Penny & Anor v Digital Structures Ltd

The appellants are Mr and Mrs Penny (the Pennys). They purchased The Forge, Newhouse, Ireshepburn, Durham (the property) in March 2005 moving in on 16^th April 2005. The property had been converted, with planning permission, from a barn in 1992-3 and, albeit a further alteration occurred to the first floor with further planning permission in 1994, it was the original conversion into a dwelling which involved severance of tie beams forming the horizontal elements of four of the trusses supporting the roof.

The Pennys, prior to purchase, had obtained an RICS Homebuyer valuation and survey which had recorded defects in the south gable wall. The Pennys’ mortgage providers asked for a structural survey aimed specifically at assessing the significance of those defects. The respondents, through Mr Ramsey, a structural engineer, were instructed to undertake a “specific structural survey of the south gable …..and a general non-invasive visual inspection of all parts of the building from ground level.” That survey was carried out on 1^st March 2005 by Mr Ramsey. Mr Ramsey’s report indicated that in general the property was structurally sound and it did not suggest that there was any deficit in the arrangements for supporting the roof. He found no signs of distress and indeed did not comment at all on the first floor and the fact that the horizontal tie beams had been severed.

Shortly after they moved in to the property, the Pennys contemplated some further alterations to the first floor. They were advised by a builder Mr Gibson that they should have the safety of the structure checked before he would contemplate carrying out work upon it. That led to the Pennys instructing Mr Oliphant also a structural engineer to consider the structural integrity of the property. He, on a purely visual inspection, advised in emphatic terms that the roof was not properly supported and on the “point of catastrophic collapse”.

Acting on that advice work was carried out in September 2005 which removed the first floor and reinstalled the horizontal trusses. In the result the Pennys have lived in a caravan since August 2005. They also commenced an action against the respondents. The trial of the action took place over two days on 16^th and 17^th April 2008 before his Honour Judge Walton with Mr Oliphant acting as expert witness for the Pennys and Professor Knapton as expert for the respondents.

The judge by a judgment handed down on 20^th June 2008 found that the roof was in fact adequately supported when surveyed by Mr Ramsey and he found that the claim in negligence against the respondents could not succeed. He found that certain of the matters relied on indeed primarily relied on in Professor Knapton’s report did not in fact provide the support required and were not matters that a competent surveyor in Mr Ramsey’s position should have relied on. He based his conclusion on evidence given by Professor Knapton for the first time orally at the trial that stability was reintroduced into the roof after the trusses were severed by the introduction of vertical timbers between the sloping members of the trusses and the remaining sections of the tie beams, thereby creating triangular structures in the eaves which he said must have taken the load previously taken by the tie beams.

The judge thus dismissed the Pennys’ claim and it is that judgment which they appeal, contending first that they were not given a reasonable opportunity of dealing with Professor Knapton’s evidence relating to the triangles; second that in any event the judge was wrong in the view he took that the roof was adequately supported when inspected by Mr Ramsey; and third that he was wrong in the view he took that Mr Ramsey was not negligent in failing to advise the Pennys as to the inadequacies of the support for the roof. The Pennys also apply to put in a further report from Mr Oliphant dealing with the triangle point.

The judge was aware that the question whether the support for the roof was adequate was not the end of the issue he had to decide. The real issue he had to decide was whether, even if the roof support was inadequate, that is something that the survey which Mr Ramsey was instructed to carry out should have discovered. But the obvious starting point was, and indeed is, to consider the adequacy or otherwise of the roof at the time of Mr Ramsey’s inspection. If the roof was adequately supported then the question of negligence simply does not arise. If it was inadequate it would be important to identify why and whether there were features which a competent surveyor would or should have seen.

