Greene v Chelsea Borough Council

JurisdictionEngland & Wales
JudgeLORD JUSTICE SINGLETON,LORD JUSTICE DENNING,LORD JUSTICE MORRIS
Judgment Date30 April 1954
Judgment citation (vLex)[1954] EWCA Civ J0430-2
Docket Number1952 G. NO. 2091.
CourtCourt of Appeal
Date30 April 1954

[1954] EWCA Civ J0430-2

In the Supreme Court of Judicature,

Court of Appeal.

Before:

Lord Justice Singleton,

Lord Justice Denning, and

Lord Justice Morris.

1952 G. NO. 2091.
Greene
and
Metropolitan Borough of Chelsea.

Counsel for the Appellants: MR R. MARVEN EVERETT. Q.C., and SIR SHIRLEY WORTHIHGTON-EVANS, instructed by Messrs William Charles Crocker.

Counsel for the Respondent: MR T.G. FIELD-FISHER, instructed by Messrs Pennington & Son.

LORD JUSTICE SINGLETON
1

This is an appeal from a judgment of Mr Justice Cassels given upon the 28th January of this year. He had before him the claim of Mrs Mary Greene for damages for personal injuries which she alleged were caused through the negligence of the Defendants. She was the wife of one Joseph Greene, who was a Plaintiff with her in the action, but who died before it came on for trial. The action was treated as her action alone.

2

The Defendants are the Metropolitan Borough of Chelsea. They are the Requisitioning Authority for the Borough of Chelsea, and, as many other Local Authorities did, they exercised their powers of requisitioning property so that they could find homes and accommodation for people who otherwise would not have had homes. Mr and Mrs Groone had put in an Application to the Borough of Chelsea for housing accommodation in the year 1947, and in the form which was signed by Mr Greene particulars of his family were given. There was a further set of Particulars given later, as I must point out. On the 7th March, 1949, the Property Manager for the Defendants wrote a letter addressed to Mr Greene: "Dear Sir/Madam, With reference to your application for housing accommodation, the Council can now offer you:-3rd and 4th floors, 28, Elm Park Gardens. Will you please call here between 9.30 a.m. and 4.30 p.m. (excepting Saturday) for the key to view and bring this letter with you. I should be glad to hear from you immediately whether you wish to accept this offer which can, in any case, only remain open for three days from this date"; thereafter an assessment form, which, I suppose, is a necessary part of the administrative procedure, was filled up and supplied to the Defendants. It is dated the 9th March, 1949. It gives the address and the position in the house of the rooms, the third and fourth floors; name of the householder,and the names and ages of those for whom the accommodation is required: Mr Greene, Mary Greene, the Plaintiff, Christopher, who was then 15 years old and an apprentice bootmaker earning £1, 7s. 0d. a week, or 18s. 0d. net income, and a girl of 13, and John, a boy of eight. The total income of the family is shown to be £5. 18s. 0d., and at the foot of the form there appear these words: "I declare that the foregoing particulars of my family circumstances are true and that any change will be notified at once to the Housing Manager. Signed on behalf of J. Greene, Mary Greene (Wife)."

3

At odd times thereafter there was correspondence between the Property Manager and Mrs Greene. Mrs Greene said that she wanted ground-floor accommodation because of heart trouble, and the Property Manager wrote to her on one or two occasions. I do not think that there is great importance in the fact that correspondence took place with her.

4

Following upon the assessment form which was completed on the 9th March, 1949, Mr and Mrs Greene and the family of three children were allowed into the rooms or that part of 28, Elm Park Gardens, which constitutes the third and fourth floors. That was thought by the Housing or Requisitioning Authority to be suitable accommodation for the family consisting of the persons named, and the amount which was to be paid for the accommodation was, according to the practice of the Corporation, one-fifth of the total family income; namely, 26s, 3d. a week; and at or about the time the family went into this part of the house, an agreement was drawn up and was signed by Mr Greene. It is headed: "Metropolitan Borough of Chelsea. An Agreement made the 6th day of April 1949 between the Council of the Metropolitan Brough of Chelsea(hereinafter called 'the Jouncil') acting by John Clark Kitchin the Town Clork of the one part and Joseph Greene, Greengrocers' Handyman (hereinafter called 'the Occupier') of the other part", and there is a recital: "Whereas the use of the promises known as 28, Elm Park Gardens, for certain emergency purposes is, as the result of action taken under Regulation 51 of the Defence (General) Regulations, 1939, under the control and management of the Council." It was agreed that: "1. In consideration of the payments by the occupier hereinafter mentioned and of the conditions hereinafter contained, on the part of the occupier to be observed the Council hereby gives its licence and authority for the occupier to occupy the front middle and back rooms and W. C. on the third floor, front and middle rooms on the fourth floor and to use the second floor bathroom and basement back room from the 21st day of March 1949 until such occupation is determined in manner hereinafter provided."

