King v Liverpool City Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NICHOLLS,LORD JUSTICE PURCHAS |
| Judgment Date | 18 February 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J0218-10 |
| Docket Number | 86/0455 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 February 1986 |
[1986] EWCA Civ J0218-10
Lord Justice Purchas
Lord Justice Nicholls
and
Mr. Justice Caulfield
86/0455
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE LIVERPOOL COUNTY COURT
(His Honour Judge Sachs)
Royal Courts of Justice
MR. DAVID MARSHALL EVANS, Q.C. and MR. GRAHAM WOOD (instructed by Vauxhall Community Law Centre, Liverpool) appeared on behalf of the Appellant/Plaintiff.
MR. JOHN WILLIAM KAY, Q.C. and MR. WILLIAM BRAITHWAITE instructed by the City Solicitor to Liverpool City Council) appeared on behalf of the Respondent/Defendant.
This is an appeal by Mary King, the plaintiff, from a judgment of His Honour Judge Sachs given at the Liverpool County Court on 8th January 1985. The learned judge dismissed the plaintiff's claim against the respondents, the Liverpool City Council ("the Council") for damage caused to her property by water escaping from a flat owned by the Council. The plaintiff was a tenant of a neighbouring flat owned by them. The premises were at 16 Great Mersey Street, Liverpool. The plaintiff's flat was No. 16 and immediately above it was flat 16a which, at the material time, was vacant but for which the Council were responsible.
The short facts leading up to this matter are as follows. The plaintiff, first under a joint tenancy and later, after her divorce, as sole tenant, had been in Flat 16 since 1978. At the end of August 1982 the tenants of Flat 16a left the premises and on 2nd September, the plaintiff noticing that the flat above was unoccupied and not protected in any way against trespassers or vandals, telephoned the appropriate department of the Council to this effect. That message was received and passed to the appropriate department, the depot at Shaw Street, Liverpool, where it was recorded and various steps were taken which, in the event, were not successful.
Between 10th and 12th September 1982 vandals entered Flat 16a and removed copper piping and other parts of the water supply equipment in that flat. In the result water escaped from the damaged system and flooded the plaintiff's premises. The Council sent a plumber who did some repair work, but again the flat was not boarded up either by plywood or, as is sometimes done, with metal sheeting.
Two days later on 14th September 1982 there was another flood and this was sufficiently serious to cause the plaintiff, understandably, to leave the flat. It appears very probable that that again was as a result of vandals invading Flat 16a. Thereafter the plaintiff lived with her sister until December 1982, when she was rehoused by the Council.
In the meanwhile there had been a third flood, which appears to have occurred again probably as a result of invasion by vandals between 16th and 17th September 1982.
Those are the facts, about which there is no dispute. Work records etc. were produced by the Council, indicating that boarding or sheeting work had been carried out to Flat 16a, although that was not seen by the plaintiff on her visits, and it was accepted by witnesses for the Council that it was not certain that the sheeting work had been completed or effectively done. But their records certainly indicated that steps had been taken to that end.
The plaintiff brought an action in the Liverpool County Court in June 1983. She alleged negligence against the Council in the first instance and the Council counterclaimed for arrears of rent. Later, in February 1984, her particulars of claim were amended. Then the plaintiff alleged a breach of covenant for the quiet enjoyment of her flat (she was, of course, a tenant of the Council); alternatively negligence, which was her original cause of action; or alternatively nuisance. The claim for breach of covenant was abandoned at the trial below, but the plaintiff continued her claim in nuisance and negligence.
The facts material to this appeal, as found by the judge, can be shortly summarised. It was accepted that the reason for the plaintiff's request, although not necessarily the same as the motive for the defendants' action "was that unhappily, as in many areas of Liverpool, vandals readily discover that premises have been vacated, quickly descend on them and cause substantial damage. From documents supplied by the defendants housing department there is a card relating to 16a Great Mersey Street which shows that on the 2nd September a request for two sorts of work to be undertaken, (1) to sheet up and (2) to remove services." The learned judge listened to a considerable body of evidence from, amongst others, the Superintendent of the Shaw Street Depot and the Assistant District Housing Manager.
