Dean v Ainley
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE GLIDEWELL,LORD JUSTICE KERR,SIR GEORGE WALLER |
| Judgment Date | 14 July 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J0714-8 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 87/0737 |
| Date | 14 July 1987 |
[1987] EWCA Civ J0714-8
Lord Justice Kerr
Lord Justice Glidewell
and
Sir George Waller
87/0737
1985 A No. 06332
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. JUSTICE MANN)
Royal Courts of Justice
MR. PATRICK McCAHILL (instructed by Messrs. Gately Wareing & Co., Solicitors, Birmingham B4. 6DD) appeared on behalf of the Plaintiff (Appellant).
MR. FREDERICK PHILPOTT (instructed by Messrs. Dean Jordan & Co., Solicitors, Worksop, Nottinghamshire, S80 1HU) appeared on behalf of the Defendant (Respondent).
This is an appeal against a judgment of Mr. Justice Mann, given on 28th January 1987 at Birmingham. In the plaintiff's action for damages for breach of a condition contained in a contract for the sale by the defendant to the plaintiff of a house, the learned judge held that the defendant was in breach of the condition, but that the plaintiff had not proved that he had suffered more than nominal damage as a result of the breach. Accordingly the judge gave judgment for the plaintiff for the sum of £5, and made no order as to the costs. The plaintiff now appeals against that decision. There is no cross-appeal by the defendant against the judge's findings that she was in breach of contract.
The house in question is The Hoploft, Eardiston, Tenbury Wells, Worcestershire. It is the central part of a large building, originally constructed in the 18th century, which has been converted into three dwelling houses. It stands on the side of a hill. The front of the house faces south. Behind,i.e. to the north of the house, at the same level as the ground floor, is a windowless vault, referred to throughout the proceedings as "the cellar". It lies east-west across the whole rear elevation of the house, built of brick with a barrel vaulted roof, some 74 feet long by 10 feet wide and about 8 feet in height at the crown of the arch. The southerly wall of the cellar is separated from the northerly wall of the house by a short distance. There is a door in the east end of the cellar which gives access from the house.
At some time in the past the area to the north of the ground floor of the house was filled with material which thus wholly encloses the cellar. On top of this fill there is a terrace or patio at the same level as the first floor of the house. This extends outwards for some 25 feet or so, and at its northern edge the ground rises again. The main entrance door to the house leads from the patio. Approximately the southerly half of the patio lies above the cellar. The patio is divided into two parts by a low wall. The smaller, easterly part was at all material times covered with quarry tiles over which a layer of ashphalt had been laid. The western part of the patio was constructed of rectangular flagstones. There are two drain gullies to take surface water run off from the patio, and the judge found that the falls to the gullies were properly laid. It is obvious, however, that water could seep through the joints between the flagstones.
In 1982 the defendant, Mrs. Ainley, owned The Hoploft, and lived there with her late husband, who had until his retirement been a director of a major civil engineering company. The plaintiff, Mr. Dean, became interested in buying the property. On visits to the property he saw several indications of defects, including buckets in the cellar placed to catch water percolating through the brickwork. He instructed a consulting engineer, who advised him that the water was penetrating the brickwork both vertically (i.e. from the terrace above) and laterally (i.e. from the fill material to the north of the cellar). According to Mr. Dean, Mr. Ainley said that he would have the problem of water penetrating the cellar remedied. Later, in the early part of 1983, Mr. Ainley told Mr. Dean that over the western part of the patio the flagstones had been lifted, a plastic membrane and an ashphalt layer laid on a concrete base and the flagstones relaid.
Nevertheless, the plaintiff required a specific term in the contract of sale of the house obliging the defendant to rectify three defects, of which the water penetrating the cellar was the third. Special Condition G provided, so far as is material:
"The vendor will at her own expense prior to completion hereunder complete to the reasonable satisfaction of the Purchaser or his surveyor the following works:
……………………………………………
(c) Prevention of leaking of water from the patio into the premises beneath."