The judge appreciated the case being made on both sides. On the one hand, in favour of the view the roof was adequately supported, was the mere fact that as Mr Oliphant accepted the roof and such support as it had even after 13 years showed no signs of distress. In addition Mr Ramsey was not apparently the first professional who should have considered the adequacy of the support for the roof. Architects had acted in relation to the original conversion and the same architects acted again in 1994; a structural survey (not available at the trial) was apparently carried out in 2004. That report was referred to in the report of Mr Coulson who carried out the RICS Homebuyer’s Survey and Valuation on 6^th February 2005 in relation to the purchase and borrowing by the Pennys. It was Mr Coulson’s reference to cracking, unrelated to the roof, which lead to Mr Ramsey being instructed to carry out the non-invasive structural survey. Mr Oliphant was it would seem the first to suggest that the support for the roof was inadequate.

On the other hand on any view the tie beams had been severed and, if the roof was to be adequately supported, the horizontal forces previously restrained by the tie beams had to be taken up elsewhere. The matters primarily relied on by Professor Knapton and relied on by Mr Ramsey did not provide the requisite support. Indeed the judge found, and it is unchallenged, that Mr Ramsey fell below the standards of a competent structural surveyor insofar as he relied on certain factors e.g.(1) the handrail which his counsel in opening described as “a substantial hand rail beam . . . notched into vertical members of the trusses” but which the judge found not to be a beam at all; (2) the fact that the trusses were connected by brackets to the beam running along the gallery floor said to be of metal; the judge found that they had no significance structurally and were made of “relatively thin wooden fretwork”.

But the judge’s finding ultimately was that in fact the support for the roof was adequate. He did so essentially on evidence given by Professor Knapton relating to the triangular structures created in the corners of the trusses which were said to restrain the horizontal forces which might otherwise cause the roof to spread and affect the outer walls. The judge appreciated that this evidence relating to the triangles was a part of his oral evidence and not contained in his report [see paragraph 60]. The judge also in reaching his conclusion thought that Mr Oliphant had retreated from his initial stance to the effect that it could be seen on visual inspection that the roof was in danger of imminent collapse. Indeed the judge had difficulty with Mr Oliphant’s explanation as to why it was in immediate risk of collapse “particularly given the absence of any sign of strain at all”. The retreat was to a position taken up in evidence by Mr Oliphant that Mr Ramsey should have advised that “the roof should have been opened up to verify load points”, a position as the judge pointed out which he did not feel it appropriate to advise when he himself inspected; [see paragraph 62]. The judge then continued in these terms:-

“63.

Looking at the individual trusses it was also not clear to me why at T2/3 Mr Ramsey was not entitled to regard the vertical posts connecting with the inclined trusses as introducing stability via the smaller triangle arrangement as demonstrated by professor Knapton. Mr Oliphant’s point here seemed to be that the connection had to be substantial. The idea that a triangle arrangement could be introduced to cure the removal of the horizontal tie did not itself seem to be challenged. However, while Mr Oliphant says he did not think the connection between the vertical posts and inclined trusses substantial it is not something he checked. He did not for instance check whether there was a connection by nails such as he conceded in cross examination would create a sufficient link Since his position is that the structure’s inadequacies were visible within five minutes, I do not see how that conclusion could follow, without closer exploration for instance of that connection.

64.

I also agree with Professor Knapton that the presence of packing could be taken into account by Mr Ramsey. Mr Ramsey could also properly conclude that the internal walls were load bearing. I also agree that potential load paths could be observed at T1 and T4. At T1 and 4 the floor itself in effect replaced the missing truss. While Mr Oliphant took the view that the outer walls were the principal support for the roof, nothing was done to test that view before the remedial works were carried out. Mr Oliphant himself said he [was] surprised there was not the evidence of eaves spread which he would have expected if the walls were a significant source of support.

65.

In the result, while I have made clear there are aspects of Professor Knapton’s opinion which are unconvincing, it remains the case that the roof was deriving support from somewhere, and of the two possible scenarios, the outer walls as suggested by Mr Oliphant; the arrangement of internal triangles as suggested by Professor Knapton, I find the latter the more probable. Coupled with the absence of any sign whatsoever that the structure was distressed, it suggests to me that the roof was actually stable in the condition presented to Mr Ramsey. It was safe and not in danger of imminent collapse.”