5

The agreement contained two other clause which I ought to mention. Clause 4: "The occupier will permit the Council or its officers or agents at all reasonable times of the day to enter into and upon the said premises and to examine the state and condition thereof and to effect any repairs which the Council may consider necessary."

6

Clause 7: "Nothing in this agreement contained shall authorise the occupier to continue in occupation of the premises after the use of the premises has ceased to be under the control and management of the Council under emergency powers."

7

Thus we are dealing with a case in which the Local Authority requisitioned a house and allotted the use of part of that house to Mr Greens, as it is said by the Defendants, or to Mr Greene and the members of his family,as it is said by and on behalf of the Plaintiff.

8

On some date in May, 1951, it was noticed by Mrs Greene that there was a crack in the ceiling of the back room on the third floor, which was her kitchen, She reported that to the rent collector when he called for what is spoken of as the rent. She said that about a wock after she reported it two men from the Council came in and inspected the ceiling. They took the handle of a brush and wont round the ceiling to best it. They went round and tapped the ceiling, and as they were going round they said: "All right", as though speaking to themselves. She was asked further: "They said what? (A) It was all right. Whether they meant the ceiling or not I do not know, but they just said that it was all right as they were going out." That was May of 1951.

9

On the 3rd December, 1951, nothing further had been done by the Defendants to that ceiling. Mrs Greene had described it as having a large crack in it, and that it was bulging. She was not asked many questions upon this matter in cross-examination. Obviously, it was something which she thought she ought to point out. In view of the fact that the Defendants had retained the right to do, and the duty of doing, repairs on the promises she pointed out to them the state of the ceiling. No one did anything. On Monday the 3rd December, 1951, she was in her kitchen getting the tea, and, as she said, the ceiling came right down — not the whole part of it, but actually more than a quarter of the ceiling came down without any warning. She was hurt, and she brought this action against the Defendants. She alleged that there was negligence on their part. Mr Justice Cassels decided that she was entitled to succeed; he assessed the damages which she should recover at the sum of £271, being £21 agreed out-of-pocket expenses and £250 general damages, and he gavejudgment in her favour for that amount.

10

The Defendants appeal against that judgment, and we have had an interesting argument on a matter of which it can be said there is no authority directly covering the position.

11

The submission made on behalf of the Defendants is that, in the circumstances of this case, there is no liability upon them to the Plaintiff; that this case ought to be regarded in the same way as it would have been if there had been a tenancy agreement between the Defendants and Mr Greene, and that if that had been so the Plaintiff, who was no party to the contract, could not recover. For that submission Mr Marven Everett relied upon the case of Cavalier v. Pope, which is reported in 1906 Appeal Cases at page 428. The owner of a dilapidated house contracted with his tenant to repair it, but failed to do so. The tenant's wife, who lived in the house and was Well aware of the danger, was injured by an accident caused by the want of repair. It was held that the wife, being a stranger to the contract, had no claim for damages against the owner. Lord Loroburn in the course of his Speech put the case in a few words; holding that the judgment of the Court of Appeal ought to be affirmed, he said: "I can find no right of action in the wife of the tenant against the landlord cither for letting the premises in a dangerous state or for failing to repair them according to his promise. The husband has sued successfully for breach of contract, but the wife was not party to any contract. Accordingly the appeal fails."

12

Mr Everett submitted that that decision of the House of lords ought to be treated by this Court as binding in the circumstances of this case, and that we ought to allow the appeal from the judgment of Mr Justice Cassels.He submitted that it did not really matter whether the position of landlord and tenant, properly so called, existed so long as there was a contract between Mr Greene and the Borough of Chelsea; that the rights of the parties, that is, the rights of the Borough of Chelsea and the rights of Mr Greene, were to be determined by that contract, and that Mrs Greene could have no rights of any kind. His submission was that no...

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18 cases
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    ...of maintenance and repair. 30 Finally, I should record that I have not overlooked the Respondents' reliance on Greene v Chelsea BC [1954] 2 QB 127 and Rimmer v Liverpool City Council [1985] Q.B. 1. In my judgment, those cases do not support the Judge's approach and are not concerned with ......
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    ...person lawfully on the premises to take reasonable care to prevent damage". 61 In an even more recent case before this Court (Greene v. Chelsea Borough Council, 1954 2 Queen's Bench, 127), Lord Justice Singleton observed at page 137 that there was nothing to show that the Plaintiff knew th......
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