Summers v Salford Corporation
| Jurisdiction | England & Wales |
| Judge | Lord Russell of Killowen,Lord Romer,Lord Atkin |
| Judgment Date | 04 December 1942 |
| Judgment citation (vLex) | [1942] UKHL J1204-5 |
| Date | 04 December 1942 |
| Court | House of Lords |
[1942] UKHL J1204-5
House of Lords
Lord Atkin
Lord Thankerton
Lord Russell of Killowen
Lord Wright
Lord Romer
After hearing Counsel, as well on Friday the 23d, as on Monday the 26th, days of October last, upon the Petition and Appeal of Florence Summers, Married Woman, Pauper, of 23 King Edward Street, Salford 5, in the County of Lancaster, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal of the 8th of May 1941, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied, or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed case of the Mayor, Aldermen and Citizens of the City of Salford, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 8th day of May 1941, complained of in the said Appeal, be, and the same is hereby, Reversed, and that Judgment be entered for the Appellant for the sum of Two hundred and sixty pounds (£260): And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellant the Costs incurred by her in the Courts below, and also the Costs incurred by her in respect of the said Appeal to this House, the Costs in the Court of Appeal, as from the 27th day of January 1941, and in this House to be taxed in the manner usual when the Appellant sues in forma pauperis and the amount of the Costs in this House to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the King's Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.
My Lords,
This is an appeal from the Court of Appeal affirming by a majority a decision of Croom Johnson J. at Assizes at Manchester in a case where the Plaintiff claimed damages for breach of the statutory undertaking imposed by the Housing Act, 1936, on her contract of tenancy that the house would be "kept by the landlord during the tenancy in all respects reasonably fit for human habitation". The learned trial Judge found that the facts did not disclose a breach of the undertaking. The facts are not in dispute. The Plaintiff, an elderly woman aged about 64, had been for 34 years the tenant of a house in Salford at a rent of 10s. a week, a house therefore to which the provisions of the Housing Act, 1936, applied. It was an old house of two storeys with two rooms back and front on the ground floor, and two bedrooms back and front on the first floor. It does not appear of what the household consisted, but the front bedroom was occupied by an invalid daughter of the Plaintiff. In February, 1940, one of the sashcords of the top sash in the only window in the front room broke, and Plaintiff gave notice of this to the corporation rent collector, who appears to be the person authorised to receive complaints of lack of repair. Nothing was done: the window jammed when it was moved, but it appears that it was capable of being opened to some extent. On 3rd April, 1940, the Plaintiff was cleaning the window and drew it down a few inches. She placed her hand on the top of the lower sash, when, as she was cleaning the upper sash, the second cord broke and the upper sash fell, crushing her left hand as well as her right between the two sashes. She was thus imprisoned for 20 to 30 minutes before she was released. Both hands were lacerated; the left hand had to receive eight stitches. She has lost the use of her left hand, and her general health has seriously suffered. The learned Judge in the event of liability being established assessed the damages at £260, and as to this figure there is no appeal.
The case raised what is an important question to owners and tenants of houses to which the Housing Act applies, viz., the meaning and extent of the phrase "keep in all respects reasonably fit for human habitation". The test of the obligation cannot simply be whether with the disrepair complained of the tenant can live in the house. The present war has shown how ineffectual such a test may be. It must not be measured by the magnitude of the repairs required. A burst or leaking pipe, a displaced slate or tile, a stopped drain, a rotten stair tread may each of them until repair make a house unfit to live in, though each of them may be quickly and cheaply repaired. I find myself in complete agreement with the judgment of Luxmoore L.J. in the Court of Appeal, and perhaps all the more so because he relies on a dissenting judgment of my own in a similar case, ( Morgan v. Liverpool Corporation 1927, 2 K.B. 131), which I am glad to think also appears to have the approval of my noble and learned friends in the present case. I will only cite one passage from my own judgment in Morgan's case, because I know no better way of expressing my present opinion after a lapse of 15 years:
"If the state of repair of a house is such that by ordinary user damage may naturally be caused to the occupier, either in respect of personal injury to life or limb or injury to health, then the house is not in all respects reasonably fit for human habitation".
In the present case the breaking of one sashcord necessarily involved the strong probability that its fellow cord, especially with the extra strain imposed upon it, would also break, with the further certainty of danger to anyone handling the window at the time of the break: and with the further certainty that until repair that window must either remain permanently closed or permanently open. Either event would prevent that room from being reasonably fit for occupation: and as this room was one of only two bedrooms it appears to me clear that until repair the whole house would properly be described as unfit for occupation by a working class family. I accept the view that notwithstanding the provisions in s. 2 (3) of the Housing Act, 1936, that "the expression 'house' includes part of a house", disrepair to a single room will not be sufficient unless the effect of it is to render the whole house "not reasonably fit for human habitation": but I should suppose that in houses to which the Act applies it would be difficult to confine the effects to one room alone.
I wish to add that since the argument I have looked at the decision in Proudfoot v. Hart (1889), 25 Q.B.D. 42, a leading case on repairing covenants, and there I find a reference in Lord Esher's judgment to a definition by Alderson B. in Belcher v. Mackintosh (1839), 2 Moo. & R. 186, of "habitable repairs". "It is difficult to suggest any material difference between the term 'habitable repair' used in this agreement, and the more common expression 'tenantable repair'; they must both import such a state as to repair that the premises might be used and dwelt in not only with safety but with reasonable comfort, by the class of persons by whom, and for the sort of purposes for which, they were to be occupied" "That is the whole definition, says Lord Esher, and so far as it goes, it is a good one". I agree, and I am bound to say that I find it difficult to draw a distinction between an obligation to put premises into habitable repair and so deliver them up, and to keep premises in all respects fit for human habitation. Too much emphasis should not be laid upon "comfort", but taking a reasonable view of the meaning of "comfort" in the definition, it affords a useful test of liability. It is perhaps to be regretted that neither in Morgan's case nor in the present were Belcher v. Mackintosh or Proudfoot v. Hart cited. I entertain no doubt that the damage to the Plaintiff was the direct consequence of the Defendants' breach of their repairing obligation. She was engaged in a normal use of the house in respect of which there had been a failure to repair.
In the present case the point upon which the Court of Appeal in Morgan's case decided for the Defendant does not arise, viz., that notice of the lack of repair complained of must be given to the landlord before his statutory obligation arises. I can see that different considerations may arise in the case of an obligation to repair imposed in the public interest; and I think that this question must be left open, and I reserve to myself the right to reconsider my former decision if the necessity arises. In the result the judgments of Croom Johnson J. and of the Court of Appeal should be set aside and judgment entered for the Plaintiff for £260 with costs. The Plaintiff should have the ordinary costs in the Court of Appeal up to the time when the order permitting her to proceed in forma pauperis was made. After that date she should have such costs in the Court of Appeal and in this House as are appropriate to appeals proceeding in forma pauperis.
My Lords,
I have had the opportunity of considering the Opinion which has just been delivered by my noble and learned friend, and I agree with it entirely. I also desire to reserve the question whether the decision of the Court of Appeal in Morgan's case, as to the necessity of notice of the lack of repair, is correct or not.
Lord Russell of Killowen (READ BY LORD ROMER)
My Lords,
I also am of opinion that this Appeal should be allowed.
One is rather inclined to associate the idea of a house being unfit for human habitation with its being in such a condition, structurally or otherwise, as to call for demolition under the relevant provisions of the Housing Acts; and at the first blush it...
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