Personal injury court absolves landlord in claim that failure to maintain property exacerbated tenant’s asthma

Pursuer Emma Macfarlane, who rented a property in Paisley from defender Iain Kennedy with her partner in 2023, brought a case under the Occupiers Liability (Scotland) Act 1960, with quantum agreed at £2,500. The defender denied liability and advanced an alternative argument of contributory negligence based on the pursuer’s failure to adequately ventilate the property.

The case was heard by Sheriff Charles Walls in the All-Scotland Personal Injury Court, with Shields, solicitor advocate, appearing for the pursuer and Berlow-Jackson, solicitor, for the defender.

Unusual structure

The pursuer and her partner Lewis Mehaffey moved into the let property, which was located on the ground floor of a building and had gas central heating, in January 2023. At the beginning of that October, she notified the defender of mould on the study wall, and he attended the property to clean a blocked gutter which he thought was the source of the damp. However, issues with mould continued and by November the pursuer had been given inhalers to help with her asthmatic symptoms.

An expert witness was led for the pursuer, Mr Donnachie, who had been instructed to prepare a damp report on the property. On a visit to the property in December 2023, he used a device to measure damp but produced photographs of the meter in position rather than records of the readings. A survey of the property was also instructed by the defender, whose witness Mr Stewart identified no signs or symptoms of dampness. He stated that the unusual structure of the property, which involved use of metal rather than wood in certain wall and sub-floor areas, meant it was not possible for the property to develop rising damp.

The defender, who had worked in the building trade for over 40 years and was himself qualified to assess issues with rot, said that he had taken steps to improve ventilation in the roof area because the pursuer had not been properly heating or ventilating the house. Mr Stewart further noted a ventilation issue at the subfloor southwest corner of the property which might explain elevated moisture levels that required ongoing monitoring.

The defender and Mr Stewart both believed the dampness issues alleged to have been experienced by the pursuer would have been caused by inadequate use of heating and ventilation. Evidence was also given by the current tenant of the property, Ms McMillan, who said that she had had no issues with damp or mould since moving into the property.

A lack of evidence

In his decision, Sheriff Walls said of the pursuer’s evidence: “I found all the factual witnesses to be generally credible and reliable. However, I do think that the pursuer and Mr Mehaffey overplayed to some extent, the steps they took to ventilate the property, particularly in view of the position which is that the subsequent tenant has not had any issues with dampness or mould, and the lack of evidence to demonstrate that there has been any structural work done to the property since the pursuer left.”

He added on the expert evidence: “I prefer Mr Stewart’s evidence on the structure of the property, including the significance of the use of metal in the walls and subfloor area and the existence of a Damp Proof Membrane. Mr Donnachie’s report and explanatory drawings proceed on an entirely different basis. I felt he was perhaps overly dogmatic in holding to his original conclusions and using Mr Stewart’s report to support that. Of course, the pursuer’s position is that Mr Stewart’s report is of no relevance as it was prepared after the event. However, leaving all of that aside there is another issue with his evidence which is that he was only asked to offer an opinion based on his findings from his visit on 1 December 2023. He was not asked, and offered no view, on whether there had been dampness or moisture prior to then and if so for how long.”

Considering the effect of this on the pursuer’s case, Sheriff Walls said: “The primary problem for the pursuer is a lack of evidence I can accept in relation to the existence of damp of the sort referred in the pleadings and Mr Donnachie’s reports; the cause of the moisture and mould; and a causal link with any alleged breach of duty on the part of the defender. The pursuer’s case is that the defender ought to have instructed an independent report once the problem emerged. Leaving aside that this is not pled, the averment is that the defender himself ought to have carried out an inspection, that is the beginning and end of the pursuer’s case.”

He concluded: “As I prefer the evidence of the defender in relation to the rising damp and wet rot allegations, I can infer that any such report would not have identified these as a cause of the moisture. That leaves the question of inadequate ventilation, but other than in relation to the bathroom fan, the pursuer has led no evidence on what the defects in ventilation were or what steps ought to have been taken by the defender, in the exercise of reasonable care, to improve ventilation. There is no evidence therefore to point to what such a report may have found or recommended. The 1960 Act does not impose strict liability and it is not enough for the pursuer to point to the existence of moisture and mould to establish liability.”

Decree of absolvitor was therefore pronounced in favour of the defender.