The Superintendent of the Shaw Street Depot, Mr. Peter Gibney said this in evidence:
"I know hundreds of tenants suffer from vandal damage. We sheet up and remove services. I know they have a rising main in a vulnerable position. We do not go looking for work. We used plywood albeit ineffective because we are told to. It looks like a burst on rising main [that is referring to the events in Flat 16a]. Rising main would be made out of copper, basically the vandals go for the cylinder—sometimes for the rising main. There is a stop tap for each flat—can't remove pipe—would affect [occupants of the other flats]."
The evidence of Stephen Alan Guy, the Assistant District Housing Manager, was much to the same effect:
"Sheeting up regarded as urgent—accepted by both departments as such. Wouldn't expect 10/12 days to elapse. Many properties are not sheeted up—works department slow or not reported.
If properties not boarded up—vandals would get to know in short time. Services would be interfered with in unprotected premises. No steps taken apart from boarding up and remove rubbish."
Then, in relation to flooding:
"Three floods uncommon—normally one. Local Authority can remove services and secure premises. Particularly vulnerable if attacked once because not sheeted up."
Then in re-examination—a finding upon which the learned judge relied—he said:
"No guarantee sheeting up will stop vandals. Sheet steel is the answer. Quite often vandals get to know premises vacant within day or so."
The learned judge's findings on this evidence are recorded in the notes of his judgment in these terms:
"Further evidence was called by the defendants being the evidence of Mr. Guy the Assistant District Housing °Manager. His is an administrative post and he explained the procedures to which I have referred. He accepted that at the time there would be no record sent to his Department that completion of the work had taken place. He agreed that unprotected premises would be likely to be the victims of vandals. He also told me that there was no guarantee that sheeting up would stop the vandals, although he would be more optimistic if steel sheeting was used and he accepted that vandals get to know of vacant premises within a day or so of them becoming vacant.
I have to find as a matter of fact what occurred in respect of these vacated premises. I accept the evidence of the Plaintiff bearing in mind that I find facts on a balance of probabilities. I accept she informed the department of the various events that there were the three floods in the sequence to which she refers and that certainly whenever she went to look at the flat 16a there was no sign of boarding up. If therefore boarding up was done (of which I am not persuaded) clearly it was ineffective as it was never observed by the Plaintiff. I have no reason to doubt either her description of the floods that occurred or the damage done.
Equally I accept the evidence called by the defendants that it is impossible to turn off the rising main supply of drinking water without affecting other tenant. I also accept that damage done to the flat 16a was damage done by vandals."
The learned judge's finding on nuisance was in the following terms. Having referred to the judgment of Lord Wright in Sedleigh—Denfield v. O'Callaghan [1940] A.C.904, he said:
"The facts that I find are that regrettably boarding up is ineffective and further it is not possible to block off the rising main for the reasons I have given. I do not find therefore the defendants in this case have adopted or continued a nuisance. Regrettably in the circumstances I find that it is not possible for effective steps to be taken in a situation like this which could defeat the activities of vandals.
I find on the evidence of the Plaintiff that following the first flood a plumber did come to visit the premises.
As the case is pleaded the Plaintiff maintains that the nuisance was created by the failure to board up as opposed to the failure to rectify the plumbing. For these reasons I am satisfied that the defendants abated the situation by sending the plumber and did all that they could in that respect for the reasons I have given. Counsel for the plaintiff sought to say that the nuisance was not an escape of water but the condition of the premises. I was unpersuaded by the argument and found it of no significance."
As regards the claim in negligence, the learned judge based his finding on passages from the judgments in the case of Perl (Exporters) Ltd. v. Camden London Borough Council [1984] 1 Q.B.342 and in particular an extract from the judgment of Lord Justice Waller, dealing with liability for the acts of third parties. At page 349 F he said:
"But no case has been cited to us where a party has been held liable for the acts of third party when there was no element of control over the third party. While I do not take the view there can never be such a case I do take the view that the...
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