The tenant of a flat, who tripped over an uneven paving stone outside his block, has won his appeal against a ruling that he was not entitled to damages under the implied repairing obligations in section 11 of the Landlord and Tenant Act 1985 because he hadn’t notified his landlord of the defect.
Lewison LJ, at the Court of Appeal, overturned the earlier decision and awarded Samuel Edwards more than £3,000 in damages for his injured knee, to be paid by landlord Baladas Kumarasamy. He ruled that it was not a precondition to liability under section 11 that notice of the defect had to be given.
Describing the case, the judge said: “One summer evening in 2010 Mr Edwards was taking rubbish out from a second floor flat which he and his partner rented from Mr Kumarasamy. He tripped over an uneven paving stone in the pathway between the front door of the block and the communal bins in the car park, as a result of which he injured his knee. The pathway is 10 to 12 feet long and is the essential means of access to the block. The tenancy under which Mr Edwards rented the flat was an assured shorthold tenancy to which the implied repairing obligations in section 11 of the Landlord and Tenant Act 1985 applied. The issue on this appeal is whether Mr Kumarasamy is liable for Mr Edwards’ injuries.
“Mr Kumarasamy is not the owner of the block of flats. He has a long lease of flat 10 which is on the second floor of the block. He has a number of rights granted to him under that lease. It is common ground that Mr Edwards gave no notice of any defect to Mr Kumarasamy before the accident; and Mr Kumarasamy gave no notice to his own landlord.”
Edwards was initially successful before District Judge Gilman, who awarded him £3,750 in damages. However, on appeal, Judge May QC found that Kumarasamy was not liable under the extended covenant implied into the tenancy by section 11 (1A) of the Landlord and Tenant Act 1985.
Reinstating the award for damages, Lewison LJ found that the paved area is “part of the structure or exterior of part of the building in which Mr Kumarasamy has an estate or interest” under the section.
He said that the paved area is short and also part of the essential means of access to the front hall, so could properly be described as the exterior of the front hall.
And, surveying the case law, he concluded that Kumarasamy’s liability was not conditional on notice having been given.
Edwards successfully argued that liability arose as soon as the disrepair existed and, referring to the common law, Lewison LJ said: “The general rule is that a covenant to keep premises in repair obliges the covenantor to keep them in repair at all times, so that there is a breach of the obligation immediately a defect occurs.”
Edwards v Kumarasamy Court of Appeal (Chancellor, Lewison and Christopher Clarke LJJ) 28 January 2015
Anthony O’Toole (instructed by Oliver & Co) for the appellant
Joshua Swirsky (instructed by MacLeod James & Goonting) for the respondent
