| Date | 2 November 2005 |
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| Judgment | Panesh Mistry v Mr and Mrs Thakor and Michael Roberts, CA 5 July 2005 |
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| The Issue | The tort of nuisance and the duties of chartered surveyors. |
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| Implication |
Building
owners are potentially liable for the public nuisance which may be
created by defects in their buildings. A chartered surveyor who fails
to carry out adequate inspections cannot avoid liability in contribution
proceedings by simply advising that the client should take alternative
advice. |
printIn the English common law, a "tort" is a breach of a non-contractual duty for which the law provides a remedy. The term itself comes from the French language and means literally "a wrong". There are a number of categories of torts, the broadest of which is negligence. Another example is the tort of nuisance which allows plaintiffs to sue for acts that interfere with the use and enjoyment of their land. In the recent case of Mistry v Thakor and Roberts, the Court of Appeal had to re-examine a decision concerning an action brought in the tort of nuisance. In July 2000, Mr Mistry was walking along Belgrave Gate, a street in the centre of Leicester. As he passed in front of a building owned by Mr and Mrs Thakor, two pieces of concrete cladding fell from the building, struck him and caused him serious injury. A claim was brought on Mistry's behalf in nuisance, which may seem an odd term to use in the circumstances, but then lawyers are quite happy to prepare a 20,000 word report of instructions to a barrister and describe this as a "brief". In defending the action against them, the Thakors brought in as third party defendant, Mr Roberts, a chartered surveyor. The Thakors owned a number of properties and employed Mr Roberts as their property manager. Mr Roberts' terms of engagement included a duty to inspect the Thakor's buildings at least twice a year. The Thakors contended that Roberts was in breach of this duty, without which the injuries to Mr Mistry would have been avoided. The building was built in the 1960s. On the front elevation along Belgrave Gate at both first and second floor level, there were courses of concrete facing panels each roughly 100 x 50 centimetres in size and weighing about 50 kilos. The panels were fixed to the wall by metal fixings and seated upon a steel angle which acted in effect as a shelf. In court, the experts agreed that the panels had fallen due to corrosion of the fixings behind the panel. The effect of the corrosion had been to push the bottom edges of the cladding panels away from the building. One of the experts had commented that "the movement would obviously sever any bond with the original cement mortar bedding and the slabs that fell must have slipped off the corroded edge of the base angle". It was not therefore in dispute that the building was unsafe and a public nuisance up to the point when the panels fell into the street causing the accident. The case against the Thakors in nuisance depended upon whether they could be presumed to have known about the state of the building. The case against Roberts was that he had failed to identify the dangerous state of the panels, failed to have the dangerous state rectified and failed to inform the Thakors of the dangerous state or the steps which needed to be taken. In their defence, the Thakors claimed that Roberts did not know of the relevant defects to the panels and accordingly no knowledge of those defects could be imputed to them. Their duty as building owners had been discharged by instructing a reputable chartered surveyor to manage the property for them. The judge at first instance rejected this defence. Roberts must have known about the potential failure of the panels by a simple visual inspection from the ground floor. The fact that he attached no importance to the obvious defective state of the panels did not alter the fact that he had sufficient knowledge of the likelihood of a public nuisance. For the purposes of the law that knowledge would be imputed to the building owners, the Thakors. An interesting aside in all of this is that the movement of the defective panels was clearly visible from street level. This plainly merited closer inspection where the corroded fixings would have been evident and the need to take remedial measures obvious. Unfortunately, Mr Roberts had been unwilling to climb scaffolding. Not using the scaffolding which had been erected on the face of the building was described by one of the experts as bizarre. Roberts had recommended to the Thakors that to comply with health and safety a building contractor should be engaged to look at the panels. It became clear during the trial that when using the expression 'health and safety' Roberts was not concerned with the health and safety of the public, but his own health and safety. The judge was highly critical of Roberts for his refusal to climb scaffolding which he described as extremely unusual conduct on the part of a chartered surveyor. He proceeded to find the Thakors liable for the claimed damages and in the third party proceedings, held Roberts to be responsible for a contribution of 80% of those damages. The Court of Appeal refused to interfere with the discretion exercised by the judge to award damages on that basis. Lord Justice Pill noted that professional men are employed to deal with things normally expected of them in their profession. Mr and Mrs Thakor did not expect that they would have to go to someone else to do the comparatively elementary task of climbing scaffolding to inspect their building.
CJ-0543
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