Mistry v Thakor
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PILL,LORD JUSTICE LLOYD,MR JUSTICE RIMER |
| Judgment Date | 05 July 2005 |
| Neutral Citation | [2005] EWCA Civ 953 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B3/2004/2312; B3/2004/2312(A) B3/2004/2324(B) |
| Date | 05 July 2005 |
[2005] EWCA Civ 953
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
NOTTINGHAM DISTRICT REGISTRY
(HIS HONOUR JUDGE INGLIS
(sitting as a deputy judge of the High Court))
Lord Justice Pill
Lord Justice Lloyd
Mr Justice Rimer
B3/2004/2312; B3/2004/2312(A)
B3/2004/2324; B3/2004/2324(A);
B3/2004/2324(B)
MR ANGUS PIPER (instructed by Messrs PI Brokerlink, London EC3R 8DZ) appeared on behalf of the Appellant First Part 20 Defendant
MISS JAYNE ADAMS (instructed by Messrs Berrymans Lace Mawer, Manchester M3 2NU) appeared on behalf of the Appellant First and Second Defendants
MR JOHN TONNA (instructed by Messrs Spearing Waite, Leicester LE1 5RB) appeared on behalf of the Respondent Claimant
Crown copyright©
This is an appeal against a judgment of His Honour Judge Inglis sitting as a deputy judge of the High Court in Nottingham on 21st October 2004. On 30th July 2000 the claimant, Mr Panesh Mistry, was walking along Belgrave Gate, a public highway in Leicester. As he passed in front of number 36/38 two pieces of concrete cladding fell from the building, struck him and caused him serious injury. A claim was brought on his behalf in nuisance. The trial before the judge was on the issue of liability only.
The judge gave judgment for the claimant on the issue of liability in the action against the first and second defendants, Mr and Mrs Thakor, who were the owners of the property. He dismissed a claim against Carphone Warehouse UK Ltd, who were previous tenants of Mr and Mrs Thakor of the building.
There were Part 20 proceedings. The judge gave judgment for Mr and Mrs Thakor on those proceedings against Mr Michael Roberts, a chartered surveyor, to the extent of 80%. They were claiming an indemnity or contribution from him.
The party who were tenants of the building when the injury occurred were not defendants. They were without assets. They had become tenants in May 2000, the tenancy of Carphone having ended in March 2000.
In this appeal Mr and Mrs Thakor seek to reverse the finding of liability against them and Mr Roberts, in the event of the claimant's judgment against Mr and Mrs Thakor standing, seeks to increase the share which they should bear of the damages.
In the appeal against the claimant it is Mr Roberts who has made the running. Mr and Mrs Thakor have associated themselves with the appeal only because it is necessary to do so because Mr Roberts was merely a Part 20 defendant. Counsel has not addressed us on that issue on behalf of Mr and Mrs Thakor.
The building was built probably in the 1960s. On the face of it, as it overlooked the highway, both at first-floor and second-floor level, there were courses of concrete facing panels, roughly 40 inches by 20 inches and weighing about 50 kilograms. They were vertical to the wall. The horizontal face provided support for them. In effect a shelf was formed on which the panels stood. The panels fell (it was common ground on the expert evidence available) due to the corrosion of fixings and the steel angle below the panel. The effect of the corrosion had pushed the bottom edges of the cladding panels away from the building. As Mr Patrick Flint, a chartered building surveyor, put it:
"The movement would obviously sever any bond with the original cement mortar bedding and the slabs that fell must have just slipped off the corroded edge of the base angle."
It was not in dispute but that the frontage of the building giving on to the public highway was in a dangerous condition. The concrete panels had become unstable and liable to fall. This was not a freak or unlikely occurrence, the judge found, it was the natural consequence of a process of deterioration. The condition of the panels at the time the accident happened would not have been materially different from their condition in the previous year. The building was unsafe and a public nuisance while Carphone were tenants, and during the subsequent period up to the accident.
Mr and Mrs Thakor owned a number of properties and employed Mr Michael Roberts as their property manager. He is an experienced property manager and chartered surveyor, his firm practising under the title "Estate agents Surveyors Property Advisors Property Management". The terms of engagement included a document headed "Outline Duties of Managing Agent". They included a duty to inspect. It is necessary only to refer to two paragraphs:
"6. Making visits to the property as necessary to deal with all management matters and to the provision of at least 2 inspections a year.
