Of sink holes and strict liability

 Lafferty v Newark & Sherwood District Council [2016] EWHC 320 (QB)

Does section 4(4) of the Defective Premises Act 1972 create a strict liability on the landlord for any defect, such that it covers latent or undetectable defects? The short answer is no. This appeal sets out why.

Ms L was the tenant of Newark & Sherwood. The tenancy included standard section 11 Landlord and Tenant Act 1985 repairing obligations and a right of access to repair.

In 2010 Ms L was hanging up laundry in the garden when a hole suddenly opened up and she fell into it, sustaining injuries that would have been assessed at £12,000 of damages, subject to liability. The cause of the hole opening up was found to be a fractured underground drainpipe that had lead to erosion of the soil. It was common ground that the pipe fell under the council’s repairing obligation. At first instance, the Judge had found “that there were no external signs or warnings of this potential problem. In short, no reasonable inspection of the garden could have discovered it”.

It was a relevant defect for the purposes of section 4(3) DPA – but as a latent defect, s.4(3) was not engaged. S.4(3) states:

(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;

Ms L’s case was that s.4(4) amounted to a strict liability, regardless of notice. This was dismissed at first instance and Ms L appealed.

S.4(4) states

(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.

Ms L argued that:

Either the effect of the sub-section was to impute knowledge to the landlord, or (albeit this may have been a different way of advancing the same point) the landlord was impressed with an obligation to inspect, maintain and repair which was unavoidable. The relevant defect, for sub-section (3) purposes, fell within the scope of that obligation, and this was sufficient to secure recovery for the Appellant. The whole point of sub-section (4) is to preclude landlords from asserting Nelsonian ignorance of defects. On my understanding of his submission, Mr Colville’s related core contention was that sub-section (2) has no application in a sub-section (4) case, because were it to apply the later sub-section would always have no practical effect; and that the Judge was wrong to hold that the deemed obligation arising by virtue of sub-section (4) was qualified by the earlier sub-section.

The Council argued that:

section 4 created one obligation, not two, and that it was an obligation to exercise reasonable care in all the circumstances. Accordingly, there simply was no scope for the type of strict obligation contended for by the Appellant. Mr Godfrey submitted that sub-section (4) was a gateway provision: when its preconditions were met, the obligation was deemed to arise; and, critically, this was exactly the same obligation as one sees in sub-section (1). Thus, on this approach sub-section (4) was enacted to close a lacuna in the law (viz. cases where there was no express or implied repairing covenant, and only a right of entry), and achieved that closure not by placing the tenant in any better position than one who had the benefit of an express covenant, but in precisely the same position.

Ms L raised the comments of Laws LJ in Alker v Collingwood Housing Association [2007] 1 WLR 2230:

“It can be seen that the duty under section 4(1) arises if and only if the following conditions are fulfilled:
1. The landlord owes an obligation to the tenant under the tenancy for the maintenance or repair of the premises – section 4(1).
2. The landlord knew or ought to have known of whatever is the “relevant defect” – section 4(2).
However those requirements are qualified by section 4(4): the landlord is treated as under a section 4(1) duty if he can exercise a right enjoyed by him to enter the premises in order to carry out works of maintenance or repair. The duty itself, however, is only to take reasonable care to protect potentially affected persons from injury or damage caused by a “relevant defect”. That is defined by section 4(3). I repeat the definition for convenience:
“… a defect in the state of the premises … 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 – that is a failure by him to carry out his obligation for maintenance or repair”.
Here it is common ground that the conditions are met. The appellant owed an obligation for maintenance or repair (clause 3.1 of the Tenancy Agreement). Section 4(2) (the second condition) was not fulfilled because the appellant had no notice of the putative defect, but that omission is repaired by the application of section 4(4) which, as I have said, qualifies the conditions. The appellant had a right of entry for the purpose of repair or maintenance by force of clause 3.12. Accordingly, the only question in the appeal is whether the state of the glass panel constituted a “relevant defect”. The appellant, by Mr Underwood QC, said that it did not because the glass panel was in no need of repair or maintenance. The respondent, by Mr Hartley, says that it did because it was dangerous. That antithesis articulates in essence the short and important point on which the appeal turns.” (Emphasis added)

However, that case turned on whether there was actually a defect for the purposes of 4(3). Laws LJ’s comments were obiter.

On the appeal, the High Court held that the purpose of s.4(4) was to address a situation “where the relevant defect falls outside the ambit of sub-section (1) altogether, either in the absence of an express repairing covenant or because the implied covenant under section 11 of the Landlord and Tenant Act 1985 is inapplicable to the defect in question”.

Rather than being concerned with creating a different obligation, s.4(4) was to make clear that s.4(1) obligation – to take reasonable care to see tenant and others reasonably safe from injury caused by the relevant defect – applied even in the absence of express or s.11 repairing obligations, at least where there was an express or implied right of access to do works.

When sub-section (4) applies, so does sub-section (1); and for the purposes of sub-section (1), in establishing the content of the duty, regard must be had to whether the landlord “ought in all the circumstances to have known of the relevant defect.” To my mind, this mandates an inquiry by the court into information which the landlord obtained, or ought to have obtained, during the course of carrying out any inspections, and information which he would have obtained had he carried out such inspections as he ought to have performed properly. In my judgment, liability may be established in a sub-section (4) case either in circumstances where a landlord’s inspection(s) are negligently performed, or where the landlord fails to carry out proper inspections because he abstains from implementing a reasonable system for performing them. I am not intending to set out exhaustive categories, but these must the paradigm instances.

In the present case, although there was no apparent evidence of the landlord’s system for inspecting the property referred to in the first instance judgment, it was accepted that no reasonable inspection could have identified this defect.

Appealed dismissed.

About Giles Peaker

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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