Appah v Parncliffe Investments Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PEARSON |
| Judgment Date | 10 February 1964 |
| Judgment citation (vLex) | [1964] EWCA Civ J0210-1 |
| Court | Court of Appeal |
| Date | 10 February 1964 |
[1964] EWCA Civ J0210-1
In The Supreme Court of Judicature
Court of Appeal
Form His Honour Judge Howard West London County Court.
Lord Justice Harmak
Lord Justice Pearson and
Lord Justice Dayies
Mr. D. HEKRY (instructed by Mr. J. F. Kelemen, London, S. E. I) appeared on behalf of the Appellant (Plaintiff).
Mr. BOYDEK THOKAS (instructed by Messrs. Davies, Arnold & Cooper) appeared on behalf of the Respondents (Defendants).
(without calling upon Counsel for the Appellant to reply) LORD JUSTICE HARMAK: I will ask Lord Justice Davies to give the first judgment.
LOHD JUSTICE DAVIES: This is the plaintiff's appeal from a judgment of His Honour Judge Howard given at the west London County Court on the 29th July, 1963. The action arose in this way. In October, 1962, the plaintiff was a resident in an establishment owned by the defendants called the Emperor's Gate Hotel, at No. 38 Emperor's Gate, Kensington. During, it would appear, the daytime of the 10th October, 1962, her room in that house was broken into by some unauthorised person and all her belongings - that is to say her clothing in three suit cases and, I gather, a fourth case containing gramophone records - were stolen. As a result of that she brought this action against the defendants, claiming damages for, as she alleged, their negligence in failing to take proper measures to look after and to see that no unauthorised person could get into her room.
Three points arose. The first was, what was the nature of the plaintiff's occupation of that room. Her case as pleaded was that she was a boarder in a boarding house; alternatively it was put that she was a lodger, or perhaps the most compendious description of her contention as to her status was that she was a licensee for payment. It is conceded and has been conceded throughout on behalf of the defendants that, if that was her status, in the circumstances of this case they were under an obligation to use reasonable care to see that she and her property suffered no loss. But the defendants' contention was that she was a tenant in their house; and if that be so, then in turn it is conceded on behalf of the plaintiff that she has no remedy, there being no duty on a landlord to exercise care to look after his tenant's property in circumstances such as the present. That was the first point; and that point was decided in favour of the defendants by the learned judge. He went on to consider the next point on the hypothesis that his view on thefirst point was wrong and that the lady had a right to look to the defendants for reasonable care in taking precautions for the safety of her goods. The question then was, had the plaintiff proved that the defendants were negligent. The judge found against the plaintiff again on that issue. The third issue was the amount of damages. That has not been discussed in this court at all, as it is agreed by "both parties that, if the plaintiff is entitled to succeed, the sum which was provisionally, assessed by the learned judge, namely, £360, is the proper sum lor the plaintiff to recover.
I think that perhaps the most convenient thing for me to do is to give a short outline of the history of the matter and then to deal with the learned judge's findings of fact on the question as to what was the nature of the plaintiff's occupation of the premises.
This house had, it appears, once upon a time been a hotel, but, from the evidence of the plaintiff and indeed from the evidence of everybody else, it had ceasea to be a hotel properly so called. There was not any suggestion that it was a hotel. The house was divided up into 17 rooms, each of them with its own lale lock and key, where people could reside on payment of either 15s.Cd. a day or £5 a week. No meals of any sort or kind were provided; but service, in the sense of daily cleaning and, I gather, the making of beds and the weekly supply of fresh linen, was provided by the defendants in consideration of the payments made to them.
