Re MR & MRS BICK
1.I am instructed to advise Mr and Mrs Bick in relation to the losses and physical pain they had suffered due to their building works. They bought a cottage in Hadley Vale, Hampshire for $305,000 in November 2000, which was in a down state. They employed Bruce Douglas Partnership (BDP) for a survey report in respect of the property’s valuation and the works to be done. They later gave them responsibility to monitor and inspect all the building works as they were being carried out. They also employed Omnipestroy Ltd (OPT) as the BDP surveyor John Smith suggested to carry out the timber treatment. However, the OPT used the fluid DRM24 for the wood treatment which was caused their serious health problems and to prosecute them as a result they had to sell their house quickly on a falling market for $275,000.
- I am asked to advise as to liability on the part of the BDP and / or OPT, and the losses suffered by Mr Bick such as loss on the house, the wasted expense of the timber treatment, the wasted cost of the holiday in the Canary Islands, the cost of the legal representation at the magistrate’s court and the loss of earning. I am also instructed to advise for pain suffering and loss of amenity but not in detail as the medical reports are not yet available.
Summary of Advice:
- In my opinion it is likely that Mr and Mrs Bick would have a good claim in recovering damages against the both parties the BDP and the OPT. Their first claim against the BDP would have a greater prospect of success both on the basis of a breach of contract and in the tort of negligence. Furthermore, the cause of action in the second claim I think will be stronger and persuasive in contract rather than the tort of negligence. The damages they are likely to recover in my opinion is the cost of the legal representation $3150 and the expenses of the timber treatment $850 out of the losses mentioned by Mr Bick, with an additional sum for pain, suffering and loss of amenity, which I would be able to advise upon when detailed medical evidence is available. Therefore, at this stage in my opinion the whole claim is unlikely to exceed $16000.
Existence of Contracts:
2.There were two contracts between the parties. First one with BDP to inspect and monitor the all-building works and second one was between Mrs Bick and OPT for timber treatment.
- Regarding the first contract, the BDP is highly likely to be vicariously liable to Mr and Mrs Bick for breach of contract. They employed the BDP to survey the property then gave them whole responsibility in respect of the building works, which the court would consider as a contractual obligation. I need further information to advise on contract as it is not clear at this stage whether the contract was oral or written and whether there was any other (express) arrangements between the parties.
- Similarly, the second contract will likely to be considered breach so OPT will be held liable to Mr and Mrs Bick for breach of contract. The OPT might argue that Mr Bick is not contractual party here. However, Mr Bick will be allowed to sue under this contract by virtue of the contract (Rights of Third Parties) Act 1999. He is impliedly identified as a benefiting party from the contract. The Act allows Mr Bick to enforce ‘a term’ of the contract s 1 (1), which plainly includes terms implied in law or in fact, and makes available to him all the remedies that would have been available to his wife as the immediate contracting party s.1 (5).
- If the court is satisfied there were contracts, there will be implied into it a term by virtue of s13 Supply of Goods and Services Act 1982. In first contract, the BDP surveyor John Smith would be expected to exercise with reasonable care and skill as a competent surveyor. Similarly, the OPT in the second contract would exercise with reasonable care and skill to be expected of a specialist timber treatment. However, it is clear that there is no dispute that the both contracts were made in the course of business.
Duty in Negligence:
3.The BDP vicariously owes a duty of care to Mr and Mrs Bick in negligence for the responsibility of all the building works carried out by Mr John Smith because there surveyor was expected to exercise with reasonable skill and care as a competent surveyor, which is an identical duty to that implied in contract, See Para 7 above.
The breaches in contracts and negligence:
4.The BDP is more likely to be found liable to the damages in respect of the failing to monitor and inspect the building works. Their surveyor Mr John Smith first of all failed to arrange for OPT to carry out their works immediately following the completion of Moore’s works, which was a serious breach of the contract due to the failing to provide reasonable supervision. However, the other partner Bruce might argue that John Smith will be personally liable for breach of contract and he has no contact with John as he is in New Zealand, although I am confident that this argument will not be sufficient to escape the liability.
5.Their surveyor Mr John Smith was negligent because he failed to inspect the timber chemicals, when the OPT carried out their job, with reasonable care and skill. Clearly, he was expected to check in the roof space whether the timber treatment properly carried out as a competent surveyor. Although it is not clear from the facts whether Mr Smith was known the particular date when the OPT did their timber treatment, Mr Bick contacted this time directly to Mr Turtle therefore we need more information about Mr Smith’s presence. However, the timber treatment, according to Brian Osborne letter, contained fluid DRM24 with active ingredients ‘Lindane and Dieldrin’. They are both highly toxic to a wide range of animal life and causing allergies in humans. We therefore need an expert investigation on the effect of the chemical used and whether John Smith had any knowledge that the OPT would use the DRM24 and the effect of it. Further, we might need photographs of OPT’s works to use as an evidence to supplement the oral evidence
6.The OPT possibly proposed, according to Brian Osborne letter, Mr Smith to use in the roof spaces Timberclear 90,which they used downstairs, instead of DRM24. Although he would have got the smell if he had gone to the roof space. We need further information about the reliability of Brian Osborne letter, the practicality for using Timberclear 90 on loft timbers and the availability of any other alternative chemicals.
