Tag Archive for 'negligence'

Like a blind man searching for a black hat in a dark room

Published
by
J
on 08/07/2009
in Disrepair, FLW case note and Housing law - All
. 8 Comments

Heffernan v LB Hackney [2009] EWCA Civ 655 is a timely reminder of the importance of having evidence to substantiate a claim for damages.

Mr Heffernan was the freehold owner of 16 Penhurst Road, London, E9 (“the property”). The property was converted into two flats, the upper flat being let on a tenancy protected under the Rent Act 1977 and the lower flat being vacant. Mr Heffernan was in dispute with the tenant of the upper flat and, as a result, had not been receiving payments of rent from the tenant, with the alleged result that various repairs were falling due.

In September 1996, LB Hackney served four notices on Mr Heffernan pursuant to Part 5, Housing Act 1985. The notices were served under ss.189(1), 189(1A), 190(1)(a) and 372 and asserted that:

(a) the basement flat was unfit for human habitation;

(b) the exterior of the house required repairs and the flats were unfit for human habitation;

(c) the flats were in a state of disrepair that required substantial remedial works;

(d) the whole house was in a defective condition as a result of neglect.

In all cases, Mr Heffernan was required to perform specified repairs within three months. The repairs were not carried out immediately, but, rather, Mr Heffernan applied for grant aid from Hackney. For reasons which are unclear, no grant was made and, in December 1996, the right to grant aid was removed and replaced with a discretionary power on the part of the local authority to provide grant aid (see, generally, Local Government and Housing Act 1989). Hackney adopted a policy of only making grants in respect of applications made under the old regime if the application (under the old regime) had been accompanied by a builder’s estimate.

Hackney then sought to prosecute Mr Heffernan for non-compliance with the notices but this was abandoned once it became clear that Hackney could not prove that the Allied Irish Bank, the mortgagee with a charge over the freehold, had been served. This was significant because notices under ss.189 and 190 were required to be served on inter alia, mortgage companies and notices under s.372 required the mortgage company to be informed of the same.

Relying on this failing, Mr Heffernan issued proceedings against Hackney, alleging negligence and breach of statutory duty, seeking c.£100,000 by way of the cost of works undertaken, loss of rent and damage caused by Hackney’s workmen.

Hackney defended the proceedings and argued that the notices had actually been served, albeit it could not find the notices when proceedings had been issued in the Magistrates’ court. It further argued that Mr Hefferman had in his possession a letter from Allied Irish Bank confirming that the notices had been served.

The trial Judge held that a duty of care was indeed owed and that it had been breached, but that no damage had been proven. He had “no idea” how the claim for the cost of remedial works was made up and that there was no evidence of any loss of rental income or of damage being inflicted by the council’s workmen.

Mr Heffernan appealed against these conclusions. His appeal was dismissed. Aikens LJ gave the leading judgment. The Judge had been quite entitled to reject the claim for the cost of repairs as there was no evidence of any work actually being done. Lesser sums, which may have been capable of being proved, had not been pleaded and the Judge had been entitled to reject them.

The claim for the loss of rent was in the same position. Mr Heffernan had not demonstrated a causative link between the alleged negligence and his alleged loss.

The damaged caused by Hackney’s workmen was slightly different. It was clear that workmen had attended the property, but, again, there was no evidence of the actual cost of remedying any damage that they caused.

Accordingly, the appeal was dismissed.

Sedley LJ added a few words. It was “not permissible to come to court with bald assertions of the kind with which the Judge… was presented, unsupported by a single document showing payment or loss, and to leave him, as Bowen LJ once put it, like a blind man searching for a black hat in a dark room…”

Both Aikens and Sedley LJ were rather concerned about the assumed cause of action and were far from convinced that a claim in negligence could have succeeded – as a matter of law – on the facts of the present case. It was not, however, necessary to determine that point given the findings of fact made by the Judge.

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Bits from LAG and nuisance & Art 8

Published
by
NL
on 06/04/2009
in FLW case note, Housing law - All, Nuisance, Possession, Unlawful eviction and harassment and secure-tenancy
. 0 Comments

There are several cases in the latest LAG updates that we haven’t covered and that are interesting. Thanks as ever to Jan Luba QC and HHJ Nic Madge for the LAG reports. There are two brief notes on County Court cases and a more sizeable one on Dobson v Thames Water, a Court of Appeal case on nuisance and Art 8 infringement that we had somehow missed from January and which isn’t discussed at length in LAG.

