Bole and another v Huntsbuild Ltd and another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PILL,LORD JUSTICE DYSON,LORD JUSTICE LONGMORE |
| Judgment Date | 20 October 2009 |
| Neutral Citation | [2009] EWCA Civ 1146 |
| Docket Number | A1/2009/0712 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 October 2009 |
[2009] EWCA Civ 1146
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(HIS HONOUR JUDGE TOULMIN QC)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Pill
Lord Justice Dyson
Lord Justice Longmore
A1/2009/0712
MR HUSSAIN appeared on behalf of the Appellant
MR CROWLEY appeared on behalf of the Respondent
: Lord Justice Dyson will give the first judgment.
: This appeal raises issues as to the meaning and application of Section 1 of The Defective Premises Act 1972, (“the 1972 Act”).
By his judgment of 30 March 2009, HHJ Toulmin CMG QC held that the second defendant (“RMA”), was in breach of Section 1 of the 1972 Act, and awarded the claimants damages, which he assessed in the sum of £218,616.91.
RMA appeals with the permission of Waller and Carnwath LJJ.
Section 1 of the 1972 Act provides:
“(1) A person taking on work for, or in connection with, the provision 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 … to see that the work that he takes on is done in a workmanlike, or as the case may be, professional manner with proper material, and so that as regards that work, the dwelling will be fit for habitation when completed.”
RMA are a firm of structural engineers. Huntsbuild Limited (“Huntsbuild”) has at all material times been a building contractor. By a contract made on 19 September 2001, Huntsbuild agreed to construct and sell a house to the claimants. RMA were retained by Huntsbuild to carry out or arrange for the carrying out of the site investigations, and to advise and design the foundations for the dwelling. It is not in dispute that RMA owed a duty to the claimants pursuant to Section 1 of the 1972 Act. The dwelling was built and sold to the claimants. They first noticed cracking in 2002. It was eventually discovered that the cracking and other defects that they reported to Huntsbuild were attributable to the fact that the foundations had been badly designed.
In these proceedings, the claimants contended before the judge that the defects of which they complained were all caused by ground heave, which in turn was caused by the fact that, owing to a defective design, the foundations were not deep enough. Thus, they said, RMA were in breach of Section 1 of the 1972 Act, because they had failed to see that the work which they had taken on, the design of the foundations, had been done in a professional manner, so that as regards that work, the dwelling was fit for habitation when completed. RMA denied the breach of duty, contending that such defects as existed in the dwelling did not cause it to be unfit for habitation.
The judgment.
In a detailed and careful judgment, the judge set out all the relevant facts. Early in his judgment, he considered the 1972 Act and in particular, the question of what is meant by “unfit for habitation.”That question arose in this case because RMA contended that none of the defects made the dwelling unfit for habitation. At most, they said, the defects were ones which the claimants were entitled to have remedied, but they did not make the dwelling unfit for habitation.
The judge referred to the Law Commission Report, (Law Com No. 40) “Civil liability of vendors and lessors for defective premises,” published in December 1970, paragraph 34 of which, he said, was crucial in construing the phrase “unfit for habitation” in Section 1 of the 1972 Act. That paragraph is in these terms:
“It may that be proper work with good materials will usually produce a house which is fit for habitation, but it is possible to imagine cases in which, however skilful the work and however good the materials, there is some defect of design or layout which makes the resulting dwelling unsuitable for its purpose.”
Having referred to a number of authorities and to Section 604(1) of The Housing Act 1985, the judge said:
“38. I conclude on the authorities that I must construe the Act with the following considerations in mind:
i) The finding of unfitness for habitation when built is a matter of fact in each case.
ii) Unfitness for habitation extends to what Lord Bridge described as “defects of quality” rendering the dwelling unsuitable for its purpose as well as to “dangerous defects”.
iii) Unfitness for habitation relates to defects rendering the dwelling dangerous or unsuitable for its purpose and not to minor defects.
iv) Such a defect in one part of the dwelling may render the dwelling unsuitable for its purpose and therefore unfit for habitation as a dwelling house even if the defect does not apply to other parts of the dwelling. This is also the case under the Housing Act —see Summers v Salford Corporation.
v) The Act will apply to such defects even if the effects of the defect were not evident at the time when the dwelling was completed.
vi) In considering whether or not a dwelling is unfit for habitation as built one must consider the effect of the defects as a whole.”
