Liverpool City Council v Irwin
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE ROSKILL,LORD JUSTICE ORMROD |
| Judgment Date | 22 July 1975 |
| Judgment citation (vLex) | [1975] EWCA Civ J0722-3 |
| Date | 22 July 1975 |
| Court | Court of Appeal (Civil Division) |
[1975] EWCA Civ J0722-3
The Master of the Rolls (Lord Denning)
Lord Justice Roskill and
Lord Justice Ormrod
In The Supreme Court of Judicature
Court of Appeal
Appeal of plaintiffs from order of His Honour Judge Cunliffe at Liverpool County Court on April 10th,1974.
Mr. H.E. FRANCIS, Q.C., and Mr. JOHN BOGGIS (instructed by Mr. K.M. Egan) appeared on behalf of the Appellant Plaintiffs.
Mr. GERALD GODFREY, Q.C., and Mr. D. MARSHALL EVANS (Instructed by Mr. J.L. Linden) appeared on behalf of the Respondent Defendants.
At one time the district of Everton in Liverpool was a slum. The houses were said to he unfit for human habitation. So the Corporation demolished them and built three tower blocks instead. That was in 1966. But within 18 months the conditions there became so bad that, by all accounts; these tower blocks were not fit for human habitation. They became known locally as "The Piggeries". The Corporation have done their best to make them fit, but with little success. It would seem now that these tower blocks ought to be demolished, just as some have been in the United States. The situation comes to our notice because the tenants are claiming damages from the Corporation. They say that the Corporation are in breach of the implied terms of the tenancies: and ought to recompense them for the appalling conditions in which they live.
What are these conditions? Much of it is due to hooligans and vandals. These tower blocks are fifteen storeys high. Each houses 70 families. The tower blocks are not divided into flats, but into marionettes. These were thought to be suitable for couples with young children. Each family has its own Maisonnette on two floors with an inside staircase. Each has three bedrooms along with sitting-room, kitchen, bathroom and an outside balcony. Each has its own front door opening on to a public landing. There are two lifts to serve the fifteen storeys and there is a staircase open to all of them. There is a rubbish Shute going the whole height of the building. On each public landing there is a little door through which tenants can push their rubbish into the Shute, whence it should fall and be collected at the bottom. There is a resident caretaker always on duty.
No doubt the designers of these tower blocks were very proud of them when they were built. But let me tell what has happened in practice.
First, the lifts were continually out of action. Either one orother of them, and sometimes both of them together. The Corporation Housing Officer said: "Lifts are permanently vandalized. Buttons ripped off operating panels. Lights in lifts smashed. Regularly used as public conveniences". When the lifts ire not working, people have to go up or down the staircase; but vandals constantly tike out the electric light bulbs so that the staircase is very dark. The Corporation Housing Officer said: "Lighting on staircase virtually non-existent through vandalism. Lights ripped off walls. We have tried everything". The Judge himself visited the block and put his own experiences on record:
"….I travelled to the ninth floor by lift. Half-an-hour later no lift was operating and I had to return to the ground floor by using the staircase: throughout the whole of its length there was no light… it was still daylight outside, but down the stairs it was very dark. We had to negotiate about 90 to 100 steps….by holding on to the handrail, Counsel and then I succeeded in negotiating them….but I heaved a great sigh of relief when I finally aid reach the ground level. How on earth a woman with two or three small children, and possibly laden with shopping basket, could be expected to negotiate those stairs with any degree of peace of mind baffles me; and it is not to be forgotten that these premises ire provided for the use, not of single persons, or of married couples without children, but they are family homes".
It is fair to point out that, on those two lifts, £14,024 had been spent in 18 months on repairs and getting the lifts to work: whilst the total rent roll of the premises is only about £15,000 a year. When you think of the initial capital cost, and annual outlay on lifts, repairs, maintenance, caretaker and so forth, the loss mustbe colossal.
