Brennan v Bolt Burdon (A Firm) and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Morland |
| Judgment Date | 30 October 2003 |
| Neutral Citation | [2003] EWHC 2493 (QB) |
| Docket Number | Case No: HQ02X02810 |
| Court | Queen's Bench Division |
| Date | 30 October 2003 |
[2003] EWHC 2493 (QB)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE MR JUSTICE MORLAND
Case No: HQ02X02810
Mr Philip Bartle Q.C. (instructed by Alison Trent & Co) for the Claimant/Respondent
Mr John Norman (instructed by Barlow Lyde & Gilbert) for the 2 nd Defendants/Appellant
Hearing dates: 21 st October 2003
Judgment.
An overall view of this litigation does little credit to the legal profession. The claimant respondent to this appeal is now being advised by at least the sixth firm of solicitors whom she has consulted. Dilatoriness has been the characteristic of the progress of her claim at least until the 26 th April 2002.
Since 1988 the claimant has been the tenant of a flat of which Islington Council, the appellant 2 nd defendants, was the landlord. She alleges that she had suffered personal injuries from carbon monoxide exposure, which escaped from a faulty gas boiler. She alleges that the exposure occurred in two periods 1988 – 15.11.95 and 13.8.96 – 16.10.98. Islington Council were contractually bound to maintain and repair the boiler.
She complained by letter to the Council dated as long ago as the 10 th August 1991 that her health was being adversely affected by the condition of her flat although at that date she attributed it to the building materials used (See page 192 Appeal Bundles).
She wrote again to the Council on the 16 th August 1991 (See page 194)
"With regard to the problems of skin & eye irritation, breathing difficulties and extreme fatigue and drowsiness which I've been experiencing in my flat, and further to the inspection visit by your Mr J Dixie & an Engineer from the Gas Section of Islington Council on 26 th July – who done nothing but look at the cupboard in which the air vent is situated, the location of the boiler, and the silverware which I'd kept in that cupboard & which has become completely blackened by a soot-like substance – and, based on these observations, decided that the air- vent should be sealed up on the outside because the fumes from the boiler were coming straight back into the kitchen (an enclosed area off the sitting-room), I confirm that this air- vent was sealed up from the outside on the afternoon of 12 August.
However, I now understand that if the wall in the kitchen where the boiler & air- vent are situated, is a cavity wall and the problem might not be resolved. Indeed it would be worsened if the fumes from the boiler flue are seeping into the cavity & into the kitchen through the inner vent."
The Council wrote to her in August 1991 (see page 119)
"RE: AIR QUALITY INVESTIGATION.
I am writing to inform you of the results of the above investigation. Firstly, because of the siting(sic) of the airbrick in you kitchen, the tarnished state of the silverware in your kitchen cupboard and the sulphurous smell inside it, it seems highly likely that fumes from the boiler flue have been re-circulating. The analysis result on black dust samples taken from the cupboard and airbrick revealed a low pH (acid) and sulphurous odour)there was not enough dust to analyse properly). In addition "Gastec" tube sampling on 6 th August 1991 indicated the presence of a very small amount of hydrogen disulphide gas, which could easily have originated from boiler fumes. The recent blocking of your kitchen airbrick by Gas Detection should therefore eliminate this source of contamination.
Tests were also carried out using the "Gastec" apparatus in your kitchen cupboard for carbon monoxide and hydrocarbons, and at the kitchen window for ozone. None of these tests showed any presence of these gasses."
On the 9 th June 1992 her consultant physician from Guy's wrote to the Council with a copy to her (See page 211).
"I am writing to support Miss Brennan's request that she be considered for suitable re-housing. Since moving to her present accommodation some four years ago she has never felt well and has been troubled by continuing irritation of her eyes and nose, associated with dryness of the skin, drowsiness and loss of memory.
These complaints first occurred not long after an operation on her nose but we have not been able to associate the present symptoms with that illness or to find any alternative medical diagnosis, apart from the possibility that she has been, and to some extent still is, affected by fumes in her flat.
