• A landlord’s
repairing covenant extends only to defects of which he has actual knowledge
• But liability
under the Defective Premises Act 1972 may be wider
As a general
principle, a person who is injured while visiting someone else’s property may
bring an action for compensation under the Occupiers’ Liability Act 1957. As
the name of the Act suggests, such an action will be brought against the
occupier, rather than the owner, of the premises concerned (assuming that these
are not one and the same). In particular, in the case of leasehold property, it
is the tenant rather than the landlord who is regarded in law as the ‘occupier’
for this purpose.
The logic of this is
less clear where the injury results from disrepair and it is the landlord who
has a duty to repair. Nevertheless, the original answer, given by the House of
Lords in Cavalier v Pope [1906] AC 428, was that an injured
visitor must still look for redress to the tenant as occupier. Even when
parliament decided that landlords should not be relieved of all responsibility,
the result (section 4 of the Occupiers’ Liability Act 1957) was to give an
injured visitor the same rights against the landlord as the tenant would have
had. In practice, this meant that the landlord could not be liable (either to
the tenant or to a visitor) unless he had been notified of the defect in
question (McCarrick v Liverpool Corporation [1947] AC 219).
The limitation thus
placed upon the rights of an injured visitor were regarded by the Law
Commission as unacceptable, and the law was changed by section 4 of the
Defective Premises Act 1972. This provides that where premises are let under a
tenancy (or occupied by a contractual right) that obliges the landlord to
repair, the latter owes to all persons who might reasonably be expected to be
affected by defects in the premises a duty to take reasonable care to see that
they are safe from personal injury or from damage to their property. This duty
is owed if the landlord knows, or ought in all the circumstances to have known,
of the relevant defect. The crucial question, that is whether section 4 really
does make a landlord liable irrespective of whether he has notice of a defect,
has recently been answered by the Court of Appeal.
Sykes v Harry [2001] 17 EG 221 concerned a house owned by the
defendant and occupied by the claimant and his wife. The property was
originally let in the mid-1980s on a tenancy for one year, and, when that
expired, the tenants held over without further written agreement. Shortly
before the tenancy commenced, the defendant installed a new gas fire in the
lounge to replace an earlier fire that was in a dangerous condition. However
(and significantly as it turned out), the defendant neither entered into any
service agreement with the Gas Board in respect of this fire nor expected his
tenants to do so.
Some eight years
after their tenancy started, the claimant was found by his wife unconscious in
front of the lit fire, where he had apparently fallen asleep several hours
previously. He was taken to hospital and diagnosed as suffering from carbon
monoxide poisoning, which led to brain damage. The carbon monoxide was shown to
have been emitted by the gas fire through a combination of defects in the fire
itself and blockages in the chimney. Crucially, an expert’s report concluded
that if the fire had been serviced, the defects and blockages would have been
discovered and the danger would thereby have been averted.
The view of the
trial judge was that, by virtue of section 11 of the Landlord and Tenant Act
1985, the landlord was obliged to keep in repair and proper working order the
installations for both the supply of gas and the space heating. However, he
accepted that this obligation applies only where the landlord has knowledge of
a defect (which includes having sufficient information about the defect to put
a reasonable person on inquiry as to whether repairs are needed). Having
applied that test, the judge held that the claimant could not establish a
breach of covenant by the landlord.
He also concluded
that the alternative ground of claim, section 4 of the Defective Premises Act
1972, was equally fruitless. The judge acknowledged that the need for notice to
be given by the tenant had been removed, but took the view that the definition
of ‘relevant defect’ meant that, as between landlord and tenant, section 4 gave
no greater protection than would have been conferred by the lease. On appeal, a
very different view was taken of the claim under the Defective Premises Act.
The Court of Appeal
was unanimous in its view that the judge’s approach to section 4 was wrong.
Potter LJ accepted that the 1972 Act was specifically designed to break away
from the ‘historic limitations placed by the common law upon the duty/liability
of a landlord to persons injured as a result of defects in the condition of the
premises’. A claimant under section 4 (which can include the tenant) merely has
to show that the landlord has failed to take such care as is reasonable in all
the circumstances to keep him safe from personal injury. This duty is owed
wherever the landlord ought, in all the circumstances, to have known of the
relevant defect — a test that is ’emphatically not expressed to be limited by
concepts of contractual notice’.
The judge’s findings
of fact were such that the court was able to conclude that the landlord was in
breach of the duty imposed by section 4 (albeit subject to an 80% reduction on
the basis of the claimant’s contributory negligence — the judge had regarded
him as being fully aware both of the need for gas appliances to be regularly
serviced and of some problems with the fire).
