Angela Colquhoun -v- Govan Housing Association Limited (A246/01)
Glasgow Sheriff Court, 12 December 2001
Act Nisbet, Govan Law Centre
Alt - Crawford, Simpson & Marwick
Sheriff W. Holligan: - This matter came before me on the debate roll on 23 November 2001. The defenders first complaint concerns the following parts of article 4 of condescendence which are as follows:-
The pursuer and her father have made repeated complaints to the defenders, at their offices in McKechnie Street, and in accordance with their procedures for notification of repairs required, between 1995 to 2000. The defenders frequently failed to attend appointments in response to the pursuers complaints.
The basis of the defenders complaint is that the defenders are suffering prejudice because of the absence of fair notice. No specification is given of the date of the complaints or appointments missed. I was referred to paragraph 9.29 of MacPhail Sheriff Court Practice (2nd edn). The second complaint concerns the following passage from article 5 of condescendence:-
Officers from the defenders local neighbourhood office have visited the subjects over the period of the tenancy. The central heating system in the subjects has not operated properly since the pursuer moved in, despite repeated complaints from the pursuer, and frequent visits from the defenders engineer.
There is no specification as to the dates or the nature of discussions of these dates. The defenders are unable to investigate the allegations because of the absence of any dates. The third complaint concerns the passage in article 7 which provides as follows:-
Furthermore and in any event a reasonable period of time subsequent to complaint in regard to any of the said defects would have been two months at the most.
No reference is given to the practice of other associations or what would be reasonable for the defenders to do. I was referred to Gibson v- Strathclyde Regional Council 1993 SLT 1243. Lastly, the defenders criticised those passages in articles 7 and 8 of condescendence concerning the defenders duty to maintain the subjects in a tenantable and habitable condition, and to keep it in all respects reasonably fit for human habitation. The defenders say that there is no description of the property or the effects of the dampness upon the property.
In reply, Mr Nisbet stated that the pursuers cause of action arises both by reason of implied obligations at common law and also by statute. In relation to the latter he referred to section 113 and schedule 10 to the Housing (Scotland) Act 1987. Mr Nisbet accepted this was not a case of dampness existing in the property at the commencement of the lease, but is something which has occurred during the currency of the lease. Therefore, in order to make out a relevant case the pursuer must show that the defenders had knowledge of the breach in order for the duty to arise and that knowledge is dealt with by way of notification by the pursuer to the defender.
Mr Nisbet referred me to paragraph 9.29 of MacPhail (supra) and to the cases of McMenemy v- James Dougall & Sons Ltd 1960 SLT (Notes) 84 and Avery v- Hew Park School for Boys 1949 SLT (News) 6, two cases which are referred to in the foregoing passage from MacPhail.
Mr Nisbet explained that his client has no written record of any complaints she made to the defenders or indeed any record of the appointments which she made with them. She is relying upon memory and is unable to say anything more to what she has already said.
So far as the procedure for complaints is concerned, the defenders cannot point to any prejudice in the sense that there is no suggestion that there was any other alternative procedure for the making of complaints. He made a similar submission in relation to the visits made by the officers from the defenders local neighbourhood office.
In relation to the two month period, Mr Nisbet distinguished the case of Gibson (supra) which is a reparation case and arose because the pursuer had averred a duty of inspection. In the current case the matter is entirely different. Mr Nisbet referred me to the case of Buchan v- North Lanarkshire Council 2000 HousLR 98. The facts of that case are instructive.
It concerned similar allegations made by a pursuer against a local authority for breach of the local authoritys obligations as landlord because of allegedly damp conditions affecting the premises tenanted by the pursuer from the defender. In that case the pursuer stated that once the defender had been notified of the existence of dampness, the had a reasonable time within which to carry out remedial works and a reasonable time was two months. The evidence for determining that issue seems to have arisen from the pursuers expert and the defenders own witnesses.
In relation to the effect of the property and the damage, Mr Nisbet referred to the pursuers expert report which had been attached to the initial writ when the writ was originally warranted. He conceded that it had not been lodged as a separate production until the last week. I asked Miss Crawford whether she had any record of the report being served with the writ. In fairness to her, she was not able to confirm the position one way or the other but did acknowledge that her papers disclosed a copy of the report itself. Mr Nisbet referred me to the case of Green v- Maxwell Property Ltd 1976 SLT (Sh. Ct.) 65 which, he suggested, by implication suggested that incorporating the report might help to make pleadings relevant.
Mr Nisbet pointed out that the report does specify in the parts of the property affected by damp, both generally and specifically. There are also averments in article 5 and 9 of condescendence which relate to the extent of the dampness.
I shall deal with the first two paragraphs of the defenders note of preliminary plea together. As I have said, the defenders aver material prejudice because of the lack of specification . It seems to me a fairly narrow point to decide. I do not think there is much doubt that, where possible, the pursuer ought to give reasonable specification of complaints and other such matters where the pursuer can do so. However, I pause to observe that the defenders have set out both in answers 4 and 5 their own version of events in relation to the matters averred by the pursuer. They give specific dates of the matters alleged against them and specifically deny any more dates than those to which they refer. The pursuer has already said, admittedly not in her pleadings but by her agent, that she has no written records to support these averments and is unable to give any further specification. This is not a case in which averments are made as to information given to third parties which the defender may wish to investigate separately (see Bolting v- Elias 1990 SC 135). These matters relate to the events concerning the parties to the litigation. The defenders are able to check their own records as to what information they have. I cannot see any material prejudice to the defenders in allowing the case to proceed as presently plead. If the pursuer is unable to give any further specification then this may well be a factor which goes towards determining her reliability and credibility. To deny her the opportunity of proceeding with this matter would seem to me to be unfair, particularly when it is said on her behalf that she is unable to give any further information.
In relation to the defenders reference to Gibson v- Strathclyde Regional Council (supra) it does seem to me that this is an entirely different point from the one with which we are presently concerned. In this case, the pursuers cause of action is based upon breach of contract and also breach of statutory duty. As I have already stated, the pursuer bases her case upon notification given to the defenders followed by a reasonable notice for the defenders to remedy the dampness of which she complains. The pursuer offers to prove that two months was a reasonable time and doubtless there will be evidence led to establish that. The defenders do not seek to establish any other, different time.
Gibson (supra) was a claim for reparation based upon a breach of duty of inspection. In the course of his opinion, the Lord Justice-Clerk (Ross) made reference to the case of Riddell v- Reid 1941 SC 277 in which it was made clear that if a pursuer , in an action of reparation, is going to found upon a defect of inspection then one must define the intervals at which inspection is to take place (at 1246). I do not think that the same considerations apply in the facts of this particular case.
I am also not persuaded that the defenders can point to any significant prejudice in relation to the extent of the property affected by the dampness. It seems to me clear from the pursuers averments she complains that the entire property was damp and that specific areas were particularly badly affected. I cannot see that these averments will cause the defenders any embarrassment or difficulty in their preparations for a proof.
Accordingly, as the defenders have, in my opinion, failed to sustain their attack on the relevancy of the pursuers pleadings I shall repel the defenders first plea-in-law and allow the parties a proof of their respective averments.