He then set out the facts in considerable detail and referred to the experts' reports. At paragraphs 133 to 164, he set out the conclusions of the party's experts. On many issues they were in agreement. They agreed that if a full raft underpinning were to be undertaken, the remedial works would be likely to take between 6 and 12 months to complete. They also agreed that although the foundations towards the centre of the house were inadequate to prevent heave at the time of construction, the heave movement was unlikely to cause the dwelling to reach a structurally dangerous condition, and the risk of collapse was low. There was disagreement, however, as to the amount of heave yet to occur.
At paragraph 158 to 164, the judge set out the evidence as to the consequences of the cracking which he found to exist;
“158. I) Cracking through walls leaves the escape route (hallways, stairs and landings) at risk of smoke infiltration through the cracks in the walls. This escape route cannot be considered a protected route in accordance with the Building Regulation Approved Document part B1 and put the occupants at significantly increased risk if a fire was to occur. The only method of escape available as a result of a smoke filled hallway would be via a window, which at first level is likely to cause injury. [Para 5.15 of Mr Allen's report] Mr Allen said that the temporary remedial works had closed the cracks but there was a significant risk that they may open up again. The potential failure of the gas supply pipe (which needs to be re-routed) represents, at present, an increased risk of fire.
159. ii) Cracking has occurred in walls such that fire stopping around pipes and services between the house and the garage no longer complied with Building Regulations Approved Documents B1 and temporary repairs had to be undertaken in 2007. [5.17] Again, the temporary repairs may have solved the problem for the time being, but there is continuing movement which may well cause the cracks to reopen.
160. iii) Cracking has occurred at the interfaces between walls such that they are no longer connected by either masonry bonding or by using mechanical connectors. This contravenes the Building Regulations Approved Document A Clause 2 A”(c) and this has reduced the stability of the building. [5.18] This is a problem although the building is unlikely to collapse.
161. iv) The joints between the doors and windows with the external walls have been distorted in such a way that they no longer resist the penetration of precipitation to the inside of the building and damage is occurring to the timber doors and windows in contravention of the Building Regulations Approved Document Clause C clause 5.29 (a and b) [5.20].
162. v) Cracking in the internal walls has reduced the sound insulation of the internal walls such that bedrooms and rooms containing a water closet no longer comply with the Building Regulations Requirement E(a). [5.22] It is right to emphasise that this Regulation was only introduced in 2004. However the fact that the cracking in the external walls has reduced the weather tightness of the building and does not adequately protect the occupants from wind driven precipitation is a relevant matter in considering whether or not the house is fit for habitation.
163. vi) Draughts in the house have been increased as a result of the cracks in the walls and distortion of window and door frames has occurred such that the construction does not comply with the Building Regulations Requirement L1. [5.22] This requirement relates to the conservation of fuel and power. Contravention of the Regulations is an obvious cause of increased fuel bills.
164. In addition I accept the evidence that before the temporary repairs were undertaken, plaster fell off the main bathroom wall causing a risk of injury. I have also seen a DVD which demonstrates water gushing in through the bedroom window. I accept Mr Allen's evidence that it was caused by foundation movement (rather than missing mastic).”
The experts did not agree what remedial works were necessary. At paragraph 169 to 173, the judge made detailed findings in relation to certain cracking and warping. He said that it was agreed between the experts that, at the least, further extensive work was required to be done now and that unless the underpinning solution was adopted, further remedial work would be necessary in the future (paragraph 175).
He then said:
“176. I have already rejected the Second Defendant's contention that I should look at each room and decide, whether, in isolation, that room is fit for human...
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