The evidence as to the nature of the business carried on by the defendants was contained partly in the evidence of a manager, 1-iT. Geoffreys - not the manager of this property only but of a great many similar properties of the defendants - that of the plaintiff and that of a gentleman called Mr. Schumann. He had occupied the same room as that which the plaintiff subsequently occupied. He was there from about February to September, of 1962 and had vacated it only shortly before the plaintiff went in. I need not, I think, spend much time on Mr. Schumann'sevidence, save to deal with one matter which relates to the other part of the case. In March, according to Lir. Schumann, or April, according to a detective officer who was called, some unauthorised person obtained admission to Mr. Schumann's room by slipping back the Yale lock through a rather wide gap that existed between the door and the door jamb. Mr. Schumann seems to have thought that this was done by a key; but the detective's evidence was plainly to be preferred in that behalf. The detective thought the lock in its then state was very poor and suggested to one of the defendants' managers that the front door of the house should be kept shut. That was never done. Some articles of Mr. Schumann's were stolen on that occasion, and the coin-box of the gas meter (there being a gas meter in each room) had been broken open and the contents stolen. There was a mortice lock already fitted to the door but no keys of that had been provided. Mr. Schumann, at his own expense, caused two keys to be cut for that door and thereafter he relied on the mortice lock. He had no subsequent trouble, and when he vacated the room in September he handed the keys to the defendants.
Miss Appah went into this room on the 25th September. On the 9th October, on coming back from work, she found a representative of the defendants and two other men in her room. Somebody had obtained admission to her room, it would appear by using a key, and the coin-box of the gas meter had again been opened and rifled. On the very next day, the 10th October, there took place, in circumstances I shall describe in a moment, the theft in this room to which I have referred.
On the issue whether the plaintiff had a tenancy or a licence, the facts are, I think, conveniently set out in two pages of the judgment of the learned judge. After referring to some authorities, he said: "Mr. Geoffreys" - that is the manager - "was not a very satisfactory witness but I accept his evidence thus far at any rate. The building had been run as a hotel and that accounts for its facia 'Emperor's Gate Hotel'.Some years ago the premises were converted into separate rooms; cooking facilities in each numbered room were provided". When the learned judge says "cooking facilities", what he means is that there was a gas ring. "Latch keys were also provided. The pattern repeats itself in London, as in Prance, namely a hotel converted frequently into self-contained flats. I find that there were in all about 80 self-contained flats under the control of the defendants". I will interpolate there that care, I think with respect, ought to be used with regard to the phrase "selfcontained flats"; for although each flat had its door key, as I have stated, and had a gas ring, no flat had a bathroom or a W. C: the occupants were common users of the bathroom and the W. C. somewhere in the building.
The learned judge continued: "The theory was that they were let by those responsible on weekly tenancies as self-contained flats. There was some kind of letting office run by Mr. Ryan". That was at a different house, No. 14. "At No. 38 the resident housekeeper was Mrs. KcKenzie. The plaintiff dealt with her but she left and had not been called. I see no reason why I should not accept the plaintiff's, evidence. The plaintiff telephoned and asked for rooms. She thought it was a lodging house or hotel. She asked if breakfast were provided. She was told 'No, not any more". The same day she called. The door was open. An inmate was coming out who directed her to Mrs. McKensie. Mrs. McKenzie said the charges were 15s.Od. daily or £5 per week. The plaintiff said she wanted the room from 25th September. She was told to leave a deposit-anything you like'. She left £1. On the 25th September she moved in and paid £4 to make it up to £5. The second week she paid £5. After the room was broken in Llrs. McKenzie accepted £3 for the extra days at the end". That was four days over the fortnight. "The plaintiff was told of the terms - 'You can do as you please;' but do not make too much noise". She had free hot water and electricity, clean linen weekly and daily cleaning and a meter for gas ring.
"Now I will try to construct some kind of a balance sheet.In favour of the view that this was a lodging house she was offered a room daily at 15s.Od. The plaintiff was allowed to leave with virtually no notice". The notice that the plaintiff gave in fact was a few hours, according to her evidence. "Notices were put up 'All visitors to leave by 10.30 p.m.' and there was a written instruction by the front door 'Keep the door shut'. Finally, the name 'JSmperor's Gate Hotel' appears on the outside of the building.
"On the other side, the accommodation appeared to be selfcontained". I have already commented on that word. "Keys to both doors" - that is, the room doov and the front door - "were provided together with a separate cooker" - and again "cooker" means "gas ring" - "and no meals were provided.
"Certain facts can safely be ignored in this kind of arrangement. One may dismiss the fact of service, hot water and cleaning of staircase and common part. It is a feature regularly met with in the letting of many blocks of flats in London. The occupants would be very surprised to learn that because these amenities are provid-ed they...
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