Tanya Grand v Param Gill
| Jurisdiction | England & Wales |
| Judge | Lord Justice Rimer,Lord Justice Lloyd,Lord Justice Thomas,Lord Justice Patten,Lord Justice Stanley Burnton,Lord Justice Rix |
| Judgment Date | 19 May 2011 |
| Neutral Citation | [2011] EWCA Civ 602,[2011] EWCA Civ 554 |
| Docket Number | Case No: B5/2010/2707,Case No: B5/2009/1396 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 May 2011 |
[2011] EWCA Civ 554
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
His Honour Judge Karsten QC
6UB04434
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Thomas
Lord Justice Lloyd
and
Lord Justice Rimer
Case No: B5/2009/1396
Mr John de Waal (acting pro bono) for the Appellant
The Respondent, Mr Gill, appeared in person
Hearing date: 1 March 2011
Introduction
This appeal by Tanya Grand, the claimant, is against an order made by His Honour Judge Karsten QC on 7 May 2009 in the Central London County Court. The defendant, respondent to the appeal, is Param Gill, Ms Grand's landlord. Before the judge, Ms Grand represented herself, and Mr Param was represented by counsel. Before this court, the position was the reverse. Ms Grand had the benefit of pro bono representation by John de Waal of counsel, for whose assistance I express my gratitude; and Mr Gill represented himself.
Ms Grand's claim against Mr Gill was for damages for his breaches of covenant as her landlord. The judge awarded her damages of £5,600. By her original grounds of appeal Ms Grand complained about the trial and its outcome in a number of respects but in the event she obtained permission from Patten LJ to appeal only on grounds 2 and 9. The terms of Patten LJ's permission show that he was in fact referring to ground 10, not ground 9.
Ground 2 complains of the judge's failure (i) to deal with Ms Grand's claim for special damages (pleaded as being for £392, but strictly for at most £343, £49 of the pleaded claim being in respect of costs for printing documents for the proceedings), and (ii) to award her any interest on the damages he did award. I need say no more about the special damages point since Mr de Waal, on instructions, abandoned it at the hearing. He did, however, pursue the interest point. Ground 10 is somewhat discursive, but the only element advanced to us, in line with Patten LJ's permission, was based on what was said to be the judge's mistaken treatment of Ms Grand's claim for general damages, with the consequence that he is said to have under-compensated her.
The facts
Ms Grand was formerly Mr Gill's tenant of the second floor (top) flat in a three-storey building at 9B Marlborough Parade, Uxbridge Road, Hillingdon, Middlesex. The ground floor consists of commercial premises and there is another flat on the first floor. She originally had a 12-month assured shorthold tenancy under a tenancy agreement dated 21 November 2004; and following the expiration of the original term, the tenancy continued as an assured periodic tenancy. Ms Grand occupied the flat with her daughter Alison, who was 17 at the time of the trial in May 2009. The flat comprises two bedrooms and a living room, kitchen, bathroom and lavatory. Mr Gill has a long leasehold interest in the flat but no interest in the remainder of the building. Ms Grand made claims against him under several heads. They included claims for harassment under the Protection from Harassment Act 1997 and for personal injury, which both failed and with which this appeal is not concerned. She also advanced a claim for breach of Mr Gill's covenant for quiet enjoyment, which succeeded and for which she recovered damages of £350 that formed part of the total damages awarded of £5,600. There is no need to refer further to that head of claim. I turn to the issues before the judge with which the appeal is concerned.
A. Damp and Mould
Ms Grand's main complaint was of damp and mould throughout the flat. The damp was apparent shortly after she moved in and got worse over time. It was evident on the walls of the living accommodation and became so bad that the smaller bedroom (Alison's) became uninhabitable and Alison had to move into the living room. Curative works to the damp problem were only done in April 2009. The judge found the complaint about the damp to be established.
B. Water ingress
Another complaint – found by the judge to be associated with the damp and mould and causally connected with it — was about the undisputed ingress of water into the flat through the ceiling, which was from two sources. The first was a leaking roof above the ceiling. The second was the guttering at the level of the roof. The roof was not, however, part of the premises let to Ms Grand and the judge found that the responsibility for the repair of the roof and guttering lay with the head landlord.
