Shut that (undemised) door!

Is the Occupiers’ Liability Act 1957 still relevant in a landlord & tenant relationship, or not?

Jasmine Alexander v (1) Freshwater Properties Limited (2) Christopher Place [2012] EWCA Civ 1048

This was an appeal, decided within a few days of Drysdale v Fletcher in the High Court, but appearing to reach quite different conclusions on the applicability of the Occupiers’ Liability Act 1957. I’ll give my view on the apparent differences at the end.

Ms Alexander was the occupier (whether tenant or leaseholder is not clear) of a flat in a block. Freshwater Properties was the landlord of the block and Christopher Place was a building contractor hired by Freshwater.

Ms A suffered a traumatic partial amputation of a finger when it was caught in the front door to the block as it closed. The front door to the entrance hall was a common part.

Works had been commissioned by Freshwater, carried out by CP, including the removal, polishing and replacement of the exterior door handle to the front door.

Miss Alexander brought proceedings against both the landlord and the builder alleging breach of duty under the Occupiers’ Liability Act 1957 and negligence. It was her case that the self-closing mechanism fitted to the door was defective and that it was necessary for anyone leaving the building to pull the door shut in order to ensure that the lock engaged properly. Although positioned at knee height, the exterior handle had enabled that to be done safely. The removal of the handle made it necessary to pull the door closed by grasping its edge, taking care to move one’s fingers out of the way before it closed on them. The claimant said that the absence of the handle created a dangerous situation because it gave rise to a risk of precisely the form of injury which she had suffered on the day in question. There was a trial limited to the question of liability.

The evidence was that the self close mechanism to the door was erratic. The Recorder found that it was working on the day of the accident, but for some time, there had been a notice up reading:

“DEAR FELLOW RESIDENTS AND GUESTS,
PLEASE ALWAYS PULL OUTER DOOR FULLY CLOSED WHEN YOU GO OUT OR IN AND MAKE SURE THE CATCH CLICKS SHUT!
OR WE COULD GET STRANGERS COMI[N]G INTO THE BLOCK.
Thank you.”

Ms A had been more distracted than usual and had pulled the door harder the usual and misjudged the timing of the removal of her hand. The handle had been removed several weeks before the accident by CP and had not been replaced.

The Recorder found that the builder had been negligent in allowing the door to stay handless for so long, when it posed an obvious risk of injury. The builder should have known from the sign inside that the self closing mechanism was not reliable and so it was foreseeable that residents would resort to pulling the edge of the door.

The landlord was also liable. It knew that the self-close mechanism was defective. It had been involved in the decision to send the handle for polishing and should have been aware that it would be missing for several weeks. The landlord should have arranged a replacement or repaired the self-closing mechanism.

Liability was apportioned at 25% to the landlord, 75% to the builder, but with 25% contributory negligence by the Claimant.

The builder appealed, and then, out of time, so did the landlord. The builder argued that the Recorder had failed to apply the principles of negligence correctly, alternatively, he was wrong to assign 75% liability to the builder. The landlord also argued that the Recorder has been wrong on the principles of negligence, but in the alternative resisted the builder’s second argument on apportionment of liability.

The argument on liability was based on the way the recorder had summed up the statement of principle in Whippey v Jones [2009] EWCA Civ 452. The Recorder had said “What underlies the law is the concept of reasonable foreseeability of injury.”.

The builder argued that:

the Recorder failed to recognise that the builder would not be in breach of a duty of care towards those who used the front door unless a reasonable person in his position would have realised that the absence of an exterior handle might result in someone’s suffering injury by getting their fingers trapped in the door. In the present case that was highly unlikely: the door was fitted with a self-closing mechanism, the handle was not designed for closing the door, none of the residents who gave evidence thought that there was a serious risk of injury and for an accident to occur there would have to be an unusual sequence of events.

The landlord similarly argued:

that it is not enough that the defendant should have foreseen the possibility of injury; in order to be held liable it is necessary that a reasonable person in his position should have realised that the likelihood of injury was sufficiently great to require steps to be taken to prevent it. If the Recorder had adopted that approach he would have held that the risk of harm was so low that neither defendant could reasonably have been expected to guard against it.

