The Court of Appeal handed down judgment this morning in the case of Rogerson v Bolsover District Council  EWCA Civ 226, which raised issues as to the interpretation of Section 4 of the Defective Premises Act 1972.
This case is a reaffirmation that one purpose of Section 4 is to ensure that landlords cannot turn a Nelsonian eye to defects in the premises which they let to tenants.
Section 4 was specifically intended (by reference to The Law Commission Report “Civil Liability of Vendors and Lessors for Defective Premises”, 15th December 1970) to move away from the unsatisfactory state of the common law at that time by which a landlord was not liable for injuries caused to a tenant’s family or visitors by dangerous defects in the state of a rented property and was only liable to the tenant for injuries caused by such defects where contractual notice had been given.
The main features of the case may be summarised as follows:
– Ms Rogerson was a tenant of one of the Defendant’s properties, where she lived with her two young children.
– On 7th September 2014, she was mowing her lawn when she stepped onto an inspection cover, which gave way and caused her to fall into the void beneath.
– She brought a claim for personal injuries, which was heard by Deputy District Judge Haskey on 27th September 2017.
– The Trial Judge accepted Ms Rogerson’s account of the accident and found that the support for the inspection cover had been in an unsafe condition for a considerable period of time, including when the Defendant’s operatives inspected the Property in May 2013 and January 2014.
– The Trial Judge found that the inspection cover posed “a clear and obvious safety risk…if inadequately protected would prove a serious danger to any tenant and, in particular, a significant risk to young children”.
– The Defendant called no evidence at trial from any of its operatives who had carried out inspections at the Property.
– The Trial Judge accepted the proposition that, if the Claimant proved the facts of her accident, the evidential burden of proof transferred to the Defendant to demonstrate its compliance with the duty imposed upon it by Subsection 4(1) to take such care as is reasonable in all the circumstances. In the absence of direct evidence from the Defendant’s operatives, the Defendant failed to satisfy her that it had taken reasonable care.
– Therefore, the claim succeeded.
– The Defendant’s appeal against judgment succeeded before HHJ Owen QC on 19th February 2018.
– The Grounds of Appeal were wide-ranging, touching almost every aspect of the Trial Judge’s findings, including her refusal to make a finding of fundamental dishonesty.
– In allowing the Defendant’s appeal, HHJ Owen QC found that Section 4 does not incorporate a duty on the part of a landlord to inspect its properties “to ensure that relevant defects do not develop”. He also found that the happening of the accident did not raise a prima facie case as to breach of the landlord’s duties and the Claimant had not proven that the Defendant’s inspections had been deficient.
– Further, HHJ Owen QC ruled that a competent inspection would not have revealed the defect, because there was no duty to carry out more than a visual inspection.
– HHJ Owen QC rejected the Defendant’s arguments as to the assessment of damages and fundamental dishonesty. He also rejected an argument that the inspection cover did not fall within the ambit of Section 4 because it belonged to Severn Trent Water Limited.
The Court of Appeal
– Lord Justice Lewison granted the Claimant permission for a second appeal on reading Mr Russell’s Skeleton Argument and Grounds of Appeal, because the appeal raised important issues of principle as to the duties imposed on landlords by Section 4.
– After hearing argument on 6th February 2019, Lady Justice Nicola Davies DBE, Lord Justice Males and Mr Justice Moor unanimously allowed the appeal.
– The Court of Appeal took the opportunity to re-state that the duty imposed by Subsection 4(1) is equivalent to the common duty of care and is based on the concept of reasonableness (as previously found by the Court of Appeal in Sykes v Harry).
– The Court of Appeal adopted Mr Russell’s description of the limitation imposed on the landlord’s duty by HHJ Owen QC as “unworkable”.
– What is reasonable will depend on the facts of each case. On the facts of this case, the defect was discoverable at the time of the Defendant’s prior inspections and should have been repaired.
– A landlord is not necessarily required to implement a system of regular inspections. What is reasonable will depend on the risks and problems associated with the property in question in each case.
– The Court of Appeal agreed with Mr Russell that, having accepted the Claimant’s evidence, it was then for the Court to examine the Defendant’s evidence as to the steps which it had taken to comply with Section 4, which can properly be described “as shifting the evidential burden”.
– The Defendant’s argument (raised again before the Court of Appeal) that the defective equipment could not form part of the demised premises was rejected. Lord Justice Males found this submission by the Defendant to be “detached from reality”, its own witness having accepted a duty to inspect and repair the inspection cover.
– The Court of Appeal’s judgment in this case does not create any significant new law. However, it is an important restatement of the principles which govern the duties imposed on landlords by Section 4 of the Defective Premises Act 1972.
The Court of Appeal’s judgment can be found here.