Mann v Martin (2024) EW Misc 23 (CC)
Standalone section 4 Defective Premises Act 1972 cases are quite unusual. It is more common as an additional/secondary head in a disrepair claim, but this county court case is such a relatively rare beast.
Ms Mann is the daughter of the assured shorthold tenant of the property owned by Ms Martin, with the tenancy starting on 4 April 2013. The property had a garden with a dividing wall to next door. There was an adjoining section of fence, with a post next to the wall, which, on the evidence was found to have been replaced by the next door neighbour shortly after the tenant and her daughter moved in, and before 19 May 2013.
On 19 May 2013, Ms Mann was leaning on the wall, talking to the neighbour, when the wall collapsed, leaving her with a compound leg fracture and requiring plastic surgery. This was the injury for which the present claim was made.
At trial, the court was asked to decide the following issues:
i) Did the Defendant, prime facie, owe the Claimant a duty of care under s.4(4) of the DPA, and if so, what was the scope of that duty?
ii) If so, did the Wall suffer from a relevant defect?
iii) If so, did the Defendant know or ought she to have, in the circumstances, known about the defect?
iv) If so, did this defect cause the Claimant injury?
v) If so, did the Defendant, fail to take such care as is reasonable in all the circumstances to see that the Claimant was reasonably safe?
vi) If so, did the Defendant’s failure cause the Claimant’s injuries?
On i), perhaps unsurprisingly, the court held that there was a prima facie duty under.s4(4), but rejected any attempt to suggest that this was broader than the section 4(1) duty to make safe, citing Lafferty v Newark & Sherwood District Council (2016) EWHC 320 (our note ). It has to be an issue of maintenance or repair, not, for example, a latent defect in construction.
On ii) the court found that on the evidence there was not a latent defect to the wall that caused its collapse. The alteration to the adjoining fence panel and post had most likely contributed to or caused fractures to the wall. There was no evidence of excessive force being applied by Ms Mann.
On iii), this fell to be the determining issue of the case.
Ms Martin’s uncontroverted evidence as that she did not know of the defect to the wall. The issue then was whether she ought to have known about the defect.
I agree that where the landlord, as in the present case, did not have actual knowledge then the question of whether s/he ought to have known of the defect will usually depend upon what steps s/he ought reasonably to have taken to inspect the premises; and where, as in this case, an inspection was carried out the issues are whether reasonable care was taken in carrying out the inspections and whether the defect was, or should have been, discovered as a result of the inspection ((26) & (37) Rogerson v Bolsover District Council (2019) EWCA Civ 226 CA). (Our note)
I, further agree, that the Defendant was under no duty to carry out a structural survey or examination of the Wall and what was required was a reasonable visible examination for obvious defects.
As I have found elsewhere in this judgment, a pre-tenancy inspection was carried out on the Defendant’s behalf on 4 April 2013. That inspection does not note any defects in, or disrepair to, the Wall.
Ms Mann contended that the pre-tenancy inspection was inadequate as it did not mention the wall and defects should have been apparent. This was not decisive either way, but the tenant herself had not noted any disrepair or defect other than the wall after moving in, although she had complained about the missing adjoining fence. The tenant had herself leaned on the wall on a number of occasions on her own account while talking to the neighbour.
It followed that there were no obvious defects to the wall apparent at that time and that an inspection conducted with reasonable care pre-tenancy would not have identified a defect.
Given my findings on the cause of the defect to the Wall I should, for the sake of completeness, also set out my views on whether the Defendant ought to have known that a defect in the Wall arose as a result of work carried out to the adjacent fence post. There is, simply, nothing in the evidence that would lead me to fix the Defendant with such knowledge: the work was not performed by her agent and I do not think that the Defendant can be said to be under an obligation to carry out a specific (as opposed to a routine periodic) inspection of the work, once completed.
As the landlord neither knew nor ought to have known of the defect to the wall, the claim fell to be dismissed.