Damages award on Disrepair general level Damages

british landlords associationCase Law On Disrepair Damages

The basic principle in awarding damages in both contract and tort is to put a person, so far as money can do so, in the position he or she would have been in had they not suffered the wrong. Principles such as causation of damage, remoteness of damage, mitigation of loss and contributory negligence need to be considered. General damages may include claims for inconvenience and discomfort, diminution of value and injury to health caused or aggravated by disrepair. Special damages claimed may include the value of belongings or furniture damaged or ruined, the cost of rectifying the disrepair, including the cost of redecorating, the additional cost of heating damp premises, the cost of alternative accommodation if the tenant moves out, etc.

It is important when relying on previous awards of compensation to update the amount to account for inflation. A table of the latest retail price indices is available at www.statistics.gov.uk (use quick link ‘virtual bookshelf’, ‘economy’, ‘focus on consumer price indices’ and download the latest guide. The required table is under Consumer price inflation – RPI long run series (Table 5.1)).

Updated current value = £[old value] × Later date index
Earlier date index

So £1,000 awarded in 1990 was, in 2006, the equivalent of £1,000 x 781.5 (annual average RPI in 2006) divided by 497.5 (annual average RPI in
1990), ie £1,570.85. Monthly RPI figures are also available on the table.

Ahmed v Southwark LBC ( 999) HLR 28 , CA

Arbitration tribunal could not revisit decision on liability when later assessing damages The council’s tenancy agreement provided that disputes about alleged breaches of the agreement could be referred to an arbitration tribunal operated by the council. In 1991 tenants complained about disrepair to the bedroom, which comprised an area above the window that needed replastering, defects to the window and condensation dampness. In 1995 the tribunal ordered the authority to rectify all defects within 28 days. The council failed to do this. The tenants applied for compensation in the county court for the delays in carrying out repairs. The application was remitted to the tribunal. The tribunal awarded compensation for the disrepair to the window, but decided that the council had not been in breach of the covenant in respect of condensation dampness. The Court of Appeal allowed the tenants’ appeal. At the second hearing the tribunal could not go behind the finding at the first hearing that the council had been in breach of contract and find that there was no breach. At the second hearing the tribunal was simply concerned with assessing
the compensation which was due as a consequence of the breach.

Berryman v Hounslow LBC ( 998) 0 HLR 7, CA Council’s failure to maintain lift did not make it liable for tenant’s injury on stairs

In breach of an express covenant, the council failed to maintain the lifts in an 18-storey block of flats. As a result, the lifts broke down and were immobilised. The plaintiff tenant was forced to use the stairs and stumbled and fell, suffering serious personal injury. She was awarded damages of over £25,000. The Court of Appeal allowed the council’s appeal on liability. The breach of covenant had immobilised the lift which was, accordingly, ‘safe’. The stairs were ‘safe’. The plaintiff’s stumbling and falling on the stairs was not a reasonably foreseeable consequence of the breach of covenant in respect of the lift. Stairs are an ordinary feature of life and there is no more than a bare possibility of extra or added risk of injury in climbing stairs.

Brent LBC v Carmel (sued as Murphy) ( 99 ) 28 HLR 20 , CA Permission to appeal award of damages refused;

award not manifestly excessive The council claimed possession and a money judgment for arrears of rent of over £13,000. The tenant counterclaimed for damages for disrepair and pleaded a set-off. At trial the council abandoned its claim for possession and £3,858 of the rent claim (which was a charge for heating which had not in fact been provided). HHJ Charles QC found that the tenant had first complained of dampness and a defective central heating system in 1981. The condition of her home ‘became progressively worse and from 1986 onwards was appalling and intolerable’. The home was so cold and damp that the tenant and her two children had to sleep in outdoor clothes. For part of that time they had to share one bedroom. He awarded: (a) damages
for discomfort and inconvenience of £1,000 per annum from 1981 to 1986 and £1,500 per annum from 1987 to 1993 (£14,000 in all); (b) damages for loss of value of the premises assessed at 30 per cent of the rent for 1986/87 and 50 per cent from 1988 to 1993 (leaving the council rent claim worth only £1,570); and (c) special damages of £19,320 with interest at 13.5 per cent from 1986 to trial. After setting-off and extinguishing the rent claim, the tenant obtained judgment on the counterclaim for £50,004. The Court of Appeal refused the council’s application for leave to appeal.
Roch LJ stated that there was ‘no reasonable prospect of a successful appeal’. The award was ‘not wrong in principle or manifestly excessive’.