Second, the rubbish chute frequently becomes blocked. It is about IS inches square. The tenants throw all sorts of things down it. Anything they want to get rid of, such as rolls of line and T.V. frames; and on one occasion a flock mattress, as well as the day-today rubbish. The tenants are told that "all vegetables or other refuse likely to cause a nuisance shall be burnt", but there ire no facilities for burning them in the marionettes. In order to clear the blockages, the Corporation have made holes in the walls so is to get rods in to clear the chute. These holes are then re-filled with concrete, but before the concrete gets hard, some one or other pokes out the concrete so as to keep the holes open. This meant that there were unguarded apertures on each floor which would cause anxiety for families with young children.
Third, playground, etc. Within 18 months the play facilities had been gutted or rendered unusable, the play-leader had been withdrawn because of hooligans and vandalism. They were used as a dumping ground. The drying rooms were not used by the tenants because of stealing. They were used for dumping rubbish.
Fourth, the lavatory cisterns often overflowed. They were placed in an unsuitable position. The water is carried by the overflow pipe and runs on to the balcony below and floods that dwelling. There is standing water in the passages. The tenants try to stop it by bending the arm of the ball-cock: but that means that the cistern only half fills and the lavatory does not flush properly. So the sanitation is bid. If one of the marionettes happens to be unoccupied, vandals break in and steal part of the water system, thus precipitating a deluge in the dwelling below. The Judge said that this dwelling "although on the ninth floor, suffered substantially from damp. Imyself saw evidence of this". Owing to the damp, electric fittings have come away from the ceiling and become dangerous.
Fifth. On several occasions water supply for both drinking and sanitation had failed — for as long as a weekend on some occasions.
The Judge summed up the position in these words: "I run appalled by the general condition of the property and it astonished me that a city such as Liverpool could expect that tenants would live in and put up with conditions such as I saw….I ought to draw attention to the fact that there was a considerable number of unoccupied properties in this block of buildings, which were apparently protected only by having corrugated sheets of iron put over the windows….what a depressing appearance".
Such being the general picture, I turn to the particular facts of this case. Mr. Irwin is a crane driver. He went into this property or 11th July 1966, 8 years ago, when it was new. He was in Maisonnette No. 50 on the ninth floor. He was only paying a very low rent — £3. 1s. 10d. a week, inclusive of rates. He was issued with a form headed "conditions of Tenancy". It contained ill sorts of things which the tenant was to do, or not to do. There were long paragraphs headed: "The tenant Shall Not" and "The Tenant Shall". But, there was not a single word is to anything the Corporation was to do or not to do
After eight years, by way of protest, Mr. Irwin stopped paying the rent. The Corporation took proceedings for possession and got an order. The tenant counterclaimed for damages (a) for broach of the covenant for quiet enjoyment and (b) for breach of duty to repair. The Judge found in his favour and awarded nominal damages of £10. The Corporation appeal to this Court.
We are told that this is a test case. If that decision of the Judge is right, I can well see that all the tenants will make claims for the gross discomfort and inconvenience which they suffer. They willnot recover merely nominal damages. They will recover high damages which will offset their rents for years to come. The rent of this dwelling — £3 a week for a crane-driver — was small indeed. There should be a limit to what he cm claim for it. Collectively all the tenants must bear some responsibility for the appalling conditions. Singly they ought not to be able to claim damages for it, at any rate, not if the Corporation do the best they can with the resources available to them. But, still, we must consider the legal position.
COVENANT FOR QUIET ENJOYMENT
Mr. Godfrey for the tenant conceded that there was no breach by the landlords of the implied covenant for quiet enjoyment. He was quit right to make that concession. This covenant extends, I think, so is to protect the tenant in his possession and enjoyment of the demised premises from any invasion or interruption or disturbance of it by the landlord or those claiming through him, Browne v. Flower (1911) 1 Ch. 219: Kenny v. Preen (1963) 1 Q.B. 499. But here there was nothing done by the landlord which amounted to an invasion, interruption or disturbance of the tenant. Failure to repair the demised premises, or the common parts, cannot be said to be a breach of the covenant for quiet enjoyment.
OBLIGATION TO REPAIR THE MAISONETTE ITSELF
The Corporation were not under any duty at common law to repair the Maisonnette itself. But they were under a statutory duty by section 32 of the Housing Act 1961, which says that there is an implied covenant by the lesser:
"(a) to keep in repair the structure and exterior of the promises (including drains, gutters and external pipes: and
(b) to keep in repair and proper working order the...
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