Defective Premises

February 27th, 2019

In Rogerson v Bolsover District Council (2019) EWCA Civ 226 the appellant was the tenant of a council house.  She suffered injury as the result of an accident.  The issue was whether the Council could be liable under Section 4 of the Defective Premises Act 1972.  The relevant defect would have been discovered if the Council had implemented a system of regular inspection.  Did the Council as landlord have a duty to inspect?

Nicola Davies LJ said:-

“22.    The question raised by section 4(1) is: did the landlord take such care as is reasonable in all the circumstances to ensure that all persons who might reasonably be affected by defects in the state of the premises are reasonably safe from personal injury or damage which could be caused by a relevant defect? This is a fact specific question which has to be answered in the context of the circumstances of the individual case.”

“25.    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 …”

26. As a matter of fact, inspections were carried out. The issues are therefore whether reasonable care was taken in carrying out the inspections and whether the defect which resulted in the appellant’s accident was, or should have been, discovered as a result of either inspection.”

“31.    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.  …”

Males LJ added:-

“35.    The landlord’s obligation under subsections (1) to (3) of section 4 of the DPA 1972 depends on the landlord being under an obligation to the tenant for the maintenance or repair of the premises. A first step, therefore, is to ascertain the landlord’s duties under the tenancy agreement or by imposition of law. The duty is owed to all persons who might reasonably be expected to be affected by defects for which the landlord has a maintenance or repairing responsibility. This includes the tenant: Sykes v Harry [2001] EWCA Civ 167 at [22].

36. The landlord’s duty is to take such care as is reasonable in all the circumstances to see that such persons are reasonably safe from personal injury or property damage caused by a “relevant defect”. Such a defect is one which exists at or after the “material time” and which arises from or continues because of an act or omission of the landlord which constitutes a failure of his repairing or maintenance obligation or which would have done if he had notice of the defect in question.

37. The duty to take such reasonable care only arises if the landlord knows of the defect or if he ought in all the circumstances to have known of it: see subsection (2). The words “ought in all the circumstances to have known of the relevant defect” are general words and mean what they say. They are not dependent on any concept of contractual notice: Sykes v Harry at [19] to [21]. The statute does not refer to any duty on the landlord to inspect the premises, but in a case where the landlord does not have actual knowledge, the question whether he ought to have known of the defect will usually depend upon what steps he ought reasonably to have taken to inspect the premises and whether an inspection which he ought reasonably to have carried out would have revealed the defect in question.

38. What steps a landlord ought to take by way of inspection will depend on all the circumstances. The question is what a competent landlord exercising reasonable care would do. Sometimes a visual inspection will be all that is required, but in other circumstances something more may be needed. There is no rule of law that a visual inspection is all that is necessary. Nor is there any rule that a visual inspection is not enough. What is needed will depend on the nature of the property.

39. What is required in any particular case is a judgment for the trial judge to make, taking account of all the circumstances, including the extent to which the defect in question was reasonably apparent or (if not apparent) foreseeable, the nature and severity of the risk which it posed, any applicable safety regulations and what an inspection would involve. An appeal court should not interfere with the trial judge’s evaluation unless some clear error has been made.”

“41.    …   the question whether a landlord is under a duty to inspect (and if so, with what frequency) does not arise in the abstract, but only as bearing on the question whether he ought in all the circumstances to have known of the defect. Although in practice the two stages will be telescoped, the section envisages two enquiries: first, whether the landlord ought reasonably to have discovered the defect; and second, if so, what reasonable care required him to do about it. Usually of course, once the defect is discovered or if it ought to have been discovered, it will be obvious that a repair is necessary.

42. As already indicated, subsections (1) to (3) do not apply unless the landlord owes an obligation to the tenant for maintenance or repair. Subsection (4), however, extends the landlord’s duty to a case where the landlord has a right of entry in order to carry out any description of maintenance or repair of the premises. Once the landlord is in a position to exercise that right, he is treated for the purpose of subsections (1) to (3) as if he were under an obligation to carry out the maintenance or repair in respect of which he has a right of entry. However, the landlord’s duty in such a case remains a duty to take reasonable care and arises only if the landlord knows of the defect in question or if he ought in all the circumstances to have known of it. …”

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