What constitutes a defect or a lack of repair for the landlord to be liable for tenant’s injury?

This the first of a couple of cases involving liability under sections 2 Occupiers Liability Act 1957 and 4 of the Defective Premises Act 1972 and stairs, or rather in relation to the falling off of stairs

Gillian Drysdale v Joanne Hedges (2012) QBD 27/07/2012 [On Lawtel, not on Bailii yet]

Ms Drysdale was the tenant of Ms Hedges. The property was a mid terrace Victorian house on 3 levels (basement, ground and first). There were 3 steps up to the front door, without a handrail before the relevant date. There was a low (18″) wall between the middle step and the lowered area in front of the basement, about an 8 foot drop, and no wall at all at the top step.

The tenancy agreement was signed by the tenant on 8 October 2009, but backdated to 5 October 2009. Ms D had been provided with the keys some days before and spent the night of 4 October in the property. On 5 October, her fiance, Mr Stuart, arrived with a van load of possession. Her undisputed account was that on 5 October, which was a rainy day, she and Mr Stuart were jointly carrying a large box into the property, with her at the front, going backwards. She slipped on the middle step and fell over the low wall into the basement area, causing serious back injuries.

Ms D claimed, on the basis that the steps were “unduly slippery” due to being painted, being wet and the presence of dirt. In addition, Ms D alleged that the side wall was not sufficiently high and/or no guard rail was fitted.

The specific heads were breach of section 2 Occupiers Liability Act 1957, breach of repairing covenant in the tenancy agreement and section 4 DPA and common law duty of care.

Following evidence from both parties and from experts for both parties (albeit neither found to be ‘an expert in slipping’), the Court found as fact that the Defendant had painted the steps, renewed annually, for some years before the incident date, principally to improve their appearance. The paint was an external paint but not specifically non=slip and described as a ‘semi=gloss’ finish. The painting of the steps had increased the risk of slipping, particularly when the steps were wet, but the Defendant did not consider that painting the steps would increase the risk of slipping. The side wall was inadequate to prevent falls. The drop was dangerous and, while not unusual at the time the house was built, should have been regarded as dangerous by a reasonable landlord. There was no history of people slipping on the steps. Whether any dirt increase the risk of slipping was speculative.

Turning to liability, the Court held:

Section 2 Occupier Liability Act – this has been pleaded in the alternative if it was found that Ms D had not been the tenant at the time of the accident. However, Section 2 was held to be of no application, not merely on the issue of the commencement of the tenancy. S.2 was of general application, but a landlord’s duty was defined by s.4 DPA 1972. It could not have been Parliament’s intention that both sections would define a landlord’s duty. S.4 DPA replaced s.4 of the OLA, so it was to s.4 DPA that one must look for the full extent of the landlord’s liability in tort, at least normally. Support for this found in Murphy v Brentwood District Council [1991] 1 AC 398 where the House of Lords declined to accept a duty beyond that set out in the DPA.

Section 4 Defective Premises Act – Occupation in contemplation of the letting of the premises was covered by 4(3)(b)(i) or (iii), so it covered the circumstances of Ms H occupation.

A ‘relevant defect’ for the purposes of s.4 had to involve the premises being ‘not in good repair’ (Quick v Taff Ely BC [1986] QB 809 cited), meaning worse than it was at some earlier time. Alker v Collingwood [2007] 1 WLR 2230 cited on a duty to repair not being equivalent to a duty to make safe. Putting in a good condition did not equate to putting in a safe condition.. Laws LJ at p2236 said:

A house may offer many hazards: a very steep stairway with no railings; a hidden step; some other hazard inside or outside the house of the kind often found perhaps in particular older properties. I do not think it can be said that the Act requires a landlord on proof only of the conditions I have described for the application of Section 4 to make safe any such dangerous feature.

The wall to the steps could not be said to be out of repair. There was no evidence that it had ever been oter than it was. While the Claimant argued that the application of paint to the steps had put them out of repair, such that there was a defect that the removal of the paint would remedy, the Court did not accept this:

It is stretching the meaning of the word ‘repair’ to apply it to the removal of paint. The paint did not replace the stone but was additional to it. The stone did not require repair. The paint did not require repair: what it required was removal.

There was no breach of s.4 DPA (and also no breach of clause 3.2 of the tenancy agreement which contained the landlord’s repairing obligations – “to maintain the structure and exterior in good repair”.

Breach of Common Law duty – Cavalier v Pope [1906] AC 428 held that a landlord who let a property in a dangerous condition had no duty of care to the tenant and no duty to remedy the defect. The Claimant pointed to the duty found for public landlords in Rimmer v Liverpool CC, the Court of Appeal had found a liability for a Local Authority landlord which had designed, built and let properties. The Court of Appeal followed this in Targett v Torfaen BC [1992] 3 All ER. However, Boldack v East Lindsay DC 31 HLR 41 held that Cavalier v Pope was binding authority unless it could be distinguished.

The Claimant sought to argue for a duty of care, relying on Lips v Older [2005] PIQR P14, where a (1/3) duty had been found in respect of a tenant who had fallen off a low retaining wall into a lowered area. However, Cavalier v Pope was not raised in that case, which apparently found on the basis of common law negligence and a duty to make the entrance area reasonably safe. Lips was cited and followed in in Sowerby v Charlton [2006] 1 WLR 568, again a fall into an unguarded drop, but again without Cavalier v Pope being cited.

The Court held that Sowerby was not binding Court of Appeal authority for the proposition that a common law duty of care was owed in the circumstances of this case. Sowerby was primarily concerned with the CPR and the issue of whether the defendant could resile from an admission of liability. The Court’s views were in the context of what would happen if the judgment was set aside, rather than a declaring a duty. Lips v Older was a case presented and argued as common law negligence only, apparently without the existence of the duty being disputed.

In relation to Rimmer and Targett, the Claimant argued that issue was a positive duty of the landlord not to take steps to create a dangerous state of affairs and that this remained good law despite Murphy. Painting the steps fell under this positive duty.

The Court found that the unguarded drop fell under Cavalier v Pope and there was no duty to guard it. However, painting the steps gave rise to a common law duty to take reasonable care to ensure its application did not create risk of injury. Section 4 DPA covered injury arising from a failure to repair, but where the Act does not apply, the landlord owes a duty to take reasonable care not to create an unnecessary risk of injury.

However, on the facts, in painting the steps, the Defendant was doing what other people in his position would have done, applying paint said to be suitable for outdoor use, which had no warning against its use on steps or that it might become slippery in the wet. While the knowledgeable might have been alerted by ‘semi-gloss’ and ‘producing a sheen’, not the man in the street. The Claimant’s expert had acknowledged it was not unreasonable to apply the B&Q paint, though be personally would not have done. There was thus no breach of duty of care.

Claim dismissed. The Court’s sympathy to the Claimant as a victim of a decision that many consider needs to be reconsidered, but ‘the remedy can only be in another court’.

If anyone knows anything about an appeal, we’d be very interested to hear.