On sewer covers, gardens and responsibilities

Rogerson v Bolsover District Council (2019) EWCA Civ 226

A court of appeal case on when the landlord’s duty under section 4 Defective Premises Act 1972 is engaged and whether there is any duty to inspect.

Ms R was Bolsover DC’s tenant. The property was a house with a front garden. The tenancy began in July 2013. On 7 September 2014, Ms R was mowing the front garden when she stepped backwards with her left foot onto an inspection cover which gave way, as a result of which the appellant’s left leg and body fell through the cover into the void beneath. The underground chamber was used for the purpose of water sewage. The cover and the underlying support and chamber were the property of Severn Trent Water.

Ms R suffered personal injury, loss and damage. At first instance, she was awarded some £15,000 in damages in a claim against Bolsover under section 4 Defective Premises Act 1972. At first instance, the expert evidence was

that the manhole, the void itself and the cover, would be about 40 to 60 years old, that is (sic) would have been in place for this time. It is clear that it is beginning to corrode away and he says that the most logical explanation of what has happened is that support for the inspection cover provided by the framework around it has deteriorated over a period of time and, as a result, the inspection cover was not able to take the claimant’s weight. He said that it is likely that corrosion with rain water in this area of the garden has affected the mortar and, therefore, the stability of the inspection cover and that this is a likely cause for it eventually failing.

Bolsover had conducted an inspection of the property in May 2013 and a ‘survey’ in January 2014. The DDJ found that Bolsover should have done a ‘simple pressure test’ to establish the condition of the inspection cover. Bolsover’s obligation to maintain the structure and exterior of the property extended to the inspection covers in the garden as an ‘obvious risk’ even if the responsibility for the covers and the areas below them were Severn Trent’s. There was nothing in the scanty documentation of the inspections to show this had been done.

This was, then, a defect that was not actually known to the landlord but which the landlord ought, in all the circumstances, to have known of, as would be expected of “any landlord taking reasonable care to ensure that a proper inspection of inspection covers over voids within the gardens of domestic premises was undertaken given the clear and obvious risks.”

Bolsover appealed to a circuit judge. The appeal was upheld, the CJ finding that there was no duty to inspect under s.4, merely a duty to take such care as was reasonable to ensure that occupiers were reasonably safe. However, Bolsover’s argument that the inspection covers were outside its repairing obligation, but the CJ found that an apparent defect that might cause injury would still engage “a duty to act reasonably, that is, take such care as was reasonably required to see if the tenant was reasonably safe”.

The DDJ erred in finding that section 4(1) implied a duty on the part of the respondent to inspect to ensure relevant defects did not develop, however such a misdirection was not material because “it was conceded that had such inspection revealed a patent defect or risk of injury to the tenant the duty to take reasonable care would arise notwithstanding the fact that the cover was not their property or that section 4 did not imply a duty to inspect”;

As to the faults to the inspection covers, these were not apparent and there was no duty to inspect further. So s.4 DPA was not engaged.

Ms R appealed to the Court of Appeal.

The Court of Appeal upheld the appeal, but on different grounds to the DDJ at first instance.

In Lady Justice Nicola Davies DBE’s lead judgment

There was no general duty to inspect.

Does section 4 of the DPA 1972 require a landlord to implement a system of inspection? I do not read any of the authorities cited by the parties as requiring a landlord, without more, as being under a duty to implement a system of regular inspection in order to satisfy the provisions of section 4. In each case it is a question of fact, one aspect of that being the knowledge of the landlord as to any likely or known risks or problems in the property. In this case there had been inspections: one triggered by the commencement of a new tenancy; another by a ten-year stock review. These were occasions when it was reasonable to implement inspections.

The issue was therefore whether, on the inspections that had been carried out, whether reasonable care had been taken in them, and so whether the landlord had or should have discovered the defect.

There was no documentary or witness evidence that could show the inspections had been carried out to a reasonable standard to satisfy the duty of care to do so. There was no evidence sufficient to support the CJ’s finding that the inspections had been carried out with reasonable care.

As Ms R’s evidence as to how the accident had occurred had been accepted, this shifted the evidential burden to Bolsover to show the steps it had taken to ensure compliance with s.4 DPA.

The purpose of section 4 is to ensure that the landlord is unable to avoid liability to those to whom the duty is owed, to maintain the premises free from any (relevant) defect. On the facts as found by the DDJ and accepted by HHJ Owen, there was a physical defect. On the facts as found by the DDJ a pressure test would have been sufficient to reveal the defect. The test entailed no more than a measure of lateral pressure on the cover itself. It was not a complicated test, it did not entail lifting the cover. Given the defects around and below the cover and the period of time over which Mr Hill said they would have been present, such a test at the time of either inspection would have identified a problem in the stability of the cover caused by the absence of adequate support. In those circumstances it was a defect of which the respondent knew, or ought to have known, had the inspection been properly carried out.

Bolsover again argued that its contractual repairing obligations did not extend to the garden or inspection covers, but again, the concession that “if the visual inspection revealed an apparent defect which might place the tenant at risk of injury there would still be a duty to act reasonably, that is, to take such care as was reasonably required to see if the tenant was reasonably safe” was taken to mean that DPA s4(1) was engaged. Alternatively, the garden and inspection cover fell under ‘structure and exterior’ of the property and it did not matter that the actual repairs would be the responsibility of Severn Trent, or, further, Bolsover had a right of entry to inspect the condition of the property and carry out necessary repairs, regardless of the extent of its repairing obligation to the tenant.

On a duty to inspect, though, we should note Lord Justice Males’ broadly concurring judgment, which appears to suggest that there is a duty to inspect, at least in certain circumstances:

Finally, HHJ Owen said that there was no duty on the respondent to inspect to ensure that relevant defects did not develop. As explained above, however, the only relevant question is whether the respondent ought in all the circumstances to have known of the relevant defect. In this case, the DDJ’s findings meant that there was a clear and obvious danger, that a reasonable landlord would have ensured a system of proper inspection, that this would have involved a pressure test, and that such a test would have revealed the defect which was of long standing. It would not on the facts found have been merely a potential defect which might develop, but an existing defect, namely the deterioration in the support structure for the inspection cover.

And that sounds rather like a duty to inspect where there is a clear and obvious danger. As Mr Justice Moor then concurs with both judgments, the point is perhaps not clearly decided.

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 +.
Posted in Disrepair, Housing law - All and tagged , .

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