…
14. Generally to act in all respects and do all such things as could reasonably be expected of a professional manager of property of this type."
The state of the premises when the Carphone tenancy ended and that of the new tenants began was considered in detail by the expert witnesses. One of the issues in the case was whether Carphone had discharged their responsibilities as tenants. That issue was the subject of detailed discussion between Mr Michael Roberts, acting for Mr and Mrs Thakor, and Mr Nicholas, who was acting for Carphone. An issue arose in the trial as to what Mr Roberts should have observed, and what advice he should have given to Mr and Mrs Thakor. The judge accepted the evidence of Mr Clarke, who said (paragraph 31 of the judgment):
"… the defect in the cladding apparent (the bowing and also being out of vertical) coupled with observation that the joints were not all sound so that water may have got in, ought to have led to an enquiry that would have determined the state of the panels and led to the danger being uncovered. The movement observable was enough for a person in Mr Roberts' position managing the property to be concerned about the integrity of the panels. The panels had apparently moved and further investigation was warranted. The state observed should have rung alarm bells. The investigation should have been immediate."
The judge pointed out that the essence of the case against Mr Roberts was that he had failed to identify the dangerous state of the panels, failed to have the dangerous state rectified, and did not inform the Thakors of the dangerous state or the steps that needed to be taken.
The first issue to be determined is of course whether Mr and Mrs Thakor as owners and landlords are liable to the claimant, and that must be resolved before any question of contribution as between them and Mr Roberts can arise. The two issues are quite distinct, but some of the evidence bears upon both of them and I have that in mind in summarising the evidence as I do.
At paragraph 33 the judge again stated that he preferred the evidence of Mr Clarke and of Mr Smith to that of Mr Mason, an expert witness who gave evidence for Mr Roberts:
"If there was movement, then finding the cause of it was urgent, given the safety issue immediately apparent. That required appropriately expert investigation."
The judge concluded at paragraph 34:
"… I am satisfied that Mr Roberts' failure to identify possible danger from what he saw, and failure to address it, from his position as a professional property manager who was being relied upon as he was, amount to negligent breaches by him of his duty to manage the property in accordance with the obligations of his agreement. I am satisfied also that had he taken the steps he should have taken then on the balance of probabilities the problem would have been identified and dealt with so as to avoid the accident. … In any event discharging his contractual duty to the Thakors would have involved Mr Roberts in taking effective steps, or absolving himself by a clear and full explanation including a warning of risk to Mr Thakor. He did neither of those things and his breach in my view was causative of the Claimant's injuries."
The judge stated that the primary case against Mr and Mrs Thakor can best be expressed in nuisance. He referred to ways in which building owners can become liable for private damage caused by public nuisance, as occurred in this case. The judge referred to the case of Brew Brothers Ltd v Snax (Ross) Ltd [1970] 1 QB 612 as stating the principle upon which the claimant relies. That was a case where the owners must have been presumed to have known that the state of the premises at the date of the lease which they had granted was such as to constitute a nuisance. There is an issue in this case as to what the owners knew at the material time.
The main point at issue in Brew Brothers was whether the obtaining from the new tenant of a full repairing covenant discharged the owner's duty to members of the public. The principle was stated by Sachs LJ at page 636:
"On that footing, then, are the owners liable in nuisance? The tenants contend that they are liable to the plaintiffs because at the time that the owners let No. 396 to the tenants the flank wall was unstable and they ought to have known that fact. It is, of course, well-settled law that where a liability for nuisance attaches to an owner of property on account of facts within his knowledge it attaches equally if his reason for not having that knowledge was failure to use reasonable care to ascertain them (see Scrutton LJ's judgment in St Anne's Well Brewery Co v Roberts...
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Loke Yuen Jean Tak Alice v Wong Kit Ying And Another
...[1970] 1 QB 612, 638-639 and 644, Leung Tsang Hung at pp 501-502 citing Brew Brothers Ltd at pp 638-639, and Mistry v Thakor & ors [2005] EWCA Civ 953 [89] see Clerk & Lindsell on Torts 22nd ed para 20-79 at p 1425 [90] [2015] AC 106, 113 and 125-126 [91] see also Smith v Scott & ors [1973]......