Mind the Step 2 – The bannister that wasn’t

This is the second of two recent cases on Defective Premises Act 1972 and stairs (for the first see here). There is now a third case on Occupiers Liability Act 1957 with our note to come shortly.

Patrick Joseph Hannon v Hillingdon Homes Limited [2012] EWHC 1437 (QB)

Mr Hannon was a heating engineer, carrying out work at a house owned by Hillingdon Homes. The company Mr H worked for had a long term contract with Hillingdon Homes, which is the corporate vehicle through which LB Hillingdon manages its housing stock. Mr H was ordered to attend the property to power flush the heating system as a matter of urgency. This work involved him moving from the boiler downstairs to the water cylinder upstairs on a number of occasions.

A flight of stairs ran from the upper floor to the open plan lower floor. The stairs were mounted to the side wall. Originally, there had been a bannister to the stairs, fixed to the steps. This had been removed some twenty years before.

While heading downstairs quite fast to investigate a noise from the boiler, Mr H fell from the stairs into the open plan living area seriously injuring an ankle, leaving long term mobility problems.

Mr H claimed in negligence and under the DPA 1972. Hillingdon Homes defended on the basis that a) Mr H shouldn’t have done the work at the property in the absence of the bannister, or b) was himself negligent in the way he used the stairs, and c) there was a defence under the DPA in that Hillingdon cold not be shown to be aware, or that it should have been aware, of the removal of the bannister and then failed to re-instate them.

On the basis that LB Hillingdon had admitted that it would not have stopped operatives working in a property with no bannister until after Mr H’s accident, and that indeed LBH operatives had attended the property on at least 46 occasions since the bannister were removed by the tenant in 1991, it was not realistic to expect that Mr H should have refused to work at the property until a bannister was fitted, or that the risks of working without a bannister would be such that he should reasonably have declined to work there.

On contributory negligence, the reason for bannister in the first place is to protect the user of stairs when slipping while using the stairs in a reasonable manner. There are occasions when it is reasonable to use the stairs in a speedy way, and given the bang that Mr H had heard from the boiler, this was one of them. There was no unreasonable lack of care by Mr H for his own safety, so no contributory negligence.

On the defence to the Defective Premises Act 1972, a potential difficulty was that Hillingdon Homes was managing the property for LB Hillingdon, where the DPA requires a claim against the landlord. However, Hillingdon Homes had admitted that, for the purposes of this action, it was the landlord and the property was let to and occupied by the tenant at the material time. The Defence also cited LB Hillingdon as Hillingdon Homes’ ‘predecessor in title’.

The claim was brought under DPA section 4. From the provisions of section 4, four issues arose for the claim:

(1) Issue 1: Is the bannister part of the structure?
(2) Issue 2: Was the failure to replace the bannister a “relevant defect”?
(3) Issue 3: Is Hillingdon liable to Mr Hannon given that the tenant removed the bannister?
(4) Issue 4: Did Hillingdon have notice of the defect?

Issue 1: Contra Hillingdon’s argument that bannister were not part of the structure of the house (as per the repairing obligation under the tenancy agreement), banisters formed an integral part of a staircase under the Building Regulations 2000 (Requirement K and Guidance on K and para 1.27 ‘handrails for stairs). A handrail on each side of this staircase, over 1 metre wide, was required under the Regulations as a part of the structure of the stairs. There was no argument that the stairs were not part of the structure

Issue 2: Failure to replace the bannister was indeed a relevant defect:

The evidence shows that the bannister in question was removed by the tenant after she had first become a tenant. This removal occurred after the “material time” which is defined in the DPA as being, on the facts of this case, after the time when the tenancy commenced. Given its integral function, it is self-evident that the absence of the bannister was a defect in the state of the property which was continuing because of the failure or omission of the party responsible for the repairs of the structure to replace it or to insist on its replacement by the tenant.[para 33]

Issue 3: Was Hillingdon liable given that the tenant removed the bannister? Hillingdon argued that the repairing obligation was owed to the tenant and didn’t extend to defects caused by the tenant’s breach of covenant.

