Essex County Council v Joanne Davies & 8 Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Saini |
| Judgment Date | 12 December 2019 |
| Neutral Citation | [2019] EWHC 3443 (QB) |
| Date | 12 December 2019 |
| Docket Number | Case No: QA-2019-000035 AND QA-2019-000044 |
| Court | Queen's Bench Division |
[2019] EWHC 3443 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Saini
Case No: QA-2019-000035 AND QA-2019-000044
Craig Carr (instructed by Essex Legal Services) for Essex County Council and The Governing Body of Sawyers Hall College
Adam Chambers (instructed by Weightmans LLP) for Havering College of Further and Higher Education
Catherine Foster (instructed by Slater and Gordon) for the Respondents
Hearing dates: 5 December 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment is divided into 7 sections as follows:
I. Overview: paras [1–6]
I. Overview
This is an appeal against a number of orders made by His Honour Judge Roberts (“the Judge”) consequent upon his judgment (“the Judgment”) in favour of the Respondents in respect of their claims for injuries arising out of carbon monoxide poisoning.
These injuries were suffered by the Respondents when employed on the premises of the Second Appellant (“the College”), the tenant of Sawyers Hall Lane Campus in Brentwood, Essex (“the Premises”). The Third Appellant (“the Governing Body”) was the landlord of the Premises until 31 August 2012 and the First Appellant (“Essex CC”) was the landlord of the premises from that date onwards. The Judge held all three Appellants liable to the Respondents for damages.
The main issue of law which arises on appeal is the scope of the well-known, but controversial, principle in Cavalier v Pope [1906] AC 428 (HL) which was itself drawn by the House of Lords from the earlier statement of Erle C.J in Robbins v Jones (1863) 15 C.B. (N.S):
“A landlord who lets a house in a dangerous state is not liable to the tenant's customers or guests for accidents happening during the term: for, fraud apart, there is no law against letting a tumble-down house, and the tenant's remedy is upon his contract if any.”
The Judgment was delivered on 13 December 2018 in the Central London County Court following a lengthy, hard fought and substantial trial at which the Appellants contested all issues of liability and quantum. The Judge heard extensive factual and expert evidence. The complexity of the claim is evidenced by the fact that the impressive and comprehensive Judgment numbers well in excess of 100 pages and nearly 500 numbered paragraphs (not to mention appendices).
The Judge decided that the principle in Cavalier v Pope did not stand in the way of the Respondents succeeding in their claim under the Occupiers Liability Act 1957 (“the 1957 Act”) against the two landlords, Essex CC and the Governing Body who he found to be “occupiers” for the purposes of the Act. The Judge distinguished Cavalier v Pope and the main issue before me is whether he was right to do so. I will call this the “ Cavalier v Pope Appeal”. The College (the tenant of the Premises) does not appeal against the Judge's finding that it was liable as an occupier under the 1957 Act. So, whatever the outcome of the appeal the College will be liable to the Respondents for damages.
There are two additional issues on the appeal. First, the Appellants each argue that the awards of general damages were excessive (“the Damages Appeal”). Second, they argue that the Judge erred in awarding the Respondents interest on costs at the rate of 10% above the base rate under CPR 36.17(4)(c) (“the Interest on Costs Appeal”). The reasons for that award were given in a consequential issues judgment dated 13 December 2018 (“the Supplemental Judgment”).
II. The Facts
The Respondents claimed damages for exposure to carbon monoxide at their workplace. They were all members of staff employed by the College (lessee) at The Lanes Health and Beauty College in Essex, situated on the first and second floor of building 4 at Sawyers Hall Lane Campus.
The Governing Body owned the freehold to the entirety of Sawyers Hall until 31 August 2012 and operated a grant-maintained school at the remaining parts of the building not demised to the College and third parties. On 1 September 2012, Essex CC, as the Local Authority, took over the freehold, the operation of the school, and the College's lease.
The Premises was heated by a boiler located in the boiler room below which was not part of the leased property. In respect of the Premises, the College was at all material times in occupation as tenant.
