Occupiers’ liability – Personal injury – Duty of landlord – Claimant tenant slipping on steps leading to defendant landlord’s property and suffering back injury – Claimant seeking damages for personal injury – Whether defendant in breach of statutory duty and/or common law duty of care – Claim dismissed
The defendant owned a mid-terraced Victorian house on three floors consisting of a basement, ground floor and first floor with a concrete path and three steps leading to the front door. The steps were about one metre wide and 30cm deep. At the instance of the defendant, the steps had been painted with red paint to improve their appearance. To the left of the path, a small area had been stepped down to basement level and was separated from the concrete path by a small wall. There was a drop to the basement level of over eight feet and the wall offered very limited protection against a fall from the steps down to that level.
The claimant was the tenant of the property. Under clause 3.2 of the tenancy agreement, the landlord covenanted to provide and maintain the structure and exterior in good repair except in respect of damage caused by the tenant or any invitee or insofar as the tenant was liable to keep the premises in repair.
The claimant fell from the steps into the basement area and suffered a severe back injury as she was climbing the steps. She brought a claim for damages for personal injury against the defendant, alleging that the steps were unduly slippery as a result of being painted, wet and the presence of dirt. It was also alleged that the wall at the side of the steps was not sufficiently high and/or was not provided with a guardrail or handrail to prevent someone failing down to basement level. The claimant contended that those failures gave rise to: (i) a breach of section 2 of the Occupiers Liability Act 1957; (ii) breaches of clause 3.2 of the tenancy agreement and section 4 of the Defective Premises Act 1972 (concerning the landlord’s duty of care by virtue of the obligation or right to repair the demised premises); and (iii) a breach of the defendant’s common law duty of care.
Held: The claim was dismissed.
(1) While the duty imposed under section 2 of the 1957 Act, to take such care as in all the circumstances of the case was reasonable to see that visitors would be reasonably safe in using the premises for the which he was invited or permitted by the occupier to be there, appeared general in application, a landlord’s duty was defined by section 4 of the 1957 Act which had been replaced by section 4 of the Defective Premises Act 1972. The 1957 Act had no application in the present case and it was to section 4 of the 1972 Act that one had to look, in the first place, to find the extent of the landlord’s duty in tort: Murphy v Brentwood District Council [1991] 1 AC 398 considered.
(2) In order to show a breach of clause 3.2 and/or section 4 of the 1972 Act, the claimant had to show that the premises were not in good repair. Repair constituted the idea of making good damage so as to leave the subject so far as possible as though it had not been damaged. A duty to repair could not be equated with a duty to make safe and a duty to keep in good condition could not encompass a duty to put in a safe condition. A tenant had to take a house as he found it and neither a landlord nor a tenant was bound to provide the other with a better house than there was to start with: Anstruther Gough Calthorpe v McOscar [1924] 1 KB 716; Quick v Taff Ely Borough Council [1986] QB 809; and Alker v Collingewood [2007] 1 WLR 2230 considered.
On the facts of the present case, it could not be said that the presence of the paint caused the steps not to be in good repair. Accordingly the presence of the paint did not give rise to a breach of clause 3.2 or section 4 of the 1972 Act.
(3) In Cavalier v Pope [1906] AC 428, the House of Lords decided that a landlord who let premises in a dangerous condition owed no duty to remedy the defect and no duty of care to a third party injured as a result of the defect. The court was bound by that decision so far as the unguarded drop was concerned and therefore had to conclude that the defendant had no duty to guard it. But so far as the application of the paint was concerned, there was no reason why the defendant should not have a duty to take reasonable care to ensure its application did not create an unnecessary risk of injury. Otherwise a landlord would have carte blanche to act with impunity and create dangers which would not be caught by the 1972 Act.
Therefore, where personal injuries resulted from a failure to repair then the duty of care was that set out in the 1972 Act but where the Act did not apply, as in the present case, a landlord owed a duty to take reasonable care not to create an unnecessary risk of injury. However, on the evidence, the court could not conclude that there had been a breach of duty: Cavalier v Pope applied; Rimmer v Liverpool County Council [1984] 1 EGLR 23, (1983) 269 EG 319; Targett v Torfaen Borough Council [1991] EGCS 125; Lips v Older [2005] PIQR 14; and Sowerby v Charlton [2006] 1 WLR 568 considered.
Niazi Fetto (instructed by Fentons Solicitors LLP) appeared for the claimant; Michael Pooles QC (instructed by Greenwoods Solicitors LLP) appeared for the defendant.
Eileen O’Grady, barrister