The Court of Appeal held that the single sentence attacked “is not of itself sufficient to demonstrate that he failed to apply the correct principles, in particular the need to decide whether a reasonable person in the defendant’s position would have regarded the risk as sufficiently serious to require action.”

On the facts, the Recorder’s decision that the builder was negligent was wholly justified. The door was heavy and likely to injure fingers if trapped, the self close mechanism was clearly defective and residents were asked to pull the door closed behind them. The builder had removed the handle but failed to check how the door closed. As far as the landlord’s liability, the notice may have been put up by a resident, but an agent of the landlord visited regularly and was aware of the notice. The landlord had been a party to the decision to remove the handle and, through its agent, was aware it had been removed for some time.

The landlord sought to avoid liability by arguing that it had delegated authority for the works to the builder and so could rely on s.2(4)(b) of the Occupiers’ Liability Act:

In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that (for example)—
[...]
(b) where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done.

But the Court of Appeal found that in failing to correct the self closing mechanism, or instructing the builder to fit a temporary handle, the landlord was personally negligent.

The landlord’s duty under section 2(1) (the “common duty of care”) was to take such care as in all the circumstances of the case was reasonable to see that the residents would be reasonably safe in using the premises. It was accepted that in the context of this case that amounted to the same as the common law duty of care. That was a personal duty which required the landlord for his own part to take all reasonable care to ensure that the residents were reasonably safe. It was not suggested that the builder was not a competent contractor or that the landlord had failed to satisfy himself properly of that fact, but that is not an answer if there has been negligence on the part of the landlord himself.

On the apportionment of liability:

The danger arose from a combination of a defective self-closing mechanism and the absence of an exterior handle. Both defendants were parties to the decision to re-polish and replace the handle and both knew that that would take some time. Both were, or should have been, aware that the door was heavy and that the self-closing mechanism did not work properly. Both were, or should have been, aware that the residents were encouraged to pull the door shut behind them when leaving the premises and both were, or should have been, aware that once the handle had been removed that could be done only by grasping the edge of the door and pulling it shut. The builder could have fitted some kind of temporary handle and, if he failed to do so, the landlord could have asked him to fit one. It might be said that the landlord, which had general responsibility for the common parts of the premises, was more responsible than the builder, because it had a general responsibility for the upkeep of the premises, including the self-closing mechanism. On the other hand, the builder had created the danger in the first place by removing the handle and failing to check that the self-closing mechanism worked properly. However, that may be, I do not think that the mere fact that the builder was responsible for the work on the handle provided a sufficient ground for holding him 75% liable. In my judgment there was no good reason in this case to attribute greater responsibility to him than to the landlord. In those circumstances I do not think that the Recorder’s apportionment of liability can stand. I would vary the order below to provide that the builder and the landlord are equally responsible.

Comment
While this case is interesting in itself on the issue of negligence and the apportionment of liability, it has concerns some questions, for instance for Case Check, that there may be a conflict with Drysdale v Hedges. Given that Drysdale v Hedges appeared to say that the Defective Premises Act had replaced Occupiers’ Liability Act for landlord/tenant cases. I’m not convinced that there is a conflict.

Firstly, this case was pleaded as an Occupiers’ Liability Act case, with no alternative DPA claim, and the issue of the DPA was not raised at first instance or on appeal.

And then it is worth noting that the relevant defect here was to the common parts of the building, retained and not demised by the landlord. Section 4 DPA is concerned specifically with premises let under a tenancy. The front steps in Drysdale were part of the demised property – a house and gardens.

A landlord may well owe a repairing obligation for the common parts under s.11(1A) on a short lease, and possibly under the express terms of a long lease. A missing door handle to the front door would be disrepair, as would a defective self-closing mechanism. It may be possible to plead personal injury arising from a disrepair liability in these circumstances but this is arguably not sufficient for DPA liability. Where an injury arises from a defect in common parts, rather than in the demised premises, Occupiers’ Liability Act may still be applicable.

Posted in Assured Shorthold tenancy, Disrepair, FLW case note, Housing law - All 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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