was the only sensible conclusion at which he could arrive.

It follows therefore, in my view, that the plaintiff is entitled to recover such damages as claimed for the defendants' breach of contract or negligence.

One of the heads of damage related to the kitchen units. Mr Hantusch has submitted in relation to the kitchen units that the Judge's finding that the plaintiff was entitled to recover damages in respect of those units was not justified by the evidence. The Judge, having heard the evidence, found that the kitchen units had been damaged by the flooding and, in my view, that finding of fact cannot now be challenged. So far as items of damage are concerned, it is my view that the Judge held the balance very fairly between the plaintiff and the defendants, and he allowed some heads of damage and he disallowed others. The plaintiff's initial claim was very substantially reduced. In those circumstances, a heavy burden lies on defendants who wish to object to any particular head of damage or to upset it in a case such as this one.

A part, albeit a relatively small part, of the plaintiff's claim lay under the provisions of the Defective Premises Act 1972. Section 1(1) of the Defective Premises Act 1972, provides:

"A person taking on work for or in connection with the provisions of a dwelling (whether the dwelling is provided by the erection or by the conversion or enlargement of a building) owes a duty -

(a) if the dwelling is provided to the order of any person, to that person; and

(b) without prejudice to paragraph (a) above, to every person who acquires an interest (whether legal or equitable) in the dwelling;

to see that the work which he takes on is done in a workmanlike or, as the case may be, professional manner, with proper materials and so that as regards that work the dwelling will be fit for habitation when completed."

Mr Hantusch submits that on a proper construction of the section, and in particular the words "as regards that work the dwelling will be fit for habitation when completed", means that prior to a plaintiff claiming damages, he must show that the works complained of were the sole and only cause of the building being unfit.

There can be no doubt that the defendants owed a duty to the plaintiff to carry out their work so that the dwelling would be fit for habitation. The Judge found as a fact that, from a time very shortly after the plaintiff's purchase of the premises until the trial, the premises were not fit for habitation by reason of damp. Having read all the transcripts of the evidence given in this case, it seems to me that the Judge was clearly right to make that finding. The real issue in the case was as to the cause of the damp. The defendants have submitted that a primary, or at least a major cause of the damp, was condensation for which they were not responsible. However, Mr Wild, one of the experts called by the defendants, and their independent expert agreed that the penetrating damp which was coming through the tanking was a significant cause of the dampness.

In his judgment, the Judge said:

"I take the view that if it was a significant cause, then the Defendants have failed in their duty to provide a building which, as far as their work is concerned, was fit for human habitation.

I do not think that it is necessary for the Defendants' work to be the sole cause of the unfitness. I take the view that it can be combined with other causes, provided that it is a significant cause or a significant factor in rendering the premises unfit."

I do not for my part consider that in a case such as the present, section 1(1) of the Defective Premises Act 1972 should lead to unnecessary complication or legal sophistication. Nor do I think, when construing the relevant section of the 1972 Act, that very great assistance is to be derived from the provisions of the Housing Act 1985 (as amended). That section is concerned with fitness for human habitation in relation to the provision of dwelling houses by a local housing authority.

The words of the section are quite plain. The question that a Judge has to pose, in my view, is this: has the plaintiff proved, on a balance of probability, that the defendants' failure to do his work in a workmanlike manner has caused the dwelling to be unfit for habitation? In answering that question, the Judge, of course, has to take into account other factors, in this case, his view as to whether, and if so to what extent, condensation contributed to the dwelling not being fit for habitation.

In my judgment, the plaintiff does not, on the plain wording of the section, have to prove that the defendants' breach of duty was the only cause of the building being unfit. Paragraph 1293 of volume 45 of Halsbury's Laws of England says:

"The plaintiff in an action for breach of statutory duty can recover only if the damage which he has suffered was caused or materially contributed to by the breach of duty."

That passage is wholly apt, in my view, to cover the present situation.

The Judge answered the question which I posed a moment ago in the affirmative and, in my view, on the evidence that he heard he was right to do so. I do not myself read the conclusion of the Court of Appeal in Andrews v. Schooling [1991] 1 WLR 783 or Judge Esyr Lewis QC sitting as an official referee in Miles Charles Thompson and Partners v. Clive Anderson and Partners (1992) 8 CLJ 199 as coming to any different conclusion. Nor do I accept Mr Hantusch's submission in relation to Andrews v. Schooling that this Court would have entered summons judgment in favour of the plaintiffs in that case if they had come to the conclusion contended for by the plaintiffs in this case.

Turning to the question of damage, Mr Hantusch submits that the Judge should have approached the plaintiff's evidence in relation to his losses with considerable caution. In part, this submission is based on the fact that the plaintiff claimed that his music centre was damaged in the flood. His evidence in relation to that appears to have been untrue. However, the Judge specifically referred to that part of his evidence in his judgment, and he said that it caused him to look with "something of a jaundiced eye" on his other estimates of damage. He did so and, as I have already said, he disallowed a number of items.

