You wait for 4 years for another case on bannisters and the Defective Premises Act 1972 and then two come along at once…

Sternbaum v Dhesi [2016] EWCA Civ 155

Dodd v Raebarn Estates Ltd & Ors [2016] EWHC 262 (QB)

Both can be dealt with fairly quickly and together, as the courts follow the same lines. Both cases involved falls on stairs, very sadly in Dodd, a fatal fall. In each case, there was no bannister to the staircase. Both claims were on appeal from being dismissed at first instance.

In Dodd, there were also some complex issues on the facts of who (if anyone) had the repairing obligations for the staircase in a communal area. That ended up ruling out a claim under Occupier Liability Act 1957.

In both cases, what was alleged was a breach of section 4 Defective Premises Act. This provides

4. Landlord’s duty of care in virtue of obligation or right to repair premises demised

(1) Where premises are let under a tenancy which puts on the landlord an obligation to the tenant for the maintenance or repair of the premises, the landlord owes to all persons who might reasonably be expected to be affected by defects in the state of the premises a duty to take such care as is reasonable in all the circumstances to see that they are reasonably safe from personal injury or from damage to their property caused by a relevant defect.

(2) The said duty is owed if the landlord knows (whether as the result of being notified by the tenant or otherwise) or if he ought in all the circumstances to have known of the relevant defect.

(3) In this section “relevant defect” means a defect in the state of the premises existing at or after the material time and arising from, or continuing because of, an act or omission by the landlord which constitutes or would if he had had notice of the defect, have constituted a failure by him to carry out his obligation to the tenant for the maintenance or repair of the premises; ….

(4) Where premises are let under a tenancy which expressly or impliedly gives the landlord the right to enter the premises to carry out any description of maintenance or repair of the premises, then, as from the time when he first is, or by notice or otherwise can put himself, in a position to exercise the right and so long as he is or can put himself in that position, he shall be treated for the purposes of subsections (1) to (3) above (but for no other purpose) as if he were under an obligation to the tenant for that description of maintenance or repair of the premises; but the landlord shall not owe the tenant any duty by virtue of this subsection in respect of any defect in the state of the premises arising from, or continuing because of, a failure to carry out an obligation expressly imposed on the tenant by the tenancy…

In Dodd, the staircase had been built, or significantly remodelled during structural alterations, without a bannister. In Sternbaum, there was no evidence that there had ever been a bannister. However, tthe council had found that the lack of a bannister or handrail amounted to a category 1 hazard under the HHSRS and served an improvement notice.

In both cases, the claimants argued that Hannon v Hillingdon Homes [2012] EWHC 1437 QB (our note) meant that the absence of a bannister was a relevant defect for the purposes of s.4(3) DPA and thus s.4(1) was in play.

In each case, the court distinguished Hannon on the basis that there the bannister had been removed during the tenancy (by a tenant) and thus the staircase was no longer in repair.

While in each case, the stairs were unsafe without a handrail or bannister, following Alker v Collingwood Housing Association [2007] EWCA Civ 343 “a duty to repair and or maintain could not be equated with a duty to make safe”. Even a duty to keep in (or put into) good condition could not encompass a duty to put into safe condition:

‘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 in 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’. (Alker at 14)

In short, what was actually being argued was a duty on the landlord to ‘improve or make safe’ the premises. That did not fall under s.4 DPA, and so both appeals were dismissed.

The position on common law negligence, raised in Dodd, remained as per Drysdale v Hedges [2012] EWHC 4131 (QB) (our note here) that a “landlord owed a duty to take reasonable care not to create an unnecessary risk of injury”. In Dodd, the landlord had not created the relevant risk, so that ground of appeal also failed.