On the appeal Mr Simpson made various attacks on the findings by the judge. His first ground of appeal was to argue that there was a serious procedural error in that (he asserted) the judge had permitted Professor Knapton to introduce the evidence of the triangles during the course of cross-examination and had not given Mr Oliphant any chance to deal with it, and then based his findings upon that evidence. In tandem with this ground of appeal Mr Simpson, for the Pennys, made an application to put in fresh evidence, i.e. a further report from Mr Oliphant.

Mr Simpson expanded on his first ground in considerable detail in his skeleton argument and orally, and made much the same points in seeking to persuade this court to admit the fresh evidence. The points stress the way the defendants in their defence and through Professor Knapton put their case prior to Professor Knapton’s reliance on the triangles. But having regard to what actually happened at the trial the points can be dealt with quite shortly.

It was true as the judge recognised that the argument based on the triangles did not form part of Professor Knapton’s written reports and he only introduced it in cross examination. But the sequence of events is as follows. First it was Mr Oliphant in his evidence who suggested that although the vertical force would have been onto the packing under the vertical members and then to the floor, it would not have “got rid of the horizontal force” leading to the roof spreading and pressure on the walls. At this stage of the cross- examination counsel for the respondents sought to suggest that “friction” between the packing and the floor might have resisted the horizontal loads. This was refuted by Mr Oliphant.

The next day when Professor Knapton was giving evidence Mr Simpson in the course of cross examination put to him that the point relating to friction was not in Professor Knapton’s report. Professor Knapton explained that he did not rely on any point relating to friction because there was no friction [line 2 page 122]. Professor Knapton then demonstrated to the judge with the aid of a Toblerone packet how he suggested that “you create a little structure within itself, a little triangle whose stability creates the support to the whole truss which was previously created by the tie” [line 31 page 123] What he further demonstrated was that there was no need for the fixing of the base of the triangle or toblerone packet what needed to be fixed was the vertical member to the roof rafter. This evidence was all given before the mid day adjournment on the second day of the trial.

No protest was made at Professor Knapton giving that evidence in answer to the questions put to him. Furthermore during the mid day adjournment Mr Simpson had the opportunity of considering the matter with Mr Oliphant and he continued with the cross examination in the afternoon. The thrust of his questions in the afternoon was that the connection between the vertical member and the roof truss was not strong enough to produce the effect for which Professor Knapton contended, it being accepted by Professor Knapton that a rigid connection was needed if his evidence was to be correct. The questions and answers went as follows:-

“Q. Right, okay. The vertical is required somehow to [inaudible] 1.2 tons of horizontal force into the horizontal. There is no bolt, is there?

A.

I can’t see one.

Q. That again it could be glued.

A. If you say so. I don’t –

Q. Well, I do not know more than you do, do I.

A. No. No.

Q. It could be wedged.

A. It would be very unlikely if there were a connection that could not transmit the force that goes through it because it would not be there as it is if that were the case, so there must be something allowing it to happen, but, as I say, I never saw it.

Q. I think the evidence of Mr Ramsey was that the – I think he supposed that at best the connection in all of these triangles was nothing more than some nails.

A. It may be nails which would not alarm me because nails are a very common way of connecting structural timber members together.

Q. Well, let us have a look at the –

HHJ WALTON: Do I understand from this evidence then that you accept some method of connection has to be in place for the forces to be transmitted as you are assuming?

A.

Yes, that is correct, Your Honour.

Q. It is simply you have not been able to investigate what – you assume that the connection is there because you have not been able to investigate what form it takes?

A.

That is correct, Your Honour.”