Southwark LBC v Jackson and Jackson, Lambeth County Court 27 January 2009
Mr & Mrs Jackson were elderly joint secure tenants. Mr Jackson had died, leaving Mrs Jackson as sole tenant. Southwark served Notice to Quit on the basis that the tenancy had ceased to be secure due to failure to occupy as only or principal residence. Possession proceedings were brought on that basis, with alleged unlawful subletting and rent arrears. Mrs Jackson did not attend and an outright order was made, followed by warrant. Mrs Jackson applied to set aside the possession order on the basis that she was not living at the property because repairs had not been completed.

At the hearing of the set aside application, Mrs Jackson argued that the Notice to Quit was invalid, giving only 27 days notice rather than 28, and the saving clause didn’t save it. This had not been raised or noticed at the possession hearing. The Court had a power to set aside the order under CPR 3.1(7). Southwark acknowledged the notice was deficient but argued it should not be set aside just for that reason.

The Court, HHJ Gibson, set aside the PO. If the first Court had considered the deficient notice, the PO would not have been made. To let it stand would be to force the tenant from her home other than in accordance with the law. This would be a breach of convention rights.

In addition the Court observed the initial possession hearing had been dealt with very summarily. The DJ did not appear to consider whether Southwark had made a prima facie case that the tenancy had ceased to be secure. Southwark’s own pleading mentioned the presence of someone who said he was the tenant’s grandson, but there was no address to whether or not he was a caretaker for the tenant. From Southwark’s pleadings, there appeared to be significant doubt about whether the tenant had actually parted with possession, which circumstances would also make the possession order unlawful.

That point, that to give possession on anything less than a lawful Notice is a breach of the tenant’s convention rights, could be useful to raise with a DJ otherwise minded to condone ‘minor errors’ or ‘oversights’ in notice. Likewise, to fail to set aside a PO based on defective notice.

Also useful is the insistence that even an undefended summary possession hearing should involve some scrutiny of whether the prima facie case is sufficiently made out.

Evans v Ozkan and Hussein, Bromley County Court 6 February 2009.
Unlawful eviction and harrassment quantum. Mr Evans was a private assured shorthold tenant. The landlords knew he was on benefits before the tenancy began. After about a month, following a delay in HB, Mr Hussein visited, intimidated Mr Evans and demanded £1000. Soon afterwards, Mr Evans returned home to find some of his belongings on the pavement and the defendants throwing out more. Mr Evans was verbally intimidated by Mr Hussein.The police were called and (helpful as ever in cases of illegal eviction, which is, as they constantly need to be reminded, a criminal offence as well as civil one) arrested Mr Evans. On his release later that day, Mr Evans found many of his belongings smashed on the pavement and smelling of urine. Mr Evans slept in his car and returned the next day to find the locks changed. The Defendants followed him to a pub, threatened him with baseball bats and demanded £1000, or his remaining belongings would not be returned. Mr Evans applied as homeless and was eventually rehoused 63 nights later, during which time he was homeless. He claimed for trespass, harassment and unlawful eviction

The defence was struck out for failure to comply with directions and the Defendants represented themselves at hearing.

HHJ Hallan awarded: general damages of £250 per day that Mr Evans was homeless (£15,750), and interest from the date of rehousing; special damages of £5000; aggravated damages of £1000 and exemplary damages of £2000, with interest from date of eviction. Damages otherwise payable under the Protection from Harassment Act 1997 were part of the aggravated damages. Exemplary damages were levied as the Defendants had sought to avoid the due process of law and its attendant costs (presumably, this would apply to virtually any unlawful eviction?).

And – how did we miss this one? – Dobson v Thames Water Utilities Ltd [2009] EWCA Civ 28. Going beyond the LAG note, this is a claim in nuisance,negligence and under Art 8 of the convention. Following a hearing of preliminary issues, the Court of Appeal was asked how damages for breach of Art 8 should be assessed, given that the claimants’ enjoyment of their homes had been impaired. The Court was also asked whether such damages would be payable in addition to those in nuisance and negligence.

The issue is that, following Hunter v Canary Wharf [1997] AC 655, damages for private nuisance at common law appeared to the Judge in the court below to be based upon these paras in Hunter:

184(1) That damages awarded for nuisance, where there has been personal discomfort, are assessed on the basis of compensation for diminution of the amenity value of the land rather than damages for that personal discomfort.

184(2) That damages for diminution of amenity value are measured by reference to the size, commodiousness and value of the property not the number of occupiers.

184(3) That damages for compensation for diminution of amenity value of the land may be reflected either in diminution of capital value or rental value.

184(4) That damages for diminution in value frequently raise difficult issues of assessment which can usually be resolved by expert evidence. If such assessment is not reasonable or practicable then the principles on which damages are assessed are sufficiently flexible to do justice between the parties by arriving at a sum for general damages for loss of amenity.

