Landlord installing gas fire – Tenant suffering carbon monoxide poisoning resulting from defect in fire – Tenant claiming damages for personal injury – Section 4 of Defective Premises Act 1972 – Section 11 of Landlord and Tenant Act 1985 – Judge dismissing claim – Appeal allowed
The first defendant, H, owned 181 Stainland Road, Halifax, West Yorkshire, which he let for residential occupation (the property). In 1985 H received a notice from the Gas Board in relation to the gas fire in the lounge of the property, and he arranged for a new gas fire to be fitted. Shortly afterwards H let the property to the claimant and his wife. The parties signed a shorthold tenancy agreement for one year, but no copy survived and thereafter the tenants held over with no further written agreement or documentary record. The new gas system was tested by NEGAS, which issued a service job voucher to H offering a choice of yearly service agreements. However, H did not enter into a service agreement and knew that the tenants did not intend to do so either.
On 4 February 1994 the claimant’s wife entered the property and found the claimant unconscious in front of the lit gas fire. He was taken to hospital where he was diagnosed as suffering from carbon monoxide poisoning caused by emissions from the gas fire. The fire was inspected by experts shortly afterwards and was found to have a number of defects.
The claimant issued proceedings for personal injuries: (i) in contract on the basis that H was under an implied obligation to keep the gas fire in repair and proper working order under section 11 of the Landlord and Tenant Act 1985 (the 1985 Act); and (ii) in tort on the basis that, by reason of his failure to service the gas fire regularly or at all during the course of the lease and thereby to learn of and/or prevent the development of the defects in the fire, he was in breach of section 4 of the Defective Premises Act 1972 (the 1972 Act). The judge dismissed the claim, finding that it could not be implied from the facts that H had sufficient knowledge of the defect so as to give rise to an obligation to repair. The claimant appealed.
Held: The appeal was allowed.
The judge had erred in equating the claimant’s task of establishing a breach of duty under section 4 of the 1972 Act with his need under section 11 of the 1985 Act to demonstrate notice (actual or constructive) of the actual defect giving rise to the injury. The question the judge should have asked himself was whether, in the light of the findings of fact that he had made, H had failed in his duty to take such care as was reasonable in all the circumstances to see that the claimant was reasonably safe from injury. If the judge had approached the matter on that broad basis, the answer would have been that by failing to repair or keep in working order the gas fire over a substantial period prior to the date of the claimant’s injury and by his failure to service or inspect or make enquiry of the tenant as to the state of the gas fire, in the light of his knowledge that the tenant was not having it serviced, H was in breach of his duty under section 4 of the 1972 Act. Accordingly, judgment was entered for the claimant for damages to be assessed, and paid on the basis of 80% contributory negligence on the part of the claimant.
Stuart Brown QC and George Sigsworth (instructed by Rice-Jones & Smiths) appeared for the claimant; the first respondent appeared in person; David Partington (instructed by Musa A Patel & Co, of Dewsbury) appeared for the second defendant, the trustee in bankruptcy of the first defendant.
Thomas Elliott, barrister
