Abdel-Hadey Mahmoud Bayoumi v Protim Services Limited

Under section 1(1) of the Defective Premises Act 1972, a claimant need prove that defective work caused the dwelling to be unfit for habitation. The work need not be the sole cause. A significant contribution is sufficient, although other contributing factors must be considered. The statutory duty may support recovery of natural consequential losses, including loss of use and enjoyment and reasonably proved travel costs. A remedial arrangement may also be contractual despite the absence of payment where the parties’ consideration consists of forbearance from complaints or cooperation in investigating and remedying defective work.

The claimant purchased a property affected by persistent penetrating damp caused by defective tanking work. The defendant contractor carried out further remedial work and installed a dehumidifier. The premises were subsequently flooded when the dehumidifier failed to switch off as the collection bucket filled.

The York County Court awarded the claimant £17,148.94 in damages for breach of contract, negligence and breach of the Defective Premises Act 1972. The defendant appealed, challenging the contractual basis for supplying the dehumidifier, the finding that it was faulty, the statutory causation analysis, and several heads of damage.

Lord Justice Swinton Thomas delivered the judgment of the court. Lord Justices Mummery and Leggatt agreed. The appeal was unanimously dismissed.

1. Dehumidifier arrangement. The supply and installation of the dehumidifier formed part of the overall remedial work undertaken after the defendant’s defective performance. It was contractual notwithstanding that no charge was made. Consideration consisted either in the claimant’s agreement not to pursue his complaints if the defects were remedied or in his agreement to the installation so that the defendant could investigate and undertake further remedial work.
2. Flooding and defect. The trial judge was entitled to find that the flooding resulted from the dehumidifier’s collection bucket overflowing. The machine had an automatic timing mechanism which should have switched it off when full. Once flooding by the machine and its failure to operate properly were established, the only sensible conclusion was that a fault in the machine caused the flooding, even though no fault was found on later examination.
3. Statutory duty. Section 1(1) of the Defective Premises Act 1972 did not require the defendant’s work to be the sole cause of the dwelling’s unfitness. The question was whether, on the balance of probabilities, the defendant’s failure to perform the work in a workmanlike manner caused the dwelling to be unfit for habitation. Other factors, including condensation, had to be considered, but a significant cause or factor was sufficient. The court did not read Andrews v Schooling [1991] 1 WLR 783 or Miles Charles Thompson and Partners v Clive Anderson and Partners (1992) 8 CLJ 199 as requiring a different conclusion.
4. Damages. Damages under section 1 included natural consequential loss. Loss of use and enjoyment and travel expenses were recoverable if proved. The pleading that the claimant had been unable to let the property because of the defects sufficiently identified a claim for loss of use, and the judge could award loss of use and enjoyment after rejecting the proposed rental measure.
5. Appeal on facts. The trial judge had heard extensive evidence, made specific findings and fairly reduced the claim. The defendant faced a heavy burden in seeking to upset those findings or particular heads of damage. The appeal was dismissed with costs, the stay was removed, and payment out of the money in court was ordered with interest at the judgment rate.

1. Court of Appeal (Civil Division): appeal dismissed. The stay was removed and payment out of the money in court was ordered with interest at the judgment rate.
2. York County Court: His Honour Judge Galpin gave judgment on 21 October 1994 for the claimant in the sum of £17,148.94, together with interest and costs.