Whereas Art 8(3) says that damages for breach of art 8 rights must accord ‘just satisfaction to the injured party’. the Claimants suggested that this would either potentially ‘top up’ an award of damages for nuisance, or enable separate damages for those without a proprietary interest, but resident – a child or foster-child, for instance.

The Court of Appeal held that:

Damages in nuisance are for injury to the property, not the sensibility of the occupier, Hunter v Canary Wharf.

Where this is for ‘transitory’ nuisance such as loss of amenity, the calculation may be based on loss of market value, but this must take the personal experience of all the occupiers into account, not just that of the person with the proprietorial interest. So the actual impact on the occupiers is relevant. (Certainly non-occupation means no damages, unless the property was being sold or rented and suffered a loss in value, or there was physical injury [para 34]).

The award of damages in nuisance is not to compensate other occupiers of the property, only the person who has the right to sue in nuisance.

Where the creator of the nuisance is a public authority, then Art 8 rights will be engaged. However, the Lords decision in Marcic v Thames Water Utilities Ltd [2004] AC 42 means that where no negligence is alleged, not even the owner of the property would have an Art 8 claim, let alone the other occupiers. So this is a limited issue, for nuisance caused by negligent public bodies only.

Under the convention:

where a public authority has been found to have acted “unlawfully” the court “may grant such relief or remedy …as it considers just and appropriate”. No award of damages is to be made unless, taking account of all the circumstances including any other relief or remedy granted in relation to the same act, the court is satisfied that the award is necessary to afford just satisfaction. In determining whether to award damages, or the amount, the court must take into account the principles applied by the European Court under Article 41. [para 41]

Strasbourg case law has given little guidance on the award of damages. This is a test case, where the claim is, in part, on behalf of an identified individual who has not, personally, had ‘reparation’ under english law. However, it is not irrelevant that this person’s parents may be awarded damages under nuisance and what sums they are awarded. This is part of a consideration whether it is necessary to make an award for just satisfaction, or would a declaration of infringment suffice, alongside the award of damages to those with a proprietorial interest. Where the issue is loss of amenity, the effect on the whole household should already have been considered as a relevant factor – see above – and this would be highly significant in considering the amount, if any, of Art 8 damages to the non-proprietorial occupier.

On whether an Art 8 ‘top-up’ of damages over those calculated for nuisance may be made, the Court of Appeal admits the possibility, but considers it very improbable indeed that Strasbourg would make an award above and beyond an award in damages for common law nuisance [para 50]. Normally, such damages should be considered sufficient.

As to co-owners, if both are in occupation, the effect of the nuisance on each of them should have been considered in the assessment of damages, so splitting the award does each justice. Where one co-owner is not in occupation, for a loss of amenity claim, it would be inequitable for them to claim a share of the award.

So, in a nutshell, it will usually be the case that the claim in nuisance and negligence by the person with a proprietorial interest in the affected property will, if the relevant factors are taken into account in calculating loss of amenity, also constitute just satisfaction for the other occupiers for the purposes of Art 8 infringement. This is because the experience of the whole household is a relevant factor for assessing loss of amenity value.

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The end of the road

Published
by
J
on 02/04/2009
in FLW case note and Housing law - All
. 2 Comments

X v LB Hounslow [2009] EWCA Civ 286.

When news of X first reached the NL team, the near unanimous response was one of pleasure at the result. Once we obtained a transcript and saw the reasoning of the trial judge, it became clear not only that an appeal would be pursued but that it would be successful. Those feelings were only strengthened by the decision of the House of Lords in Glasgow CC v Mitchell. And we’re been proved right.

The facts of X are truly awful. X and Y are, on any view, vulnerable adults. They both have learning difficulties and have low IQs. In these proceedings, they were protected parties represented by the Official Solicitor. They were married and had two children, aged 11 and 8. They were also secure tenants of LB Hounslow.

Local youths began to befriend X and Y, with a view to taking over their flat and using it as a place to take drugs, have sex, store stolen goods etc. These problems came to a head when the youths detained X, Y and their children in the flat for the weekend and repeatedly assaulted and abused them all. X and Y were forced to perform a variety of sexual acts. X was forced to drink urine and eat dog faeces. He was slashed with a knife and had kitchen cleaner sprayed in his mouth. The family’s possessions were thrown over the balcony. The children were assaulted and abused, as was the family dog.

The social services department had been aware of the problem of local youths exploiting X and Y and had taken some steps to ameliorate the problem but had not requested any emergency re-housing because, at that stage, an assault of this nature was unforeseeable.

