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Council and governing body of school win appeal over carbon monoxide exposure

Essex County Council and the Governing Body of Sawyers Hall College were not ‘occupiers’ of a college building where a number of people suffered health problems from carbon monoxide exposure, the High Court has ruled.

Mr Justice Saini’s rulings in Essex County Council & Ors v Davies & Ors [2019] EWHC 3443 (QB) also covered a dispute about damages and costs awarded to nine claimants by HHJ Roberts in the Central London County Court.

The nine claimants suffered injuries while employed on the premises of Havering College, the tenant of Sawyers Hall Lane Campus in Brentwood.

Until 31 August 2012 the governing body was the landlord of the premises, succeeded by Essex County Council when Sawyers Hall College closed.

Saini J noted the main issue at appeal was the scope of “the well-known, but controversial, principle in Cavalier v Pope [1906] AC 428” that a landlord who lets a house in a dangerous state is not liable to the tenant's customers or guests for accidents.

HHJ Roberts decided that Cavalier v Pope did not prevent the nine succeeding in their claim under the Occupiers Liability Act 1957 against Essex and the Governing Body.

In November 2012 the building’s boiler flue “suffered a catastrophic blockage resulting in the escape of very high levels of carbon monoxide”.

HHJ Roberts had accepted evidence that there had been a carbon monoxide leak over two years and found all three parties – Essex, the Governing Body and Havering College – in breach of their duty under the 1957 Act and Havering College in breach of its duties as an employer.

Whatever the outcome of the appeal, Havering College would be liable to the respondents for damages.

Saini J found: “Although the judge was clearly entitled to make the findings of fact that he did, those findings did not give rise to a proper basis for distinguishing Cavalier v Pope and the cases following it.

“In my judgment, it is established (and binding) law that a landlord (acting qua landlord) does not owe a duty of care at common law or under the 1957 Act to its tenant or visitors of its tenant.”

In the county court hearing the nine were awarded general damages ranging from £7,000 to £15,000, which the council, Havering College and the Governing Body appealed as being excessive.

They also argued that HHJ Roberts erred in awarding interest on costs at the rate of 10% above the base rate under CPR 36.17(4)(c).

Six of the claimants were awarded damages exceeding Part 36 offers they had made to Essex and Havering College and so were awarded an additional 10% on damages, interest on damages at 10% above base rate, costs on an indemnity basis and interest on costs at 10% above base rate.

Saini J said he had asked what the alleged error of law was, and counsel for the council and Governing Body “candidly accepted that the basis of this appeal was that the amounts were simply too high” and should be arbitrarily reduced by one third.

“That acceptance was both appropriate and telling,” the judge said. “If one can arbitrarily ‘knock off’ one third of the damages what is the appealable error in the judge having decided to award that extra third?…I have no hesitation in dismissing this appeal.”

He said the nine had clearly suffered serious symptoms during their periods of exposure to carbon monoxide and he could not second guess the damages awards unless they had fallen outside the bounds of reasonableness.

HHJ Roberts was “well within his discretion and I can detect no error” in relation to the interest on costs issues, Saini J added.

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