Complaints were made in relation to the Judge's finding as to the plaintiff's claims for damage in relation to his carpets, his kitchen units, his books, his loss of use and his travel costs. As to the damage to the carpets, kitchen units and books, the Judge considered the evidence in relation to those items and he made specific findings. Mr Hantusch makes particular complaint about the Judge's finding as to the carpets. In my view, the Judge having heard the evidence was wholly entitled to make the findings of fact that he did and they cannot now be challenged.

Mr Hantusch particularly criticises the Judge's findings in relation to two heads of damage. The first relates to the loss of use. The plaintiff says that it had been his intention, if the premises had been in a good state of repair, to let them to tenants because he could not spend very much time there himself. He claimed £5,000 a year gross rental, £3,000 a year net. The Judge did not allow that item and said that in his view what would be allowed was loss of use and enjoyment. The Judge allowed a figure of £1,500 a year for four years, making a total of £6,000.

Mr Hantusch's first point in relation to that claim and the claim for travel expenses, is that they are not amenable to being brought under the provisions of the Defective Premises Act. As was pointed out by Lord Justice Leggatt in the course of argument, the short title to the Act is in these terms:

"An Act to impose duties in connection with the provision of dwellings and otherwise to amend the law of England and Wales as to liability for injury or damage caused to persons through defects in the state of premises."

There is nothing, in my judgment, which would indicate that an injured plaintiff is not entitled to recover such damage as he may prove he suffered by reason of the wording of section 1. The paragraph in Halsbury (volume 45) immediately preceding the one which I read a little earlier, is paragraph 1292 "Measure of Damages", in these terms:

"The damages recoverable in respect of a breach of statutory duty are such as are contemplated by the statute and this will include damages which are the natural consequence of the breach..."

Again, in my judgment, that statement of principle is apt to cover damages for breach of section 1 of the Defective Premises Act.

The next point that is taken by Mr Hantusch is that there was no pleaded claim for loss of use. The plaintiff put his claim under his heading in this way: "the plaintiff had intended to let the property from November 1988 at a weekly rental of £200 but has been unable to do so by reason of the matters aforesaid". The Judge did not allow that item and said that, in his view, what was claimed was loss of use and enjoyment. The Judge heard evidence on that aspect of the case. In my view there is nothing in the pleadings point. The plaintiff in the paragraph that I have just read is clearly indicating that he was claiming damages for loss of use and once the Judge rejected his claim for damages for his inability to let the premises, he was perfectly entitled to substitute for that damages for loss of use and enjoyment.

The Judge allowed a figure of £1,500 per year for four years making a total of £6,000. In my view that item of damages is clearly allowable under the provisions of the Defective Premises Act, and I do not myself think that it has been shown that his assessment, either in the terms of the annual value or the period of time was excessive.

The Judge did not make any allowance in respect of the loss of earnings claimed by the plaintiff. That perhaps might have been a little harsh, but there is no cross-appeal in this case.

That brings me to the final head of damage which is criticised which is the claim for travel costs. Clearly, for reasons which I have already given, loss by reason of having to travel is, if proved, recoverable. It could be said that the Judge was perhaps a little generous in his assessment of the travel costs. Indeed, his initial assessment would have resulted in the plaintiff recovering rather more than he had claimed. The Judge made an assessment of the costs that the plaintiff would incur by travelling from London or from his home in Welling to the house in Yorkshire. He said that he would allow £45 per journey. He then found that the plaintiff undertook 20 journeys a year over a period of five years. Accordingly, he allowed him £900 a year over that period of five years, which arrived at a total of £4,500 which the Judge then reduced to £3,500 because that was the sum claimed.

The Judge had to come to his conclusion based on the evidence that he heard. The plaintiff's evidence was that he travelled up to Yorkshire once a week in order to oversee the premises and to deal with the problems that had arisen as a result of the defendants' bad workmanship. The Judge substantially reduced that claim and, effectively, allowed a journey of somewhat less than once a fortnight. It may perhaps have been, as I have said, a little generous, but I do not think that the Judge's approach to this aspect of the claim can be seriously criticised. There can be no doubt that the plaintiff did have to make a number of journeys to Yorkshire by reason of the defective workmanship of the defendants over a period of years, and I do not think that an overall sum of £3,500 seriously over-estimates the travel costs incurred by him.

Accordingly, for those a reasons I would dismiss this appeal.

LORD JUSTICE MUMMERY: I agree.

LORD JUSTICE LEGGATT: I agree.

ORDER: The appeal will be dismissed with costs; The stay will be removed and the order made for payment out of the sum in Court to the respondent's solicitors with interest at the judgment rate.