Vainker and another v Marbank Construction Ltd and others 

Defective premises – Unfit for habitation – Damages – Defective Premises Act 1972 – Defendants involved in construction of house – Claimant owners alleging defects in “as built” property – Claimants seeking damages against defendants for alleged defects in property under 1972 Act – Whether work causing property to be unfit for human habitation – Whether claimants entitled to damages for distress and inconvenience – Claim allowed In 1999, the claimants, as joint freehold owners, purchased a residential property known as The Croft at Walpole Gardens, Strawberry Hill, Twickenham, TW1. The former house was demolished in 2003 and a new house built on the land for the claimants’ retirement. It was constructed by the first defendant and largely designed by the third defendant architects. The second defendant was engaged as project manager/contract administrator. During the works, complaints were made about the state of the brickwork and water ingress. Following completion, complaints of water ingress continued. Extensive snagging lists were produced and other defects alleged. The claimants claimed damages against the defendants contending, amongst other things, that the defendants were in breach of section 1(1) of the Defective Premises Act 1972 which imposed a duty that work was done in a workmanlike or professional manner with proper materials and so that, as regards that work, the dwelling would be fit for habitation when completed. A prospective claimant had to show that either inadequate work had been completed, or inadequate materials used, such that the dwelling was rendered not fit for human habitation. The mere failure to carry out works in a workmanlike manner, or with proper materials was insufficient to give rise to a cause of action; it had to cause the property to be unfit for human habitation. Held: The claim was allowed. (1) In considering whether the property was, at the time of completion, fit for habitation, it was relevant to take into account that it was intended to be not only a new build but a modern house in design. It was a fact sensitive question, in respect of any particular defect, whether the requirements the claimants had for the property were relevant. It was unlikely that a defect that was only aesthetic or inconvenient would render a dwelling unfit for habitation.   There might be a breach of the duty in respect of a defect which meant that the condition of the dwelling was likely to deteriorate over time and render the dwelling unfit for habitation when it did so. In that case, the dwelling could be said to be unfit for habitation at the time of completion.   In considering whether a failure to carry out works in a workmanlike or professional manner rendered a dwelling unfit for habitation at the date of completion, it was appropriate to consider the aggregate effect of defects. However, minor or aesthetic defects which did not contribute, and were not capable of contributing to, unfitness for habitation could not be relevant in that consideration and damages could not be recovered in respect of such a defect merely because other defects rendered the dwelling unfit for habitation: Rendlesham Estates plc and others v Barr Ltd [2014] EWHC 3968 (TCC); [2014] PLSCS 339; [2015] 1 WLR 3663 considered. (2) Although the duty under section 1 was to achieve the outcome that the dwelling was fit for habitation, there was a constituent element of the duty which was to see that the work undertaken was done in a professional manner. Where the defendant had failed to see that the work was done in such a manner and the result was that the dwelling was not fit for habitation, there was nothing in the statute to limit the damages recoverable in respect of the failure to see that the work was done in a professional manner to the minimum necessary to put the dwelling into a habitable condition.  The damages should more naturally reflect the failure to see that the work was done in a professional manner. In this case, that failure resulted in the installation of toughened rather than toughened and laminated glass; if the latter had been installed the property would have been fit for habitation. The recoverable damages should, therefore, be the cost of making the dwelling fit for habitation in the way it would have been had the services been supplied in a professional manner. (3) Section 6(3) of the 1972 Act provided that “any term of an agreement which purported to exclude or restrict, or has the effect of excluding or restricting, the operation of any of the provisions of this Act, or any liability arising by virtue of any such provision, shall be void”. Clause 7.3.3 of the contract provided the assumption that any other liable contractor or consultant had paid to the client such sums as it was just and equitable for them to pay, having regard to the extent of their responsibility for the loss and damage. The clause was framed in terms of the liability of the architect. There was no express limitation of the basis on which liability arose and the clause would apply to concurrent liability in tort. There was nothing in the clause which would distinguish liability for breach of the 1972 Act and, as a matter of construction, it would apply to that liability.   Clause 7.3 sought to limit that liability to a lesser amount if that was the sum that it was just and equitable for the third defendant to pay, having regard to the extent of its responsibility. Clause 7.3 fell foul of section 6(3) and could not be relied upon by the third defendant in respect of liability under the 1972 Act.     (4) As regards general damages for distress and inconvenience, the top of the range (10 years ago) was £3,000 per annum. It was relevant whether or not the claimant occupied the property and/or had to move out while remedial works were carried out. The claimant was to be treated as a person of reasonable robustness. A particular characteristic of the claimant might be material when, for example, the distress was caused by the presence of children in the defective property. It was relevant to consider both the impact of distinct defects and the period of time over which that defect caused distress and inconvenience. Nonetheless, the court was entitled to take a broad-brush approach: Rendlesham considered. Applying those principles and on the evidence, the claim was allowed. The total sums due would be addressed at a future hearing. Daniel Crowley and Kate Legh (instructed by Fisher Scoggins Waters LLP) appeared for the claimants; Robert Clay (instructed by Fletcher Day Ltd) appeared for the first defendant; Benjamin Fowler (instructed by DWF) appeared for the third defendant. Eileen O’Grady, barrister Click here to read a transcript of Vainker and another v Marbank Construction Ltd and others