Calabar Properties Ltd v Stitcher [ 984] WLR 287; [ 98 ] All ER 7 9, ( 98 ) HLR 20; ( 98 ) 2 8 EG 97, CA Damages for dimunition in value of flat not appropriate where repairs to be carried out

In October 1975 Mrs Stitcher bought the long lease of a flat in a block of flats with the intention of living there permanently. In January 1976 she complained that, in breach of the landlords’ repairing covenant, rainwater was penetrating the flat and causing damage. Apparently ignoring the contents of their own expert’s report, the landlords took the view that they had no responsibility and failed to carry out the necessary repairs. The dampness affected Mr Stitcher’s health and he suffered from bronchitis and pleurisy. In January 1981 the flat became uninhabitable and the Stitchers moved out temporarily into rented accommodation. The landlords sued for arrears of ground rent (£100 per annum) and service charges, and the tenant counterclaimed for damages for breach of repairing obligations. An official referee found that the damage to the flat was due to the breach of the landlords’ repairing obligations. He awarded damages of (a) £4,606.44, being the cost of making good and redecorating the flat, plus 10 per cent for supervision, plus VAT, and (b) £3,000 for ‘disappointment, discomfort, loss of enjoyment, and bouts of ill health’ which Mr Stitcher had suffered. The landlord did not appeal against the finding of liability or the quantum of damages. Mrs Stitcher, however, appealed against the refusal of the official referee to make an award in respect of (a) the rates, rent and running costs, including the service charges, during the period when the flat was uninhabitable and (b) further damages for diminution in the capital or rack rental value of the flat. The Court of Appeal dismissed her appeal. The running costs were not recoverable because they were ‘a necessary consequence of retaining
the lease of the flat and would have been offset by the outgoings included in the award for alternative accommodation if that had been claimed’ (no claim for the cost of alternative accommodation was pleaded, but the Court of Appeal indicated that such costs could have been recovered if they had been pleaded). Damages for diminution in capital value were not recoverable because the lessee had not acquired the premises with the intention of reselling and there would be no long-term diminution in value when the disrepair had been rectified. Griffiths LJ stated: The object of awarding damages against a landlord for breach of his covenant to repair is not to punish the landlord but, so far as money can, to restore the tenant to the position he would have been in had there been no breach. This object will not be achieved by applying one set of rules to all cases regardless of particular circumstances of the case. The facts of each case must be looked at carefully to see what damage the tenant has suffered and how he may be fairly compensated by a monetary award.

[1983] 3 All ER at 768) Chiodi v De Marney ( 989) 2 HLR ; [ 988] 2 EGLR 4; [ 988] 4 EG 80, CA General damages of £30 pw (where rent was £8 pw) not disturbed on appeal

The tenant, Miss De Marney, was a statutory tenant by succession. She rented a flat consisting of a living room, a bedroom, and a kitchen with shared use of a bathroom. She was aged 32. A fair rent of £8 per week was registered. Miss De Marney complained about disrepair in October 1980 and stopped paying rent later the same year. There were several items of disrepair. An Ascot water heater broke down, with the result that there was no hot water supply to the bathroom. A disintegrating bedroom window was not replaced and panes of glass fell from it. Water penetration through holes in the roof caused electrical wiring to deteriorate. Ceilings fell in, and there was rubble in the bath. As a consequence, Miss De Marney’s arthritis was exacerbated and she suffered colds and influenza. In 1981 a Public Health Act notice was served and in September 1983 Miss De Marney was rehoused temporarily by the local authority while works were carried out in default. She moved back into the flat in March 1985. Later in the year the landlord’s personal representatives brought proceedings alleging rent arrears and Miss De Marney counterclaimed for breach of
repairing obligations. A recorder sitting at West London County Court assessed damages on the counterclaim under three heads:

1) general damages for inconvenience and distress at the rate of £30 per week for the period of three and a half years from the date when notice was given until the time when Miss De Marney moved out so that the local authority could carry out works – damages under this head totalled £5,460;

2) special damages for furniture, clothing, decorations, etc, which amounted to £4,657; and

3) damages for injury to Miss De Marney’s health, which were assessed at £1,500. The landlord’s personal representatives appealed to the Court of Appeal, but only against the award of £5,460 for general damages. The appeal was dismissed. Although Ralph Gibson LJ described the award as being ‘at least at the very top of any appropriate range of monetary awards for such a case’, he stated that the recorder’s approach to damages was right and that he had not erred in failing to take account of the rent as a prima facie indication in the level of damages. The award of damages was not ‘so high as by itself to indicate error’.

Davies v Peterson ( 989) 2 HLR ; [ 989] 0 EG 0, CA (see also G24.4) Award of damages was ‘little more than nominal’ and increased on appeal

The landlord brought possession proceedings (see G24.4) The tenant not only defended these claims (unsuccessfully), but also counterclaimed for damages for breach of repairing obligations. HHJ Lipfriend, sitting at Westminster County Court, awarded damages of £858, mainly in respect of special damages, but with an award of £250 for discomfort, anxiety and inconvenience. Although there were few specific findings relating to this, it was clear ‘to a limited extent in point of time that one of the bedrooms and the living room of this house were uninhabitable because of damp’. This state ‘extended over a period of at least 12 months’. In the Court of Appeal, Russell LJ stated that in 1988 ‘the sum of £250 must … be regarded, when awarded by way of compensation for inconvenience, anxiety and discomfort, as little more than nominal’. He did not regard it as a case in which nominal damages were appropriate and, although recognising that the Court of Appeal will not interfere with an award of damages unless it is wholly out of keeping with established authority, increased the award of general damages from £250 to £1,000. He stated; It is plain that in this day and age the courts are prepared to award substantial sums to tenants who are the victims of defaulting landlords where disrepair occurs.

(1989) 21 HLR at 70) Kerr LJ described an award of £250 as:
… just the sort of sum which … should not be awarded, because it is little more than nominal or cosmetic. (ibid at 71) In the light of the uncertain findings, he agreed that £1,000 was an appropriate figure ‘though it might well have been higher’.

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