In broad terms, the Respondents alleged that, for the purposes of the 1957 Act, all three Appellants were occupiers of the Premises throughout the Period of exposure. At trial, it was common ground between the Apellants that:
(a) As landlords of demised premises, the Governing Body and subsequently Essex CC were not occupiers of the Premises and did not owe a statutory duty under the 1957 Act to the College (the tenant) or visitors of the College
(b) The College, as tenant, was the occupier of the Premises.
(c) The Respondents were employees and visitors of the College.
The Judge rejected these contentions. As well as finding that the College was an occupier, which was accepted by all, he found that the Governing Body was an occupier until 31 August 2012 and that Essex CC was an occupier of the Premises before and after that date. These findings against Essex CC and the Governing Body give rise to the Cavalier v Pope Appeal.
On 20 November 2012 the flue to the boiler suffered a catastrophic blockage resulting in the escape of very high levels of carbon monoxide. In issue at trial was whether, as contended by the Appellants, the blockage of the flue to the boiler and escape of carbon monoxide was an acute event limited to 20 November 2012 or, as contended by the Respondents, there had been a gradual blockage and carbon monoxide leak from late 2010 causing them to suffer personal injury.
The Judge accepted the lay and expert evidence (both medical and engineering) adduced by the Respondents. He found that there had been a carbon monoxide leak over a period of two years. There is no appeal against those findings of fact.
The Judge went on to find all three Appellants in breach of their duty under the 1957 Act and the College was additionally found in breach of the duties it owed to the Respondents as employer.
The Respondents were awarded sums of General Damages ranging from £7,000 to £15,000, generally in accordance with the length of exposure (£15,000 representing exposure over a period of a little over two years). Those awards give rise to the Damages Appeal to which I have made reference above.
Six of the Respondents were awarded damages exceeding Part 36 offers they had made to Essex CC and the College. Pursuant to CPR36.17(4) they were awarded (1) an additional 10% on damages (2) interest on damages at 10% above base rate (3) costs on an indemnity basis and (4) interest on costs at 10% above base rate. This specific award of interest on costs gives rise to the Interest on Costs Appeal.
III. The Cavalier v Pope Appeal
Before turning to consider the issues argued before me in more detail, it is appropriate to identify the shape of the Respondents' case based on the pleadings below. It was common ground that the sole cause of action being pursued against the First and Third Appellants was based on the 1957 Act and a breach of the duty owed to visitors under that Act. Specifically, the Appellants pleaded that each of the Respondents was an occupier of the Premises and that they, the Claimants, were visitors to the Premises. The First Appellant (Essex CC) and Third Appellant (the Governing Body) pleaded that they were simply landlords (at different times) of the Premises and were not “occupiers” owing the material duties under the 1957 Act.
I pause here to emphasise that there was no case pleaded by the Respondents that there were other duties owed by the First and Third Appellants to the Respondents such as for example under common law negligence or the Defective Premises Act 1972.
The first issue which arose was accordingly whether Essex CC and the Governing Body were occupiers for the purposes of the 1957 Act. If they were not that would be an end of the case against them without more.
The Judge addressed this question in some detail and I have quoted this part of the Judgment at length because submissions were made to me about various aspects of the reasoning and the Respondents have rightly focussed on the fact that the Judge made important findings of fact which are not in issue on the appeal. It is also only fair to set out fully how the Judge arrived at his conclusions in what was clearly a carefully prepared judgment.
The Judge's reasons were as follows:
“ First and Third Defendants' case
145. In the Amended Defence of the First and Third Defendants it is alleged at paragraphs 2c-d,
“c It is denied that the First Defendant owed the Claimants any duty, whether statutory, at common law or otherwise, prior to the transfer in (sic) 31.8.2012. Any claim on such basis is denied.
d It is denied that after 31.8.12 the First Defendant, and prior to 31.8.12 the Third Defendant, qua landlord/owner, owned the Claimants any common law duty or any duty pursuant to the Occupiers' Liability Act 1957:
A Landlord is not an Occupier. The Occupiers for the purposes of the Act was the tenant(s) of the premises.
The various Claimants were not invited to the premises by the First Defendant.
A Landlord is not liable, at common law, for negligent nonfeasance.”
146. The First Defendant's case is that they could have no...
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