However, the Court agreed with the Claimant that

the repairing covenant is unqualified. The wording is wide enough to extend to all types of disrepair. If it had been intended to exclude disrepairs caused by the tenant, the covenant would or should have stated this in terms. Furthermore, in the context of the DPA, the definition of a relevant defect is provided to describe the type of situation giving rise to the landlord’s liability to a third party – Mr Hannon – and it is clear that that definition does not embrace a consideration of whose fault it was that the relevant defect came into existence.

The wording of the repairing covenant did require Hillingdon to repair relevant defects caused by the tenant. It was open to Hillingdon to re-charge the repair costs to the tenant or to require the tenant to rectify the defect. It was not open to them, under the covenant, to leave the defect unremedied.

Issue 4: Did Hillingdon have notice of the defect? Hillingdon argued that liability under s.4 DPA only arose once Hillingdon was on notice of the relevant defect and that the notice must comply withe the terms of the tenancy, such that a report must be given:

“immediately to us or our agents” since it was a defect in the property “which is likely to affect public health or the stability of the structure”. Alternatively, it was within the requirement of “other faults or disrepair” that had to be “reported as soon as possible.”

Further, Hillingdon had never been given notice by the tenant, at best independent contractors had become aware of the defect when making maintenance visits, but this was not notice to Hillingdon.

Against this, Mr H argued:

i) The tenancy agreement envisaged ‘notice to our agents’. This included an employee, or self employee, of an independent contractor attending the property for maintenance and repair purposes undertaken by the landlord, being agents at least for the purposes of receiving a report of disrepair. There had been many such visits, and as the absence of bannister was obvious, any of these visits constituted a report.

ii) Notice did not have to be in writing. Giving access to a maintenance contractor, where the defect was clearly visible, was giving notice.

iii) In any event direct employees of Hillingdon had visited, including a visit a few days before Mr H’s appointment. Notice was given by these attendances.

And iv) “Hillingdon must have undertaken a number of inspections of the interior of the property as their landlord in order to ensure that there were no relevant defects that required it to act in order to comply with its remedial or maintenance obligations under the lease. There was no evidence that such visits had occurred and, if that was so, that absence of inspection visits was itself a breach by Hillingdon of Hillingdon’s repairing obligations and gave rise to an obligation to repair such disrepairs as would have been observed had an inspection visit occurred.”

And finally, s.4 DPA gives rise to a liability where the landlord, as here, has an express right to enter and to carry out repairs and a further right, as here, to inspect to see if repairs are required. That liability arose even if Hillingdon as the landlord had not in fact exercised that right to inspect and repair as liability arose “from the time when by notice or otherwise [it] can put [itself] in a position to exercise” the right to inspect and repair. Hillingdon could have done so at any time over the life of the tenancy.

The court held that “For all these reasons, Hillingdon had been given sufficient and appropriate notice even if, which was not the case, it was necessary for that notice to have been given in order to found liability under the DPA”.

Hillingdon was therefore liable under the DPA for Mr H’s injury in full, with no contributory negligence.

Comment
This is a very useful case, not only on the meaning and extent of the DPA, but also on the issue of notice of defects for both the purposes of the DPA and on broader section 11/tenancy agreement disrepair claims.

While the point about liability arising when ‘from otherwise’ the landlord can put itself in a position to exercise its right to inspect and repair (where that right is in the tenancy agreement) is specific to the DPA, the successful arguments on notice at i) to iv) above are potentially useful in disrepair claims. That said, point iv) on failure to inspect being a breach of repairing obligation might be difficult to square with section 11 and will depend on the tenancy agreement terms.

The court’s findings on the bannister as structure may also be useful.

Posted in Disrepair, FLW case note, Housing law - All, secure-tenancy and tagged , , , , . RSS feed for this post and comments.

About

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +

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