I understand that there was a problem with a faulty gas central heating system which would have given exposure to carbon monoxide and although this has now been corrected it could be related to some of her continuing problems notably the loss of memory. This however does not seem to explain the whole problem and on-site inspections by both the Environmental Health Department and staff from my department recorded the noted and irritant atmosphere. Investigations have been inconclusive but we did study some heavily tarnished silverware which proved to have a coating of silver sulphide presumably from exposure to hydrogen sulphide gas. We also considered the possibility of formaldehyde vapour release from cavity wall insulation but were unable to confirm whether or not such building treatment had been used.
On balance the most striking thing is that Mrs. Brennan's symptoms are relieved when she is able to move away from the flat and stay with friends. Thus whilst we cannot prove conclusively the cause for her symptoms I believe that there is enough evidence to justify making a special effort to re-house her in alternative accommodation."
As a result of Miss. Brennan's receipt of a copy of this letter there was a risk that the limitation period would begin to run against her in respect of earlier exposure to gas fumes.
There are two actions. I am only directly concerned with the 1 st action which is against Bolt Burdon, solicitors whom she consulted in July 1993, the 1 st defendants, Islington Council, the 2 nd defendants, and Leigh Day, whom she consulted in about October 1995, the 3 rd defendants.
Leigh Day instructed a Mr Shannon, a boiler expert who inspected Miss. Brennan's flat on the 15 th November 1995. He reported (See page 255)
"In our opinion noxious flue gas, produced by the combustion of Natural Gas in the boiler, has been entering the premises.
The incorrect positioning of the Balanced Flue Terminal, in a recess of the building, and less than 600mm from a re entrant corner of the building has resulted in an inability of the discharge flue gas to be effectively discharged and diluted by surrounding external air.
As a result the loss of room seal, due to poor or inadequate Maintenance to rectify a missing "butterfly nut" and defective sealing strip to serve the casing, this air and wind pressure has been able to force noxious flue gas into the kitchen and lounge.
Such combination of defects cannot other than have resulted in the "Occupier" being exposed to considerable volumes of noxious flue gas."
On the 15 th November 1995 Mr Shannon shut down the boiler declaring it unsafe.
In November 1995 Leigh Day instructed Counsel who advised that Mrs Brennan's claim was substantially time-barred. Leigh Day explained to her (see page 282).
"As Mr Ramsden has stated, there may well be a claim for continuing loss but the chances of success in such an action are less than 50%. This would not be sufficient to satisfy the Legal Aid Board.
I confirm that Mr. Ramsden had not had sight of Mr. Shannon's report prior to producing his advice, as his advice was required as a matter of urgency. I do not think it likely that Mr. Ramsden's advice would have changed in the light of Mr. Shannon's report"
For reasons given in their letter to her Leigh Day ceased to act for her (See page 276) in the middle of February 1996 when she consulted Procaccini Farrell who were to become the 3 rd defendants in the 2 nd action.
Procaccini Farrell instructed an Environmental Health Officer who inspected the flat on the 4 th June 1996 who reported (see page 287)
"Conclusion and Recommendations.
Repair.
The property has had no heating or hot water since the gas central heating boiler was considered unsafe and switched off under the Gas Safety (Installation and Use) Regulations 1994. I consider the flat to be unfit because of the lack of piped hot water supply to the bath, wash hand basin and kitchen sink.
In order to bring the property up to a reasonable standard the following work should be carried out.
1. The central heating boiler should be repaired or renewed tested and left safe for use by a suitably qualified engineer.
2. Repair to the kitchen window and bathroom plaster work should be carried out.
In my opinion.
The dwelling is unfit for human habitation having regard to sec 604 of the Housing Act 1985 in respect of a lack of hot water system to the kitchen and bathroom.
The landlord is failing in the repairing obligations implied into the tenancy by Sec 11 of the Landlord and Tenant Act 1985.
The Landlord is failing in the duty of care imposed by Sec 4 of the Defective Premises Act 1972"
Both this report and Mr Shannon's report were sent to the Council on the 9 th August 1996
On the 13 th August 1996 a gas-fitter on behalf of the Council re-connected the boiler and pronounced it now healthy and sound (see page 295). It remained operational emitting noxious flue gas until the 16 th October 1998 when Mr Shannon on a second inspection shut it down again. He reported (See page 311).
"The "Landlord" their servant(s) or agent(s) have failed to rectify the serious and dangerous defects with the boiler and it's installation since our previous investigation on 15 th November 1995.
They have also failed, as far as we are...
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