A property comprised a large building let on fully repairing leases of 22 units. The many rain outlets were allowed to become blocked, and water accumulated above one unit before that part of the roof collapsed. The landlord appealed a finding that since the roof was not comprised in any of the leases, there was an implied duty on it to repair the roof.
Held: There was no necessary implication of business efficacy to allow the implication of the term. The tenant was himself in breach for having failed to clear the outlet above his own property. The landlord was liable in nuisance for failing to clear the other rainwater outlets. The 1945 Act did not apply since the tenant’s failure was not tortious. Nevertheless, the tenant was liable as to 10%. ‘More importantly, however, for present purposes, the archaic and draconian rule of the common law which the 1945 Act was passed to override also has no application to the present case, since that rule had no relevance to a claim in, or in my judgment to a breach of, contract which was not also itself tortious. . . The problem which this court faces, on claim and counterclaim alike, is in my judgment a problem of causation of damage. On the claim, the question is how far the damage to its goods which the lessee has suffered was caused by the corporation’s negligence notwithstanding the lessee’s own breach of covenant. On the counterclaim, the question is how far the damage to the corporation’s building which the corporation has suffered was caused by the lessee’s breach of covenant, notwithstanding the corporation’s own negligence. The effect is that on each question, apportionment is permissible. This is the same result as the 1945 Act would produce, but it is not reached through the Act, because the obstacle which the 1945 Act was passed to override is not there on either claim or counterclaim in the present case.’ Croome-Johnson: ‘If the 1945 Act has no application, what is the position on the two claims? The evidence clearly indicates that the damage to the plaintiff’s premises was attributable to two concurrent causes, both operating contemporaneously. One was the defendant’s negligence and the other was the plaintiff’s breach of covenant . . . If the collapse had been caused by the combined negligence of the defendant and some third party, the plaintiff would have been entitled to recover all its damages from the defendant, leaving it to get contribution from its fellow tortfeasor . . . But that does not apply when the other cause comes from the plaintiff himself . . . A tenant who is in breach of his repairing covenant must pay for all the costs of repair or of the damage to the reversion. But the position is different if the covenantee is the selfsame landlord who has caused nine-tenths of the damage to the roof. . . . It is not possible, therefore, to allow both the claim and counterclaim in full and to set off the two awards of damages. Where one is dealing with two contemporaneous causes, each springing from the breach of a legal duty but operating in unequal proportions, the solution should be to assess the recoverable damages for both on the basis of causation.’

Judges:

Dillon LJ, Croom-Johnson LJ, Caulfield J

Citations:

[1988] 1 EGLR 41, [1988] 11 EG 71

Statutes:

Law Reform (Contributory Negligence) Act 1945

Jurisdiction:

England and Wales

Citing:

Distinguished – Barnes v City of London Real Property Co Ltd 1918
The landlord defendants had let various sets of rooms imposing on the tenants an obligation to pay a stated additional rent specifically for the cleaning of rooms by a house-keeper to be provided for the purpose. The agreements placed no express . .
Distinguished – Edmonton Corporation v Knowles (WM) and Son Ltd 1962
The court was able to imply from a provision in a lease obliging the tenant to pay to the landlords ‘the cost . . of painting in a workmanlike manner every third year of the term all outside wood and metal work and other external parts of the . .
Followed – Sleafer v Lambeth Borough Council CA 1959
The plaintiff held a weekly residential tenancy of the defendant local authority. The front door was defective and jammed. The tenancy agreement contained a covenant by the tenant to keep the flat in good and tenantable repair. When the tenant . .
Applied – Sedleigh-Denfield v O’Callaghan HL 24-Jun-1940
Occupier Responsible for Nuisance in adopting it
A trespasser laid a drain along a ditch on the defendant’s land. Later the defendants came to use the drain themselves. A grate was misplaced by them so that in a heavy rainstorm, it became clogged with leaves, and water flowed over into the . .
Cited – Leakey v The National Trust for Places of Historic Interest or Natural Beauty CA 31-Jul-1979
Natural causes were responsible for soil collapsing onto neighbouring houses in Bridgwater.
Held: An occupier of land owes a general duty of care to a neighbouring occupier in relation to a hazard occurring on his land, whether such hazard is . .
Followed – Hargroves, Aronson and Co v Hartopp CA 1905
The tenants of a building of which the defendants were landlords sought damages after a rainwater gutter became stopped up and the defendants failed to clear it out for a few days after receiving notice of the stoppage.
Held: The landlords . .
Distinguished – Grant v Sun Shipping Co 1947
. .
Distinguished – Forsikringsaktieselskapt Vesta v Butcher HL 1988
A contract of insurance and a facultative reinsurance, under which part of the original risk was reinsured, contained warranties in identical terms.
Held: The warranty in the reinsurance policy, which was governed by English law, should be . .

Cited by:

Cited – W Lamb Limited (Trading As The Premier Pump and Tank Company) v J Jarvis and Sons Plc TCC 31-Jul-1998
Contractors built a petrol station, and sub-contractors the underground piping. Leaks developed, and it was agreed to complete repairs, and apportion financial repairs through the court proceedings. In a case where a judge found it difficult to . .
Doubted – Bank of Nova Scotia v Hellenic Mutual War Risks Association (Bermuda) Ltd (The Good Luck) CA 1990
When a contract is to be construed purposively, the court must look to the purposes of both parties, not just one of them. No apportionment was to be applied under the 1945 Act: ‘Similarly, we think that the facts and circumstances of the present . .
Cited – Jackson v J H Watson Property Investment Ltd QBD 7-Jan-2008
The tenant claimant held under a 125 year lease of the defendant. A fault in a light well led to water ingress and damage. The fault was in the landlord’s land but not the flat. The tenant alleged a nuisance by the landlords. The landlord replied . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Nuisance, Damages

Updated: 01 December 2022; Ref: scu.182954