Bole & Anor v Huntsbuild Ltd [2009] EWCA Civ 770

Case No A1/2009/0712[2009] EWCA Civ 770
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
TECHNOLOGY & CONSTRUCTION COURT
(HHJ TOULMIN CMG QC)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Monday, 15 th June 2009
Before
LORD JUSTICE WALLERLORD JUSTICE CARNWATH
Between
BOLE & ANRAppellantsHUNTSBUILD LTDRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr R Hussain (instructed by Browne Jacobson LLP) appeared for Appellants. for THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
Judgment
[1]This is a renewed application for permission to appeal. The applicants were the second defendants in the action. The claimants were the owners in residence of a house in Huntingdon, which was constructed by the first defendant, Huntsbuild, and sold to the claimants in 2001. Huntsbuild had retained the second defendants, a firm called RMA, as structural engineers to advise on the depth of the foundations of the property. The claim was that, due to the foundation being constructed at an insufficient depth, the property had suffered and continued to suffer from damage caused by foundational movement or “heave damage”. A claim was brought against Huntsbuild for breach of contract, breach of a duty of care and breach of duties owed to the claimant under section 1(1) of the Defective Premises Act 1972. The claim against RMA was solely for breach of its duties owed under section 1(1).[2]Unfortunately, Huntsbuild has since gone into liquidation and it did not take part in the trial. So the claims against them were of no value and everything really turned on the claim against RMA. But, as I have indicated, that stood or fell on the effect of the 1972 Act. The Act, which followed a Law Commission report, was designed to improve the remedies of purchasers of dwelling houses in circumstances where they did not have claims in contract or tort against a particular defendant. So it was apt for this case. However, the scope of the cause of action is relatively limited. It applies under section 1(1), where a person takes on work for or in connection with the provision of a dwelling house, and the duty is owed to every person who acquires an interest in the dwelling, and the duty is:
“to see that the work which he takes on is done in a workmanlike or, as the case may be, professional manner, with proper materials and so that as regards that work the dwelling will be fit for habitation when completed.”
In this case, the argument has turned on the meaning and effect of those last words.[3]The judge reviewed the caselaw, such as it is, and summarised the law at paragraph 38. He said that the finding of unfitness for habitation is a matter of fact in each case. That is not controversial. But he went on to say that unfitness for habitation extends to what Lord Bridge had described, in a case which I will mention in a moment, as “defects of quality” rendering the dwelling unsuitable for its purpose, as well as “dangerous defects”. His conclusion on the facts of the case was on the one hand (para 151) that, although the foundations towards the centre of the house were inadequate to prevent heave at the time of construction, the heave movement was unlikely to cause the property to reach a structurally dangerous condition, and the risk of collapse was low. On the other hand, he found (para 176 to 179) that the building suffered from:
“... a fundamental defect, namely, the inadequacy of the foundations.”
He said, considering the defects as a whole, that the house had suffered from widespread cracking as a result of heave, that the effects would be likely to continue for between 14 and 20 years, depending on which expert account was preferred, and that the only way to be certain of stopping the heave immediately, and providing the house with the stable foundations which the claimants could have reasonably expected, was to underpin it. He said that it was an indication of the extent of the damage that, even on the applicants’ expert’s solution, they would have to move out from the house for up to six months so that the damage could be repaired. He concluded at 179:
“In all the circumstances, applying the test of whether the house was unfit for habitation in the sense of being unsuitable for its purpose, I have no hesitation in finding that the house, as built, was unfit for habitation under Section 1 of the DPA in that it was built with unstable foundations which resulted in movement and cracking and other defects caused by heave.”
He found that the appropriate way to remedy the matter was to provide underpinning and a piled raft solution, and he awarded damages for that and consequential matters of some £218,000.[4]Mr Hussain, who has appeared before us, challenges the decision on, in effect, three grounds. He says that the judge applied the wrong test, first because he treated the fact that they would have to move out for six months as being a material factor in deciding whether the house was unfit; and secondly, in any event, in applying a test which was based on suitability for purpose, rather than the test of unfitness for habitation. Thirdly, he says that the judge failed to analyse the various pleaded defects , on which the experts had reached a considerable measure of agreement, to decide which of those items truly affected the fitness for habitation of the house. He pointed, for example, to items relating to the kitchen, which, although making it not a particularly attractive place, nonetheless did not make it unfit for the purpose of cooking.[5]It seemed to me at first sight that the judge had been entitled to take a broad view of the matter and that this clearly was a property which was seriously defective, and was exactly the sort of situation which the draftsman of the 1972 Act had in mind. However, I am persuaded, on balance, that there are matters which would justify full consideration by this court. I am not particularly impressed by the point about the time needed to move out. It seems to me that the judge was simply treating that as an indication of the extent of the defects, rather than a matter which, in itself, would make the house unfit. However, I have some difficulty with his approach to the speech of Lord Bridge, which I have mentioned, and which he relied on in his summary. That is a case called D&F Estates v Church Commissioners for England [1989] 1 AC 177. It is not a case on the Act. It is a very important case on the duty of care in relation to building works. But in the course of an extensive review of the law, Lord Bridge made some comments on the 1972 Act and on the Law Commission report which had preceded it.[6]Mr Hussain points out that the judge (para 22) seems to have understood that Lord Bridge was inferentially adopting the approach of the Law Commission report at paragraph 34. The passage in question is one which talks about the “fit for habitation” test, and appears to link it to a test of unsuitability for purpose. However, Mr Hussain says that that is taken out of context, and that the Law Commission were not seeking to equate the two tests; and, more significantly, Lord Bridge does not appear to refer specifically to paragraph 34, nor to adopt it as a test in relation to a matter which it was not an issue before him.[7]For a statute which has been on the books since 1972, there is a surprising dearth of authority on the precise meaning and effect of the “fitness for habitation” test. We were referred to a decision of HHJ Esyr Lewis QC in Thompson v Clive Alexander 59 BLR 77. That was considering the question whether the test of fitness for habitation was an essential part of the test. The judge decided that it was, although he accepted that it is possible to read the section in a disjunctive way; and indeed I think he thought that was probably the more natural interpretation of what the Law Commission were saying.[8]It does seem to me at least to be arguable that, as Mr Hussain says, the judge should have taken a more specific approach to the question of fitness for habitation and considered rather more fully whether the items, individually or cumulatively, met that test. I certainly have little sympathy for the idea that he had to go through every item and decide whether that item in particular caused unfitness. In a case like this, one must be able to look at the matter to some extent in the round. But in relation to a building where it is found that there is no immediate risk of collapse and there are relatively limited items which actually cause potential danger, it does seem to me that there is an arguable question as to whether the test set by the statute was satisfied, on which there is at the moment no clear authority, certainly at this level; and since it is a point of some general importance, I would grant permission.[9]I agree.

Order

Application granted.