Mr Simpson did not suggest at that stage or indeed at any stage of the trial that the evidence should be ignored, or that Mr Oliphant should be recalled to deal with it. When it came to final speeches the point he made was not that Mr Oliphant had had no opportunity to consider the points made by Professor Knapton but that Mr Oliphant had considered the question whether the triangles provided sufficient support and he directed the judge’s attention to a page of calculations in Mr Oliphant’s report. He submitted that Professor Knapton’s assumption that there was a rigid connection was “an unsupported assumption and it is simply wrong. The triangles you have seen in the corner are nowhere sufficiently rigidly connected . . .in the way that Professor Knapton has assumed . . .” [see page 165].

The judge appreciated that unless the joint between the vertical member of the triangle and the roof beam was soundly fixed Professor Knapton’s evidence could not be correct. The finding by the judge that the vertical pillar must have been nailed to the roof beam demonstrates the judge dealing with that point. It is the terms in which he does that which give rise to the second ground of appeal to which I am about to come.

In the light of the way matters went at the trial it is impossible to say that there was a procedural irregularity in admitting this evidence or in the judge relying on the same in his judgment. Furthermore since Mr Oliphant was there at the trial, and could have been recalled if it was thought necessary to do so, there is no basis on which the application to put in further evidence in the court of appeal can succeed. Mr Simpson submitted that with the judge anxious to finish the case within the second day, an application to recall Mr Oliphant would have been refused. Since that application could have been made immediately after the mid-day adjournment I doubt whether Mr Simpson is right. But only if the application was made and refused are there the beginnings of an argument that further evidence should now be admitted in the Court of Appeal.

This conclusion also deals with the third ground of appeal founded on a criticism that Mr Oliphant was not given the opportunity to give further evidence.

That brings me to the second ground of appeal. It is submitted that the judge must have by necessary implication found that that the triangles were rigidly held together by nails despite (it is submitted) the absence of evidence to that effect. It is further submitted that the judge was wrong to record a concession by Mr Oliphant that nails would suffice to produce the rigid joint.

Mr Oliphant’s evidence was that one could see from the photographs taken by him that there were no bolts or dowels and at best the vertical member “would have been nailed in place” [page 79 line 11]. He did not in his own evidence ever make a concession that nails could have provided a sufficient link. But when Professor Knapton was cross examined after the mid day adjournment on the second day when it was put to him that Mr Oliphant “supposed at best the connection…was nothing more than nails” , his answer was “It may be nails which would not alarm me because nails are a very common way of connecting structural timber members together” [page 134 line 25] and perhaps more importantly Mr Simpson put, presumably on instructions from Mr Oliphant, “In order to get the equivalent connection [to using bolts] through using nails you need about 20” to which the answer from the Professor was “I suppose it depends upon how long and what the diameter of the nails was, but you may be right yes.”

The recording of a concession was wrong but the judge was clearly entitled to conclude that nailing with up to 20 nails depending on their diameter and length would have produced a rigid joint. I accept that by implication the judge was finding that the joint was probably nailed and that if it was to be rigid a sufficient number of nails would have to be used, perhaps as many as 20.

It is true that there was no first hand evidence as to whether nails had been used or the quantity. That was not something Mr Oliphant had checked and it was not something Professor Knapton had had any opportunity of checking. However, what the judge had to decide was whether it was more probable that Mr Oliphant was right that the horizontal forces were simply being contained by the walls, or whether Professor Knapton’s explanation that the triangles were rigid and thus prevented the horizontal force affecting the walls, was more likely to be right. One important piece of evidence that he had to take into account was the fact that there was no sign of the walls bulging and indeed no sign of distress at all when Mr Ramsey and Mr Oliphant carried out their inspections.

In my view the judge was entitled in the light of all the evidence to find that Professor Knapton’s explanation was more likely to be correct and that in the result when Mr Ramsey inspected the property the roof was in fact safe and not in immediate danger of collapse.

Once the appeal against this finding of the judge must be dismissed, it follows that the fourth ground of appeal which asserts that the judge found (and was wrong in law so to do) that Mr Ramsey was entitled assume from the absence of cracking or distress rather than from an application of principles of structural engineering, that mechanisms intended to stabilise the roof had been successful simply does not arise.

I would accordingly dismiss the appeal.

I agree

I also agree.