Pathology and building surveyors: key legal cases
Where does the fault lie?
27 March 2017
In the concluding article in this series, Mike Parrett considers important legal cases and their impact on surveyors
Having considered the legal context for building pathology work on damp (see In the eyes of the law), this issue refers specifically to cases involving building surveyors.
There are two seminal cases on disrepair. Proudfoot v Hart  LR 25 QBD42 stated the need to keep a premises in repair “having regard to its age, character and locality”. In a Georgian house, for example, we are not required to implement repairs to modern standards; when dampness is penetrating a wall, we need not render the whole wall if this would be out of keeping with neighbouring properties.
Quick v Taff Ely Borough Council CA  EWCA Civ 1 was the first case that defined disrepair as “not related to a lack of amenity or inefficiency” to the property. This means a landlord can let a tumbledown house that could be in a very poor state but falls outside the definition of disrepair because this state is a result of its design and construction rather than any breach under section 11 of the Landlord and Tenant Act 1985.
Disrepair cases can be defended or dismissed where inherent building defects exist, which typically fall under the Latent Damage Act 1986: if a gap appeared in a floor slab but it can be shown that the original design or construction omitted an expansion joint, then it is an inherent defect.
I have previously discussed design problems caused by heat loss and condensation in maisonettes cantilevering over a walkway (Property Journal May/June 2016, pp.36–39). McNerny v London Borough of Lambeth CA  21 HLR 188 related to a design defect that was causing condensation and held that the landlord was not contravening section 11 of the 1985 act as a result. Lee v Leeds City Council  EWCA Civ 6 was another case citing Quick, where mould, mildew and condensation were caused by the building’s design.
Southwark London Borough Council v McIntosh  47 EG 145 found that a tenant’s use of a dwelling – drying clothes in a cupboard – contributed to mould and damp, and a leaking washing machine from an upstairs property was similarly unconnected with the defendant landlords.
There is a vast difference between the awards that claimants can receive in civil and criminal cases.
In terms of disrepair, the landmark case for assessing general damages is Wallace v Manchester City Council  EWCA Civ 1166. This said actual damages can vary depending on the circumstances but should range from £1,000–£2,750 for each year that the landlord was put on notice of the disrepair. In the 19 years since Wallace, general damages have probably since increased to £3,000–£4,000 a year.
Disrepair claims that have prevailed for a long time can result in sizeable damages. In London Borough of Camden v Olaniyan and Oshibote, Central London County Court 2014, general damages of £40,000 were awarded. General damages usually relate to issues such as rental values; additional special awards concern items such as damaged furniture.
In contrast to disrepair claims, prejudicial to health and statutory nuisance claims have a £5,000 limit, but landlords can also be found guilty of a criminal offence. Repeated failure can lead to imprisonment, as with disrepair cases.
Impact on surveyors
A Pre-Action Protocol for Housing Disrepair Cases was created to avoid adversarial court cases. This recommends a single joint expert report directly to the court: a surveyor acting in this capacity must answer questions from both sides on the content, details and recommendations in their expert witness report. This is to a strict timetable – typically 20 days to conduct the survey and issue a report.
A landlord can let a tumbledown house that falls outside the definition of disrepair
In the case of prejudicial to health and statutory nuisance claims, once an abatement notice has been served, a landlord has 21 days to remove the nuisance. It can be onerous for surveyors acting for the defendants to organise suitable remedial works.
If a single joint expert is not appointed, then the claimant and defendant will appoint separate experts. A surveyor is often more comfortable acting for the claimant because they merely have to establish dampness, offer a reasonably compelling cause – such as failure of the physical, horizontal damp-proof course – and confirm it breaches the repairing covenants under section 11 of the 1985 act.
The defendant’s surveyor on the other hand has to undertake pathology work to prove or disprove the claim. I think this is the wrong emphasis – the claimant’s surveyor should be required to unequivocally prove causation.
To avoid problems, landlords should follow the advice of William Morris, founder of the Society for the Protection of Ancient Buildings, who advocated regular maintenance to stave off decay. A blocked gutter – a section 11 failure – leading to cascading water penetrating solid walls could easily be prevented if landlords cleared gutters annually.
While the law in this area is commendable and has evolved from Proudfoot v Hart, cases of disrepair and statutory nuisance hinge on experts’ opinions: a legal case for disrepair or statutory nuisance cannot be won or lost on the claimant’s evidence alone.
Landlords should follow the advice of William Morris and conduct regular maintenance
We know that, for example, the failure of a horizontal damp-proof course in a Victorian wall dating from after 1875 would be demised to the building owner and could be the subject of a claim for breach of repairing covenant under section 11 of the 1985 act. But who says dampness rises through a failed damp-proof course?
Two important cases discuss the need to repair damage to a structure. In Staves & Staves v Leeds City Council  23 HLR107, it was held there was damage to the plaster and the landlord was responsible. There was a clear failure with the structure that was echoed by the plaster, which was in this case found to be part of the structure. Equally, we could argue that the plaster is not part of the structure where the tenant has damaged it (as discussed in Property Journal December 2016/January 2017, p.37).
Southwark London Borough Council v Tanner  1 AC 1 HCL concerned whether under disrepair legislation a landlord had to improve a property’s sound insulation beyond what was provided at the time of letting. It was held that they did not: anything beyond what was provided at construction or the time of letting is considered an improvement, with which the law of disrepair is not concerned.
The requirements of an expert witness, particularly a single joint expert, can be found in the guidelines and Practice Directions of the Civil Procedure Rules Part 35. An expert witness has a duty to comment only on matters that are within their expertise and highlight those that are not.
It is imperative that surveys are holistic and that expert investigators can prove causation and the source of a defect or problem. Merely identifying symptoms that do not consider building defects, building design and use and occupation runs the risk of misdiagnosis, leading to inappropriate remediation or advice, and, in turn, wasted expenditure and the potential for miscarriages of justice.
Most importantly, surveyors acting as expert witnesses in criminal or civil actions must form a completely unbiased opinion, irrespective of who is paying their fee. Investigations involving dampness and mould are often complex, and causation can be multifarious, so it is important that the expert possesses all the facts. This will often involve an holistic and sometimes invasive survey and testing of various building elements, possibly requiring revisits and ongoing monitoring before a final opinion can be offered.
A landmark case affirms that surveyors acting as expert witnesses can be sued for breach of duty. The Supreme Court’s decision in Jones v Kaney  UKSC 13 overturned the Court of Appeal’s ruling in Stanton v Callaghan  QB 75, where an expert’s immunity from being sued for breach of duty was upheld; Jones removed that 400-year-old protection for such witnesses. Beware the Ides of March.
Mike Parrett is a building pathologist, chartered building surveyor and founder of Michael Parrett Associates. He is an Eminent Fellow of RICS and the author of the Building Pathology Damp section of isurv