Before the contract was exchanged Mrs. Ainley's solicitor wrote to Mr. Dean's solicitors on 1st February 1983 a letter in which he said,
"As to the works to the property listed in Special Condition G of the enclosed draft, my client informs me that all these works have now been carried out but I have included them in the draft contract so as to reflect the terms agreed between our respective clients".
This confirmed what Mr. Ainley had told Mr. Dean. Parts of the contract were exchanged on 17th March 1983.
In reliance on those assurances, Mr. Dean completed the purchase of The Hoploft, which was conveyed to him by Mrs. Ainley on 23rd April 1983.
In the autumn of 1983 it became apparent that water was again penetrating into the cellar through the brickwork. On investigation it became clear that, though there was ashphalting and a plastic membrane covering some of the western part of the patio, over much of that part no work to prevent water leaking from the patio into the cellar had been carried out. Why Mr. Ainley told Mr. Dean the work had been done will remain unknown because sadly Mr. Ainley died before the matter was investigated. Clearly, as the judge found, Mrs. Ainley was in breach of condition G of the contract of sale. Specific performance of the condition was not possible because by the time the breach was discovered the property had been conveyed to Mr. Dean, who had been in occupation for some months.
The questions therefore arose, what damage did Mr. Dean suffer as a result of the breach of contract, and to what sum was he entitled by way of damages?
The writ in this action was issued on 1st July 1985. The statement of claim originally served pleaded condition G, alleged breach and claimed as damages the "estimated cost of works necessary to prevent leaking of water from patio to cellar" at not less than £10,000. However, the chartered surveyor engaged by Mr. Dean, Mr. David Gould, advised that if works of the nature of those described by Mr. Ainley were carried out, though the patio would be "waterproofed", and water would no longer be able to enter the cellar vertically, water would still be able to penetrate horizontally through the surrounding ground. Accordingly Mr. Gould suggested that the best solution would be to construct a waterproof envelope around the cellar, either outside or inside the brickwork, which would keep out all water. In the end his preferred solution was internal "tanking", a view with which Mr. Andrew Shepherd R.I.B.A., who gave evidence for Mrs. Ainley, concurred.
On 1st May 1986 the statement of claim was amended. After amendment, the particulars of special damage read:
"The only remedial measure which can be carried out has to be designed on the principle that the whole of the cellar is to be enclosed in a waterproof envelope, either externally or internally or a combination of both. Estimated cost (as at October 1984) £11,152.70p. inclusive of VAT"
At the trial, at which both Mr. Gould and Mr. Shepherd gave evidence, they agreed that it would not be sensible to seal or waterproof the patio, and that the proper solution to the problem of water penetration into the cellar was internal tanking.
The witnesses differed, however, as to the respective proportions of horizontal and vertical water penetration. Mr. Gould's opinion was that 60%—70% of the water penetrated vertically (and thus would be prevented by sealing the patio). Mr. Shepherd's view was that only 30% was vertical penetration, and 70% lateral penetration by ground water. The judge was not satisfied that Mr. Gould's opinion in this respect was correct. He found "the percentage contribution of ground water moving laterally" to be higher than 30% of the total.
On the question, "What damage has the plaintiff proved he has suffered?" the judge said:
"The onus of proving that he has sustained more than nominal damage in consequence of the breach of contract rests upon the plaintiff.
I ask what damage has the plaintiff shown that he has suffered by reason of the defendant's failure to prevent penetration from the patio? I am not satisfied that on the balance of probabilities he has shown any damage. Not one word has been heard as to the extent to which the tunnel would have been usable for any purpose had the patio been sealed.
All I do know is that all the experts agree that sealing would not have been an answer to the problem of the tunnel. To say 30 percent only of intrusion is due to ground water movement tells me nothing, in that intrusion was not quantified. It could still be unusable for any purpose desired by the plaintiff".
The finding that the proportion was greater than 30% then followed.
The learned judge did not in his judgment refer to any authorities, but counsel referred us to three. The first was the decision of this court in James v. Hutton and Cook (1950) 1 King's Bench 9.
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