Mr Mistry was walking along a pavement when he was struck by concrete cladding which had fallen from a building. He issued proceedings against the owners and the property manager (“PM”) of the building. The trial Judge gave judgment for Mr Mistry against the owners of the building who in turn, having issued Part 20 proceedings, succeeded to the extent of 80% against the PM.
It was agreed that the concrete cladding had fallen as a result of corrosion. It was also agreed that the frontage of the building was in a dangerous condition and that the panels were unstable and liable to fall. The terms of engagement of the PM included a duty to make two inspections per year and an obligation to act "in all respects and do all such things as could reasonably be expected of a professional manager of a property of this type". The claim against the PM was that he failed to identify the dangerous state of the panels and therefore that he failed to have that dangerous state rectified. The PM wrote to the property owner in March 2000 making it plain that he would not examine the building using a scaffold. He recommended engaging a building contractor to examine the concrete panels. No mention was made of health and safety. The building owner took no action upon receipt of this letter.
The trial judge felt that, had the PM examined the panels from the scaffold then in place, the defects would hvae been plain and he would have clearly seen the corrosion. Both the trial judge and the CA agreed that although the PM had warned his clients that there may be defects in the building, this was not sufficient to have discharged his duties to his clients when those defects were not rectified and caused severe injuries to another.
A particular problem here was the fact that the PM, a chartered surveyor, would not climb the scaffolding. The CA said this was a task which they considered fell within the normal task of a chartered surveyor. Had the defects been noticed, something would have been done about them. The PM’s conduct was extremely unusual. If you instruct a chartered surveyor to act as a building manager, one would normally expect him to carry out comparatively routine exercises, such as climbing scaffolding. Hence it was not sufficient for someone in his position to simply advise clients to take other advice. The CA said:
"Professional men are employed to do the things normally expected of them in their profession...[The building owner] did not expect that they would have to go to someone else to do this comparatively elementary task, with respect, of climbing scaffolding to inspect a building."