Caselaw@GLC









 

Mary Galloway -v- City of Glasgow Council

Glasgow Sheriff Court, 12 April 2001

The Sheriff, having resumed consideration of the cause, Sustains the second plea-in –law for the pursuer, quoad ultra Repeals parties pleas; Grants Decree against the defenders for payment to the pursuer of the sum of Two Thousand Seven Hundred and Fifty Pounds (£2,750) sterling with interest thereon at the rate of 8 per centum per annum from 25 February 1997 until payment; and Decerns; Reserves the question of expenses and Appoints parties to be heard thereon on 25 April 2001 at 9.30am within the Sheriff Courthouse, 1 Carlton Place, Glasgow.

Act: Collins, Advocate (for Govan Law Centre)

Alt: Williamson, Advocate (for Glasgow City Council Legal Services)

[Govan Law Centre explanatory note: the following is a brief extract of Sheriff Cathcart’s judgment, which runs to 48 pages in total. The judgment in Galloway is of significance as the defenders unsuccessfully attempted to blame the tenant for condensation dampness. The argument, put forward by the defenders, was that the pursuer should have spend more money on heating, and if so, condensation dampness would not have arisen. The pursuer’s position was that as a matter of Scots law, a tenant had to use her house ‘reasonably’. The fact the pursuer was on income support, and spent as much as she could on heating was not ‘unreasonable use’. The sheriff agreed. As dampness cases are generally an incidence of fuel poverty, structural inadequacies and inadequate heating systems, this case illustrates an important principle of landlord and tenant law  in Scotland].

 

Sheriff Cathcart Q.C:-

FINDINGS-IN-FACT

(1) The pursuer is aged 78 years. The defenders are Glasgow City Council who are statutory successors to, and have assumed the legal obligations and responsibilities of Glasgow District Council.

...

(51) Throughout the tenancy she has been on a low income. At the time of proof she had a pension of £82 per week and Income Support of £32 per week. She had received Income Support since 1997. She retired shortly after moving into the house. In September 2000 she was spending £11.30 per week on fuel by way of fixed payments to the Gas and Electricity Boards.

(52) In 1996 had the windows in the pursuer’s house not been defective, it would have cost in the region of £17.62 per week to heat the house to an average temperature sufficient to achieve a level of reasonable comfort.

...

(54) In 1996, £17.62 was in excess of what the pursuer could reasonably have been expected to afford. It would have been unreasonable to expect the pursuer to spend that amount on fuel.

 

FINDINGS-IN FACT-AND-IN-LAW

(1) The pursuer’s house was not tenantable and habitable nor in all respect reasonably fit for human habitation between January 1992 and March 1997.

(2)  By January 1992 the defenders were in notice that the house was damp and in need of repair.

(3)  The defenders failed to carry our repairs to the house effective to render it tenantable and habitable within a reasonable time, which in all circumstances would have been no more then three months from date of notice.

(4)  The defenders are in breach of their express and implied obligations to repair the house in terms of the lease between the parties.

(5)  As a result of the defenders’ breach of contract the pursuer has suffered loss of property and inconvenience for which she is entitled to reparation.

(6)  The pursuer has not failed to mitigate her loss.

 

NOTE [references to page numbers in original judgment text]

[page 9] In this case the pursuer was represented by Mr Collins and the defender by Miss Williamson, both advocates. On  12 and 13 September 200 I heard evidence on commission from the pursuer. Further evidence was lead on 13, 14 and 15 September, 18 and 19 December 2000 and on 12 March 2001, I heard submissions of the evidence.

...

[page 33] In relation to heatability Mr Collins submitted that the defenders’ averments anent failure to heat on the part of a tenant will only be relevant if the defenders are offering to prove (1) what the tenant actually did as regards heating the house (that is how much she actually spent on fuel) and (2) that that amount is so low as to amount to unreasonable use of the house. The comparison he submitted was not between what the tenant had done and what he could reasonably do, but between what he had done and what he had done and what the most impecunious reasonably anticipated tenant might be expected to have done, because there is a spectrum of reasonable usage by the tenant.

He submitted that reasonable  tenants may spend different amounts on fuel for heating and local authorities must reasonably expect such differences from their tenants. In support he referred to the cases of Burn –v- Monklands District Council 1997 (Greens) HLR 34 per Sheriff Simpson at paragraphs 7.15 to 7.20 and McGuire –v- Monklands District Council 1997 (Greens) HLR 41 per Sheriff Simpson at paragraph 9.07 to 9.11. He submitted that the ‘band of reasonableness’ applied to the tenant’s use of the house and not the local authority’s expectations as to what a tenant might be able to afford. Mr Collins submitted that the defenders’ averments at Answer 7 (heating) and at Answers 3 and 5 (ventilation) fail to meet these tests. In particular there is no offer to prove what the pursuer was actually spending on fuel, nor that such an amount was unreasonably low, that is, out with the bands of reasonable expenditure to be expected of a local authority tenant. He said there were no averments as to the level of ventilation used by the pursuer nor what would be required by her nor of why or how it might be that she was at fault as regards ventilation. Accordingly, I should of sustained the objection to questions designed to elicit evidence regarding any alleged fault on the part of the pursuer for failure to heat or ventilate.

Mr Collins’ esto position was that if the defenders’ averments anent failure to heat were relevant the evidence did not disclose any failure by the tenant in any event. He submitted that the evidence established that between 1986 and 1990 the pursuer did not have the physical ability to heat the house to recognised comfort standards and thereafter until 1997 she was unable to afford to. The submission continued that the pursuer’s use of the house in this regard was reasonable but it remained damp and chronically cold due to lack of insulation and affordable heating.

...

[page 34 C] Mr Collins submitted and emphasised that the test was not what a reasonable landlord might expect, the test is whether the pursuer acted unreasonably in spending what she did. He referred to the pursuer’s evidence about expenditure which was between £6 and £8 per week which was 10 per cent of her income.

Mr Collins summarised his position as follows:-

  1. A house will not be fit for human habitation if notwithstanding reasonable use by the tenant, it is damp, cold and mouldy or cannot be dwelt in with reasonable comfort.

  1. If the cold, damp and mould arise from a lack of adequate insulation, heating or ventilation, the landlord’s repairing obligation will be to undertake such works as are necessary to insulate and to enable adequate heating and ventilation of the house.

  1. A house which is not tenantable and habitable, through the presence of cold, damp and mould, for want of adequate insulation, heating or ventilation, does not become tenantable and habitable merely because by the expenditure of an inordinate amount on fuel the tenant can in theory keep the dampness at bay.

  1. If the landlord wishes to blame the tenant for the condition in the house, he has to place on record the relevant and specific averments of fault, to the effect that the tenant has been unreasonable in respect of her use of the house.

  1. There will be a spectrum of reasonable use of the house by the tenant. If the landlord wishes to attach fault to the tenant for dampness or cold, he has to aver and prove that, the onus resting squarely with him, that she is out with the spectrum.

    ...

[page 47 F] As far as quantum is concerned, having considered the cases to which Mr Collins referred, I am of the view that an award of £500 per annum is appropriate in the present case, producing a total of £2,500 over the five year period between April 1992 and March 1997. I am of the view that the loss incurred by the pursuer as a result of the damage to her furniture, carpets and clothing ca be assessed at £250. Accordingly, I award the pursuer a total of £2,750 with interest from 25 February 1997.