Panesh Chimanlal Mistry v Thakor & Ors

An owner may remain liable in nuisance to third parties for a dangerous condition existing when premises are let, where the owner knows, or is imputed with knowledge of, the basic facts indicating the danger. Knowledge of the complete consequences or precise remedial steps is unnecessary, and a repairing covenant does not itself discharge liability. An owner who receives professional advice to investigate a possible danger and fails to act may incur an independent causative breach. The court left open whether knowledge that an agent ought to have acquired, but did not acquire, can be imputed to the owner. Appellate courts should be very reluctant to alter trial-level apportionments under the 1945 Act.

On 30 July 2000, concrete cladding fell from premises at 36/38 Belgrave Gate, Leicester, striking Panesh Mistry while he was on the public highway. He brought a claim in nuisance against the property owners, Bahadursinh and Hasmukhben Thakor. At trial before His Honour Judge Inglis on liability, judgment was entered against the owners, while the claim against former tenant Carphone Warehouse UK Ltd was dismissed.

In Part 20 proceedings, the owners obtained judgment against their property manager, Michael Roberts, to the extent of 80%. The owners appealed their liability to Mistry. Roberts appealed the apportionment, seeking a greater contribution from the owners. The central issues were the owners’ actual or imputed knowledge, the effect of their failure to follow professional advice, and the proper apportionment of responsibility.

Disposition and liability

1. Both appeals were dismissed unanimously. The judgment against the Thakors remained in force, as did the finding that Roberts was responsible for 80% of the contribution. The appeals were dismissed with costs, subject to detailed assessment if not agreed.
2. The trial judge’s findings were upheld. The cladding was unstable because of corrosion and constituted a public nuisance. Roberts could and did see the relevant observable features, including defective joints, panels out of vertical and bowed lower edges. Those findings were not successfully challengeable.
3. The principles in Brew Brothers Ltd v Snax (Ross) Ltd [1970] 1 QB 612 applied. An owner remains liable to third parties for the effects of a nuisance of which the owner has knowledge when granting a lease. A full repairing covenant or the grant of a new tenancy does not, by itself, discharge that liability. The imputed knowledge included not only the observed defects but the danger which necessarily followed from them. Knowledge of the entire consequences or precise remedial action was unnecessary. The reference to St Anne’s Well Brewery Co v Roberts (1928) 140 LT 1 supported the inclusion of presumed knowledge where reasonable care to ascertain the relevant facts had not been used.
4. There was also an independent breach by the owners. Roberts’s letter of 4 March advised that a building contractor should examine the front panels. The owners failed to act on advice which gave sufficient notice of possible danger. This breach was causative and did not depend on imputed knowledge. The court expressly left open whether knowledge which a professional agent ought to have acquired, but did not acquire, should be imputed to the owner, and whether appointing a reputable surveyor would otherwise discharge the owner’s duty.
5. Under the 1945 Act, an appellate court should be very reluctant to interfere with a trial judge’s apportionment after accepting the judge’s findings of fact. The trial judge had seen the witnesses and assessed their evidence and conduct. The 80:20 allocation was appropriate: Roberts bore the primary responsibility because of his unusual refusal to inspect the scaffolding, while the owners contributed by failing to act on his advice.

1. Court of Appeal (Civil Division) — In [2005] EWCA Civ 953, both appeals were dismissed with costs.
2. High Court of Justice, Queen’s Bench Division, Nottingham District Registry — On 21 October 2004, His Honour Judge Inglis, sitting as a deputy judge, found the owners liable in nuisance, dismissed the claim against Carphone Warehouse UK Ltd, and apportioned the Part 20 liability between the owners and Roberts at 20:80.