Defective Premises Act 1972 s4

british landlords associationAdams v Rhymney Valley DC (200 ) HLR 44 , CA

Council not in breach of duty of care in installing windows according to standards at time of installation The council installed double-glazing with locks that had removable keys rather than button locks. The claimant tenant’s family kept the windows locked as a safety measure and hung the key in the kitchen. In the course of a fire, the family was unable to escape through the locked windows and three children died. The council owed a duty of care because they had fitted the windows (Rimmer v Liverpool CC (P7.13)). The claimant took proceedings for damages for negligence and breach of statutory duty. The Court of Appeal held that the landlord was not in breach of duty. The council was to be judged according to the standards of the reasonably skilful window designer and installer at the date of installation. At the time of installation button locks and key locks were not negligent choices for window security. There was no breach in opting for one rather than the other. The design of the windows did not oblige the local authority to install a smoke alarm.

P10.2 Alker v Collingwood Housing Association [2007] EWCA Ci 4 ; [2007] HLR 29; [2007] L&TR 2 ; 7 February 2007, CA
A duty to maintain and repair did not encompass a duty to make property safe The claimant was a tenant of the defendant landlord. Her front door contained a glass panel. When having difficulties opening the door one day she pushed the glass panel with her hand. The glass broke and she received serious injuries to her forearm. A clause in the tenancy agreement required the claimant to grant entry to her landlord to inspect and carry out repairs and improvements. A repairing covenant included the provision that her landlord must keep the property ‘in good condition’. The claimant made a claim for breach of Landlord and Tenant Act 1985 s11 and breach of statutory duty under Defective Premises Act 1972 s4. In the county court, Recorder Clayton QC found that: the glass panel in the door was not safety glass but ordinary annealed glass; it was not broken or in disrepair; the use of ordinary annealed glass in doors presents a safety hazard and that had been understood since at least 1963; the property had been constructed in accordance with the building regulations in existence at the time. He held that the landlord was not on actual notice of any disrepair to the front door and dismissed the claim under s11 but held the landlord liable for breach of the statutory duty of care under s4. The landlord appealed. The Court of Appeal allowed the appeal. The issue was whether the state of the glass panel constituted a ‘relevant defect’ for the purposes of s4(3). The glass panel was not in disrepair. The court rejected the claimant’s
submission that it was nevertheless a relevant defect because it was dangerous and the obligation to maintain and to keep in good condition included an obligation to make the property safe. A duty to repair, maintain or keep in good condition did not equate to a duty to put in a safe condition. A property may offer many hazards, but s4 does not necessarily require a landlord to make safe a dangerous feature. Parliament, when enacting the Defective Premises Act 1972, chose to link the duty of care imposed by s4(1) to the landlord’s failure to carry out an obligation ‘for the
maintenance or repair’ of the premises rather than link the duty of care to a failure to remedy defects in any more general sense.

Boateng v Camden LBC July 200 Legal Action 22, 7 March 2000, CA Landlord not liable for burns to baby caused by hot pipes

The claimant, then a nine-month-old baby, fell from his bed and became trapped against hot central heating pipes. He suffered disfiguring burns to his face. He claimed damages for personal injuries which it was alleged were sustained due to the defendant landlord’s negligence and/or breach of Defective Premises Act 1972 s4. It was claimed that the central heating system was on constantly and was operating at a temperature some ten degrees in excess of that to which it had been set and that the pipes should have been protected so as to prevent accidental contact resulting in injury. Nelson J dismissed the claim. A local authority could reasonably assume that the parents of a small baby, able to crawl, would take reasonable care to protect that baby from injury from unprotected pipes. To have the heating system on 24 hours amounted neither to negligence nor to a defect under the 1972 Act. Any excess of temperature could not have been prevented and did not cause the accident. Despite the identical case of Ryan v Camden LBC (1982) 8 HLR 75, the local authority had been reasonable to conclude that the risk of injury was so slight that it need not take the step of protecting the pipe work. The court noted that no British Standard Code of Practice required that such pipes should be protected.

Boldack (minor) v East Lindsey DC ( 999) HLR 4 ; May 998 Legal Action 22, CA Paving slab left leaning upright in garden not a ‘relevant defect’

A council tenant had been in her new home for only four days when her five-year-old child was injured in the back yard by a two-foot-square paving slab, which had been left resting against the rear wall of the house. The plaintiff child sued for damages for personal injury, which were agreed at £5,000, but the council denied liability. The claim was based on Defective Premises Act 1972 s4 and/or common-law negligence. The Court of Appeal rejected both claims. First, there was no want of ‘maintenance or repair’ which could trigger the duty under s4 to prevent harm being caused by a ‘relevant defect’. Furthermore, even the express covenant in the tenancy agreement was only to repair the structure or exterior of the dwelling. The slab was simply resting against the rear wall. Even if s4 did apply, the duty under it would be triggered only if the council knew or ought to have known of the presence of the paving slab, and that could not be proved on the evidence. Second, on negligence, the Court of Appeal held itself bound by Cavalier v Pope [1906] AC 428, HL, in which the House of Lords had held landlords immune from liability to non-tenants coming on to the premises and being injured by defects. The Court of Appeal decided that this decision still represented the law and had not been overruled by subsequent decisions such as Donoghue v Stevenson [1932] AC 562, HL. Even if there were a duty at common law arising from a pre-letting inspection, or responsibility to conduct one, there was no evidence to support a contention that the council’s visiting officer had been negligent in failing to ensure the removal of the slab.

