SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN

A2457/05

ABERDEEN, 6^th February 2007

The court having reconsidered the cause, finds the following facts proved.

1. The pursuer is Miss Anne Campbell who resides at and has resided at for the last 15 years 84 Northsea Court, a high-rise block in the Seaton area of Aberdeen.

2. The defenders are a local authority and as such are proprietors and landlords of 84 Northsea Court which is occupied by the pursuer in terms of contract of lease between the pursuer and the defenders.

• In terms of the Scottish Secure Tenancy Agreement signed by both parties, Clause 5.1 reads as follows.

"In this agreement the word repair and repairs includes any work necessary to put the house into a state which is wind and water-tight, habitable and in all other respects reasonably fit for human habitation."

Clause 5.3 reads as follows.

"During the course of your tenancy we will carry out repairs or other work necessary to keep the house in a condition which is habitable, wind and water- tight and in all other respects reasonably fit for human habitation ... all repairs will be done to the standard of a reasonably competent contractor using appropriate material".

Clause 5.2 of said agreement reads as follows.

"If we cause damage to the house or your property in connection with inspections, repairs or improvements ... we may reinstate the damage or compensate you for your losses".

4. Between February and October 2003, the defenders embarked on a major repair and protect programme on the high-rise blocks erected in the Seaton area of Aberdeen, including the building in which the pursuer resided.

5. The work involved repairing spalled concrete from the "bison" panels which make up the external cladding of and outside face of the high-rise block and thereafter coating the outside face and exposed edges of said panels with an impermeable membrane.

6. The system of construction using bison concrete panels provides for panels to be placed one on top of the other with an overlap on the horizontal joints. There is no overlap on the vertical joints and the bison panels are laid side by side. In the vertical joints there is provision to stop the penetration of air and water by means of an air baffle and a neoprene strip between the vertical edges of the panels and on the internal face of said panel joints light duty cement pack is applied by hand and dry.

7. Said neoprene strip is not everlasting. Said dry cement pack has no structural strength.

8. Prior to treating the slabs the defenders were advised that cleaning by way of high pressure water jetting was required.

9. The defenders instructed an independent contractor to carry out high pressure washing of the whole building. There was no detailed evidence of the PSI applied to the external face of the panels during this cleaning process. The work of high pressure jet washing was commenced in about March 2003. The system of access to the high points of the building used by the contractors was a platform hoist system. In order to secure the platform hoist system it was necessary to drill holes in the panels to hold restraining bolts which would be in place only for the duration of the work being carried out.

10. Two holes were bored in the panel forming the external south wall of the pursuer's flat. In about early March high pressure jet washing took place on the external walls of the pursuer's flat. The following day the pursuer found pools of black water on the parquet floors of her living room and the backs of two sofas which had been touching the internal south wall were also found to be damp.

11. The pursuer formed the view that water had penetrated her flat as a result of the remedial works being carried out and in particular she suspected that the holes drilled in the wall on the outside to facilitate the use of a hoist system had allowed the water to come in.

12. The holes drilled did not allow the water to penetrate into the pursuer's flat.

13. The high pressure jetting of, or in close proximity to, the vertical corner joint between the south and west external walls of flat did create an ingress of water to the pursuer's flat.

14. The pursuer was not immediately aware of the extent of the ingress of water.

15. Some weeks later the pursuer became aware of mould patches forming on the internal walls and on the back of the sofa covers.

16. The saturation of the plaster behind the pursuer's wallpaper on the south and west walls of the living room did not show through that wallpaper.

17. Some two months later part of the paper was stripped off and revealed large wet patches of plaster and also some "tide marking" where previously saturated plaster had dried back to the still wet southwest corner. It can be reasonably inferred that the plaster on the south and west internal walls became saturated for the full height of the room spreading from the southwest corner.

18. Mould spores are to be found in normal atmosphere. Mould spores develop in damp conditions.

19. Damp conditions can arise in a room or portion of a room where there is little circulation of dry air. Air which is carrying moisture will deposit that moisture on cold surfaces when the temperature of the surface in contact with the air is below the dew point of that air. That cold surface will thus become damp or damper.

20. The degree of moisture borne in the air in any room will depend on the amount of moisture available to be absorbed by air and the temperature of the air.

21. Mould did form on some of the surfaces of the pursuer's living room which were less exposed to air movement. In these areas condensation occurred unknown to the pursuer as the air in her living room had become much more moist as the result of evaporation from the wet plaster of the south and west walls. During the first half of 2003, the general lifestyle of the pursuer had not changed. She had no problem with mould prior to March 2003. She has had no problem with mould since the plaster dried out.

22. The condensation on her walls and the subsequent mould damage was not caused by the pursuer's failure to adopt an appropriate standard of house maintenance. The mould arising from the condensation was a direct result of plaster having become saturated.

23. Saturation of the plaster was caused by water from the high pressure jetting hoses entering the vertical joints, penetrating the vertical neoprene strip and dry cement pack between the slabs forming the southwest corner of the pursuer's flat. It was reasonably foreseeable that a high pressure water jet directed into the vertical seams between the slabs would penetrate the neoprene strip and dry cement pack.