C. An inadequate boiler
The complaint here was that the gas-fired boiler was old, extensively corroded, broke down frequently and worked inefficiently. The judge accepted Ms Grand's evidence that during a total of 207 days (give or take a day or so) between 22 November 2004 and 24 November 2007 the boiler did not function at all. It was replaced in November 2007, following which there was consistent proper heating in the flat. During the periods prior to that when the old boiler was working, it failed to produce sufficient heat to provide a warm or comfortable environment and to provide hot enough water for a hot shower. The ambient temperature that it achieved was just 15 degrees centigrade, which the judge found was inadequate. Ms Grand's evidence in relation to the boiler was not challenged.
The judge's further findings and conclusion
The judge found, in paragraph 21, that Ms Grand had given sufficient notice to Mr Gill of the various defects and matters complained of to activate such obligations to which he was subject to effect necessary repairs. For the reasons he gave, he rejected, in paragraph 25, an assertion that any damages to which she was in principle entitled ought to be reduced on the ground that she had, so it was asserted, failed to afford access without good reason to workmen whom Mr Gill sent to the flat.
The judge dealt in paragraph 26 and following with the claim in respect of the damp and mould. He held that the experts' reports showed that the primary cause of it was the design and structure of the flat, essentially its lack of ventilation. The penetrating damp had been aggravated by the ingress of water from the roof and the guttering but those areas were not within Mr Gill's demise. He held that to the extent that damp or mould had been caused by condensation because of a lack of ventilation, a landlord's repairing obligation under section 11 of the Landlord and Tenant Act 1985 did not arise until there was some condition calling for repair. He relied on Quick v. Taff Ely Borough Council [1986] QB 809 for the proposition that there was no actionable repair where severe condensation was caused by the design of the property.
The judge explained as follows his damages awards in respect of (i) the damp and mould, (ii) Mr Gill's failure to resolve the boiler problem over a period of three years from November 2004 to November 2007, resulting in a lack of proper heating to the flat during this time, and (iii) his breach of the covenant for quiet enjoyment:
'26. … It seems to me that, save to the extent that it can be shown that any structural damage is caused which could constitute actionable disrepair, the principles of Quick v. Taff Ely apply to this case. The only possible structural damage arising on the facts of this case might be damage to the plasterwork, but there is no evidence that the condensation required more than the walls to be cleaned, so that the damage caused was decorative rather than anything else.
27. Essentially, it seems to me that the principal cause of the damp and mould is therefore the design defect in the property, for which [Mr Gill] is not to be held responsible, but I am satisfied that it was contributed to to a certain extent by the non-functioning and/or poor functioning of the boiler during the first three years of the tenancy, and that is disrepair of the installation for which [Mr Gill] is plainly responsible. It was also contributed to to a small extent by the fact that for a year or so one of the double glazed windows had been smashed and was to be repaired, so that one of the two layers of double glazing was absent. In addition, as I touched on towards the beginning of this judgment, the ingress of water contributed to the condensation, but the lack of adequate heating in my judgment did make a contribution to the condensation problem.
28. In his first report, the expert says, at paragraph 5.02.1, that "condensation occurs when moisture in the air condenses on cold surfaces, consequently the control of condensation is governed by the presence of moisture within the air and the presence of cold surfaces." He goes on to say that "the presence of cold surfaces is governed by thermal capacity and performance of the structure, together with the presence and use of heating system." It was the failure or lack of any adequate heating system for these three years [November 2004 to November 2007] that made a contribution, as I have found, to the fact that there were these cold surfaces upon which damp and mould was able to grow.
29. In addition, there is one area which relates to the exterior of the flat itself. It is referred to in the Scott Schedule to the first report, at paragraph 1.02, where "dampness with minor efflorescence and minor mould growth" is noted at the top of the front wall of the living room, requiring all defective plaster to be hacked off down the wall, approximately 600 millimetres from the ceiling. This was caused by the guttering, but it is a structural defect.
30. As to the lack of heating at all for periods of time and to an adequate standard for the remainder of the first three years of tenancy, plainly this created an extremely difficult situation for [Ms Grand] and her daughter. The daughter (or her mother) describes how at the beginning they shared a bed and had to cuddle up and cover...
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