McAuley v Bristol CC [ 992] QB 4; [ 99 ] WLR 9 8; [ 992] All ER 749; ( 99 ) 2 HLR 8 ; [ 99 ] 2 EGLR 4; [ 99 ] 4 EG ; ( 99 ) 89 LGR 9 , CA Landlord liable under s4 for damage resulting from defective garden step where implied right to enter for purposes of repairing any defect

The tenant was injured falling on a defective step in the rear garden. Under the tenancy agreement, the tenant was expressly required to ‘give the council’s agents and workmen all reasonable facilities for entering upon the premises at all reasonable hours for any purposes which may from time to time be required by the council’. The Court of Appeal held that this led to the proper inference of an implied right to enter for the purpose of repair to remedy any defects which might cause injury to lawful visitors or to the tenant himself. Accordingly, the council owed a duty of care in respect of the whole premises. As it had known of the defective step and not repaired it, it was in breach of duty.

Morley v Knowsley BC May 998 Legal Action 22, CA Landlord ought to have known of defect by carrying out a pre-letting inspection

The tenant moved into her council home, a two-storey house, on 21 November 1994. On 23 December 1994 she fell down the stairs because a piece of wood broke off the leading edge of one of the steps. She brought an action for personal injury damages. Assistant Recorder Knopf awarded damages of £2,500 under Defective Premises Act 1972 s4 (including interest). He held that, given the age of the house and the fact that the accident happened so soon after the tenant had moved in, the landlord ‘ought in all the circumstances to have known of the relevant defect’ for the purposes of
s4(2). Accordingly, the council owed a duty to take reasonable care. On the facts, that required a pre-letting inspection, including a check of the state of the staircase. The council had called no evidence of any such inspection and could not show that it had taken any care at all. The Court of Appeal described the findings as ‘more stringent than some judges would have made’, but refused the council leave to appeal.

P10.7 Smith v Bradford MDC ( 982) 4 HLR 8 ; ( 982) 44 P&CR 7 ; ( 982) 80 LGR 7 , CA Landlord liable for damage caused by fall from patio

Mr Smith, a council tenant, fell from a paved patio area in his garden on to a grassed area four or five feet below and injured himself. The patio had been built by a former tenant. Mr Smith had complained previously about its dangerous state and it had been inspected by a council official. The Court of Appeal held that the word ‘premises’ included the paved area. As the council had reserved a right to enter and repair, it was liable under Defective Premises Act 1972 s4.

Sykes v Harry [200 ] EWCA Ci 7; [200 ] QB 0 4; [200 ] WLR 2; (200 ) HLR 908; [200 ] 7 EG 22 ; (200 ) 82 P&CR 44 ; (200 ) Times 27 February, CA Not necessary to establish actual or constructive notice of defect under s4

The claimant was an assured shorthold tenant. The tenancy was subject to Landlord and Tenant Act 1985 s11 and the tenant was obliged to give access to carry out repairs. In 1994 the claimant was taken to hospital where he was diagnosed as suffering from carbon monoxide poisoning, which was admitted at trial to have been caused by emissions from a gas fire. In proceedings for personal injuries, the judge found that the gas fire and flue were defective as they had not been serviced for a long period. The defendant knew of the need for servicing and the lack of servicing
and should have been put on enquiry of the risk of development of defects. The defendant’s obligation under s11 was to keep the gas fire in repair and proper working order. The judge held that the landlord was not liable under s11 in the absence of knowledge of the defects, applying O’Brien v Robinson (P6.1). The landlord also owed a duty of care under Defective Premises Act 1972 s4. The judge held that the duty in tort was no more extensive than the obligation under s11 and that accordingly, in the absence of actual knowledge of a particular defect, the landlord was not liable. The claimant appealed against the finding under s4. The Court of Appeal held that the judge erred in equating the task of the claimant as tenant in establishing a breach of duty under s4 with the need under s11 to demonstrate notice (actual or constructive) of the actual defect giving rise to injury. Section 4(3), when defining a relevant defect by reference to an act or omission by the landlord which constituted or would, if he had notice of the defect, have constituted a failure by him to carry out his obligation, showed that the duty under s4 was not to be confined in the same way as the contractual obligation was under O’Brien v Robinson. A claimant under s4 merely had to show a failure on the part of the landlord to take such care as was reasonable in the circumstances to
see that the claimant was reasonably safe from personal injury. That duty was owed if the landlord ‘ought in all the circumstances’ to have known of the relevant defect. That was a general test of negligence. There was no express or implied exclusion of the tenant from the category of persons who might be affected. Accordingly the test was whether the landlord by his failure to service the gas fire regularly or at all or otherwise to take steps to check or make appropriate enquiries of the tenant as to the state of the gas fire, failed in his duty to take such care as was reasonable to see that the claimant was reasonably safe from injury. On that test and the judge’s findings of fact, the landlord was in breach of duty under s4. The judge’s finding of 80% contributory negligence because the claimant knew of the defects in the fire would not be disturbed. The House of Lords refused leave to appeal: [2002] 1 WLR 2286.

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