7.The OPT failed to carry out their job with reasonable care and skill, using harmful chemicals for timber treatment which was withdrawn from the market since 1998, as a specialist. They are expected to concern at least with Mr Smith and Mr and Mrs Bick about the negative effect of the DRM24 before they used it, although they might argue that John consented to use DRM24 in the roof spaces. I am still confident that they will be held liable. However, we need further information on such as the conversation between the OPT and John regarding the use of chemicals, how realistic was it to use DRM24, the knowledge of the OPT about the negative effect of the chemicals and the left containers of chemicals using them for an expert investigation.
8.The BDP may possibly raise the issue of contributory negligence; their argument firstly would be that Mr and Mrs Bick moved into the cottage the following day the OPT have finished their works whereas the OPT’s contract put a ten days warning for safety precautions. Mr Bick secondly opened the windows as much as he could when it was too cold to leave them open all day long. As a result, they have headaches, asthma, severe breaths problem and other cold-like symptoms. To consider exactly how much they have been affected due to the contributory negligence is a matter for expert evidence. Therefore, the level of contributory negligence may be in the region of 30%.
9.Which heads of loss may be recoverable will depend on the chain of causation resulting from each breach. The breach of the BDP’s obligation to inspect and monitor leads pain sufferings and other losses mentioned by Mr Bick. The claim can succeed primarily if it can be shown by Mr and Mrs Bick that the BDP’s inspection should have identified the use of DMR 24, which could help the BDP to instruct the OPT using the alternative chemicals therefore we need expert evidence on it.
10.The breach of the OPT’s obligation for using band chemicals leads the pain and losses as mentioned above. The OPT will only be liable if its proved that they have used harmful chemicals and the negative effect of using it was not concerned with John, so need more information and expert evidence.
11.In my opinion, Mr and Mrs Bick will likely to obtain a substantial amount of damages, their damages fall into 5 categories, and each head of losses is considered as follows:
a) Pain suffering and Loss of Amenity:
12.Both parties will likely be liable subject to the medical reports for the breach of their duty, which were caused pain suffering and Loss of Amenity.
b) Loss on the house (at least $94000):
13.It seems to me that the court would consider too remote though it may be within the contemplation of one party (BDP) at the time of the contract because the loss naturally flew from the breach. However, the OPT would argue that they did not anticipate the loss due to the breach so its not within their contemplation. Therefore, we need expert evidence on how worse the effect of the DMR24 was during the selling time and whether they could minimise the negative effect otherwise.
c) The wasted expense of the timber treatment ($ 850):
14.The court would likely to find the expense of the timber treatment would be recoverable although the parties would argue that the money was not wasted as Mr and Mrs Bick had to do their timber treatment anyway and especially when they wanted to sell the house.
d) The cost of the holiday ($786):
15.It doesn’t show direct causal link with the breach, as they would have to remain away from the house while the treatment was carried out and the decision of booking a week’s holiday is Mr Bick rather than Mr John therefore the court will likely found it too remote.
e) The cost of the legal representation at the magistrate’s court ($ 3150):
16.It is likely that the court will find direct casual link with the breaches because Mr and Mrs Bick wouldn’t have to pay the cost If the OPT hadn’t used the DMR24 therefore both party will be held liable.
f) Loss of earnings:
17.The court most likely would consider it too remote because the loss is not within the contemplation of the parties at the time of the contract. He also wanted to retire and had no intention to continue his job. In fact, the parties would argue that the loss does not flow naturally from the breach therefore there was no direct casual link between the loss and the breaches. We further need information regarding the availability of the job in the city.
Further Evidence and Next steps:
18.The damages that I have figures for total $ 4,000. Without a medical report I cannot give full advice on pain, suffering and loss of amenity, but I expect the total award will not be more than about $ 16000. This means that the claim is suitable for the multi track.
19.A letter before claim should be sent to the BDP and the OPT, setting out the bases of claim and the alternative amounts sought. If the defendants do not settle, this claim should be brought in the county court. The amount claimed would permit issuing in the High Court but there is no complexity of law or fact, which would justify the greater expense.
20.As I have stated above in my opinion, expert evidence will be required in this matter from an expert in the effect of the wood treatment fluid DMR24. There should be a single expert where possible, and it would be sensible to attempt to seek agreement on who to appoint with the defendants.
Abdul Mabud Masum
2 November 2003.