Bole & Anor v Huntsbuild Ltd

Under section 1 of the Defective Premises Act 1972, fitness for habitation is fact-sensitive. The dwelling must be assessed as a whole, considering the combined effect of defects and any fundamental defect causing them. The court need not decide whether each defect or room is separately unfit.

A lengthy period during which occupants must leave for remedial work may be highly material, especially where structural stability is affected. Damages remain limited to foreseeable loss contemplated by the statutory duty, but may include the cost of remedying all defects caused by a fundamental defect where those costs flow from the dwelling’s unfitness.

Huntsbuild agreed to construct and sell a house to the claimants. RMA, a firm of structural engineers retained by Huntsbuild, investigated the site and designed the foundations. Cracking appeared in 2002 and was attributed to inadequate foundations causing ground heave.

HHJ Toulmin CMG QC found RMA in breach of section 1 of the Defective Premises Act 1972 and awarded £218,616.91. RMA appealed, challenging the test for unfitness, the judge’s consideration of the defects collectively, the measure of damages, and the factual basis for the finding of unfitness. The central issue was whether the dwelling was unfit for habitation as built.

Appeal dismissed. Dyson LJ gave the leading judgment. Longmore LJ and Pill LJ agreed.

1. Fitness for habitation. The question whether a dwelling is unfit for habitation is fact-sensitive. The court may assess the dwelling as a whole and consider the combined effect of defects, particularly where they result from a common fundamental defect. It is not required to analyse every defect or room separately.
2. Relevant considerations. The need for the occupants to leave the dwelling for a substantial period during remedial works is not invariably relevant. Where the defect concerns the fundamental stability of the dwelling, rather than a cosmetic or stylistic matter, the likely need to vacate for about 12 months is highly material. The phrase unfit for purpose adds no separate test. It refers to the ordinary purpose of a dwelling, namely safe and convenient occupation. Unfitness may include defects of quality that make the dwelling unsuitable for habitation, as well as dangerous defects.
3. Damages. Referring to Gorris and Scott (1874) LR 9 Ex 125, the court accepted that damages for breach of a statutory duty are limited to foreseeable loss and damage contemplated by the statute. That limitation did not require an item-by-item award. Once the inadequate foundations were found to have made the dwelling unfit and to have caused widespread cracking and other defects, the cost of remedying all defects attributable to the foundations was a foreseeable consequence of the breach.
4. Conclusion. The combination of fundamentally defective foundations, ground movement and visible defects provided a sound factual basis for the finding of unfitness. All four grounds of appeal were rejected and the appeal was dismissed.

1. High Court of Justice, Queen’s Bench Division: HHJ Toulmin CMG QC, on 30 March 2009, found RMA in breach of section 1 of the Defective Premises Act 1972 and awarded £218,616.91. No citation for that judgment was stated.
2. Court of Appeal (Civil Division): Dyson LJ, with Longmore LJ and Pill LJ agreeing, rejected all four grounds of appeal and dismissed the appeal: [2009] EWCA Civ 1146.