Siveter v Wandsworth LBC (2012) CA (Civ Div) 16/02/2012 [Not on Bailii yet, just a Lawtel note]

S was the secure tenant of Wandsworth in a 4th floor flat. She had complained to Wandsworth about pigeons nesting outside her flat, in a cupboard that had an opening into the flat. It was not in dispute that the pigeons had poultry mites. Wandsworth sent pest control who removed the pigeons and disinfect the nest.

However poultry mites remained and moved into the flat for fresh hosts. They multiplied, so that S and her son could no longer remain in the flat as both were being bitten.

S claimed for damages on the basis that Wandsworth had failed in its obligations as a landlord and in a common law duty of care, by failing to remove the mites from the cupboard.

At first instance trial, S’s expert EHO said the migration of the mites was a likely consequence of the removal of the pigeons and that the cupboard should have been sprayed as a minimum.

Wandsworth’s environmental officer said it was rare for mites to get into a house, but he would have advised that he cupboard be checked for infestation, given the proximity to S’s home.

The first instance judge referred to some, though not all, of the evidence of the expert and the LA officer. The Judge held that it was not unreasonable, once the nest had been removed and the surrounding area sprayed, to leave matters there. Anything else was with hindsight.

S appealed, arguing that the Judge had failed to address the uncontested evidence of both the expert and the LA environmental officer that each would have sprayed, or at least checked, the cupboard. Wandsworth responded that it was not foreseeable that the mites would migrate into the flat.

The Court of Appeal held that:
i) The Judge had failed to address the shared view of the expert and the LA Officer that the cupboard should have been inspected and de-infested.
ii) The reference to hindsight was not apposite. The existence of poultry mites and their behaviour was well known. (In one judgment, it was inevitable and foreseeable that the mites would have inhabited the cupboard below the nest and migrated into the flat).
iii) The judge’s finding that only spraying around the nest was not unreasonable did not address the question as to what the area sprayed was. As the nest was on top of the cupboard. that area should have included the cupboard itself.
iv) The Judge had failed to grapple with the evidence, which was all one way, so the judgment could not stand.

The Court of Appeal gave judgment for S and remitted the case to the County Court for assessment of quantum.

We’d be keen to know more about this one – and to see a copy of the judgment if available. I’d love to know how the case was pleaded, as the lawtel note isn’t helpful on that point. Sylvester Carrot, instructed by Kingston and Richmond Law Centre acted for S.

* With apologies to Gertrude Stein, whose original runs:

Pigeons on the grass alas.
Pigeons on the grass alas.
Short longer grass short longer longer shorter yellow grass.
Pigeons large pigeons on the shorter longer yellow grass alas pigeons on the grass.