24. The defenders failed to keep the property wind and water-tight during the cleansing operation being carried out on their instructions in March 2003.

25. Accordingly, the defenders are in breach of Condition 5.3 of the contract of lease. The defenders failed to keep the house wind and water-tight (c.f. 5.7). The defenders failed to keep the property wind and water-tight particularly during the cleaning operation being carried out on the instructions of the defenders in March 2003.

26. Accordingly, the defenders are in breach of their obligations in terms of said agreement. As a result of said breach the pursuer has suffered loss.

27. The loss sustained by the pursuer has been agreed between the parties to be reasonably stated at the sum of £2,900.

28. Accordingly, finds it established that the pursuer has sustained loss as a result of the defenders' breach of contract and is entitled to be compensated for that loss. Therefore upholds the pursuer's pleas-in-law 1 and 2; repels the defenders' pleas-in-law 1, 3, and 4, upholds the defender's plea-in-law 2. grants decree for payment to the pursuer by the defenders of the sum of £2,900 and appoints parties to be heard on the question of interest and expenses on 28^th February 2007 at 10.00 am within the Sheriff Court House, Castle Street, Aberdeen.

NOTE

The evidence on this matter came essentially from four witnesses, the pursuer herself and Keith Moir, a buildings surveyor, Mike MacIntosh who is the building consultant employed by the defenders, Alan McPherson an Energy Assessor employed by the defenders.

I had no difficulty in finding all the witnesses credible but I was more persuaded by the conclusions of Keith Moir. Mr Moir is a qualified buildings surveyor experienced in tracing causes of damp in buildings. The defenders' witness who viewed the property after complaints by the pursuer were probably quite right to conclude that the damage complained of was caused by condensation. The real issue is why there should be condensation in this particular flat.

I have no doubt that both Mr McPherson and Mr McIntosh in their experience of looking after Council properties have often come across properties where lack of ventilation has allowed a build up of humidity in internal air and subsequent condensation and mould damage. When they examined the pursuer's flat they were seeing some signs they associated with bad housekeeping. There was also indication of good housekeeping but the attention was focussed on the former. In addition the pursuer had made her own diagnosis and attributed the extra water in her house to the holes drilled in the wall to allow the fixing of bolts to restrain the cables of the hoist system which was being used by the contractors involved in high pressure jetting of the building.

There was no evidence from any of the experienced or qualified witnesses to support that diagnosis and the defenders' employees were correct to dismiss it as a probable cause of the ingress of water moisture to the pursuer's flat.

They then reached a conclusion based on rejection of the pursuer's theory and their own experience of complaints of mould in other properties. Mr McIntosh was of the view that there was no correlation between the works being carried out and the damage. He examined the horizontal joints and the window frames and eliminated them from suspicion as being a source of ingress of water. Intriguingly while Mr McIntosh was aware of the detail of the construction method he did not appear to consider the extent to which the weather proofing of the vertical joints which had no concrete overlap might have been affected by the high pressure hosing. Mr McPherson did not have the technical building experience to be able to comment in detail. In my view the defenders' witnesses' explanation is based on insufficient information and their conclusion is therefore flawed.

I accepted the pursuer's explanation that she had never had a condensation problem in any of the fourteen years of prior occupancy of the flat nor in the years since the walls had been stripped of paper and allowed to dry out.

The examination by Mr Moir revealed information that the plaster of west and south internal walls had been saturated. The tide-marking observable after the paper had been stripped off showed that the walls had dried back towards the south western corner. At the time of this examination the walls were still damp at that corner.

The construction of the external walls was such that the vertical faces of the cladding panels known as bison slabs abutted one to another leaving a small gap. That gap was filled by the insertion of neoprene baffle to prevent wind and rain penetrating. Neoprene is not everlasting and deteriorates with age. The internal face of the neoprene packed gap was dressed with dry pack cement. Dry pack cement has no structural strength.

The balance of probability favours the conclusion that at some point in the jetting process the high pressure jet had been directed into vertical joint and not been repelled by the neoprene baffle or the dry pack and water from the jetting process had penetrated from the outside to the inside of the slabs and then been absorbed by the internal plaster walls.

The paper decorating the walls of the living room - the south west room of the flat - disguised the fact that the plaster beneath it had become saturated. The saturation caused the moisture content of air in the room to rise and created conditions in which mould spores could develop. The dampness in the sofa coverings was probably caused by natural capacity of cloth to absorb and a "wicking" effect when the sofas were touching the walls.

Parties were agreed on what compensation should be paid to the pursuer if the pursuer were to succeed in establishing a liability in the defenders. The defenders plainly failed to keep the pursuer's flat "wind and water-tight" and the pursuer has succeeded in proving liability for damage.

I accordingly have decerned for the agreed damages at £2,900 and continued the hearing to allow parties to address me on interest and expenses.

The issue of negligence was barely touched upon in submissions which reflects the absence of any attempt to establish negligent behaviour at the proof and I have simply upheld the defenders' second plea to recognise that element of the pursuer's case on record as not proven.