X and Y issued proceedings against Hounslow, initially in nuisance and negligence but, at trial, only sought to argue that Hounslow owed a duty of care (and, hence, had breached that duty so as to give rise to liability in negligence) by failing to move X and Y prior to the assault. A claim under Articles 3 and 8 of the ECHR was also raised. The trial judge – in a rather confused judgment – allowed the claim. An appeal was inevitable.

The first question for the Court of Appeal was whether, taking into account the relevant statutory background, Hounslow owed any duty of care. After surveying a range of statutes, (rather like a student who just writes everything they know about a topic without ever actually answering the question) the Court noted that the trial Judge had not actually ever found that there had been any breach of statutory duty, nor had he found any individual in Hounslow to owe a duty of care. Rather, he had jumped straight to the “fair, just and reasonable” test in Caparo v Dickman [1990] 2 AC 605 and had concluded that it was indeed fair, just and reasonable to impost a duty of care.

For the Court of Appeal, the failure to find a breach of any statutory duty was crucial. It was difficult to see how a duty of care could exist merely because of a public law failure to carry out a duty or exercise a power. This was particularly so where, as here, what was actually said was that the failure to exercise a public law duty/power had given a third party an opportunity to cause harm to X and Y.

Following Glasgow CC v Mitchell, in order for X and Y to succeed, they would have to show that the law already regarded Hounslow as being under a specific responsibility to protect them from an identified risk or that Hounslow had entered into a relationship or undertaken responsibilities which gave rise to a duty of care. The relationship here – as in Mitchell – was contractual and there was noting in the tenancy agreement which suggested any duty of care or any assumption of responsibility. In particular, much of what Hounslow had done was in an attempt to discharge their statutory functions and, plainly, that could not give rise to an assumption of responsibility.

Whilst the focus of the judgment had been on the social services department, it was clear that, for similar reasons, no duty could be owed by the housing department. Hussain v Lancaster CC approved.

So – between X and Mitchell, that looks like the end of the road. In order for a landlord to be responsible in negligence for the acts of third parties (even if those third parties are tenants) there will need to be something quite extraordinary. Or an express statement in the tenancy agreement.

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Something for the weekend

Published
by
J
on 13/02/2009
in ASB, Community care, Housing law - All and Possession
. 0 Comments

The House of Lords will be giving judgment in Glasgow CC v Mitchell on Wednesday 18 Feb 09 (link is to a .pdf). This is a case that we’ve missed so far but, in essence, is about the scope of the duty of care (if any) owed by a landlord to their tenants in respect of liability for the anti-social acts of another tenant. In outline, it is said that Mr Mitchell complained to Glasgow CC about his neighbour. He told Glasgow not to let his neighbour know about the complaint. Glasgow then interviewed the neighbour and told him about the complaint, naming Mr Mitchell. The neighbour then killed Mr Mitchell. There is a full (and quite detailed) analysis of the case in the current edition of the Journal of Housing Law. Although it is a Scottish case, it plainly has implications for England and Wales, not just because of the pending appeal in X v Hounslow.

Also (and thanks to Rosaleen Kilbane of CLP for the information), the decision in Secretary of State for the Environment Food & Rural Affairs v Meier & Ors [2008] EWCA Civ 903 is also off to the Lords. Our note is here.

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Duty to protect update 1

Published
by
NL
on 28/05/2008
in ASB, Community care, Housing law - All, Nuisance and secure-tenancy
. 0 Comments

Update on this case from Friday 24 May. No judgment available yet that I have seen, but there is a further new story on the Hounslow case at 24dash.com, which gives a few more details.

Specifically, the negligent failure found was that housing did not invoke emergency transfer processes, despite a) social services involvement with the family and b) complaints and warnings from neighbours about the youths’ presence and activities in the claimant’s home. It arose from a found lack of communication between social services and housing and lack of appreciation of the seriousness of the situation and failure to give priority in both departments, despite the evidence.

Damage of £97K, suspended pending appeal.

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A duty to protect?

Published
by
NL
on 24/05/2008
in ASB, Community care, Housing law - All, Nuisance and secure-tenancy
. 4 Comments

A case is reported in the Guardian which apparently extends local authorities’ duty to protect tenants from third parties to include vulnerable adults, not only children.

A couple, both with learning difficulties, were terrorised in their flat by a group of youths over two days, during which they were assaulted and abused. Hounslow Council had failed to rehouse the couple, although the threat of attack ‘was foreseeable’.

At the High Court, Hounslow argued there was no duty of care, but Mr Justice Maddison held otherwise. The failure to rehouse was negligent. Damages of £100,000 were awarded. Hounslow were given permission to appeal.

I’m looking forward to seeing the judgment on this one.

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