Widow’s fall in her back yard–Landlord under no liability–Semble, as a matter of law a yard which is not a means of access to the house is not part of the building’s ‘exterior’ within section 32 (1), Housing Act 1961
This was an
appeal by Mrs Enid Violet Hopwood, of 57 Newman Grove, Rugeley, Staffordshire,
against a judgment of Deputy Judge Lewis at Stafford County Court in February
1974 dismissing her action against the respondents, Rugeley Urban District
Council (now Cannock Chase District Council), for damages for personal injuries
suffered in a fall in her back yard.
Mr M Potter
(instructed by Allan Jay & Co) appeared for the appellant, and Mr F Chapman
(instructed by Tinsdill, Hollinshead & Moody, of Stoke-on-Trent)
represented the respondents.
Giving
judgment, CAIRNS LJ said that the plaintiff was the widow of the tenant of one
of the defendants’ houses, and sued for personal injuries which she suffered in
a fall in the back yard of the house. The house was a terraced house some 16
feet in width. At the back of it was a little yard consisting first of a
concrete area adjoining the house for the full width of the house and extending
perhaps five feet from the back of the house; then of a row of nine paving
slabs, again across the full width of the house; and then next to them, on the
other side, of another concrete area, a rather narrower one, perhaps between
two and three feet wide. Still further away from the house was a garden. At the
time of the accident the plaintiff had come from the back door of the house and
walked diagonally across the first concrete area. She intended to go and have a
chat with her neighbour. But when she came to one edge of the paving slabs,
either the front edge or the back, she tripped and fell. It was common ground
that there was a difference in height of an inch and a half between the
concrete and the paying slab, the paving slab being lower, and the judge found
that the defendants, by their servants, well knew of this condition.
Nevertheless the judge found that there was no obligation on the defendants to
keep this part of the premises in repair. The plaintiff founded herself on
section 32 (1) of the Housing Act 1961: ‘In any lease of a dwelling-house,
being a lease to which this section applies, there shall be implied a covenant
by the lessor (a) to keep in repair the structure and exterior of the
dwelling-house (including drains, gutters and external pipes). . .’ Section 32 (5) provided that ‘lease of a
dwelling-house’ meant ‘a lease whereby a building or part of a building is let
wholly or mainly as a private dwelling,’ and that ‘the dwelling-house’ meant
‘that building or part of a building.’
It was conceded that if an obligation to repair could be established,
the plaintiff was entitled to succeed by reason of the provisions of section 4
(1) of the Occupiers’ Liability Act 1957, but the judge found against her on
the basis of what appeared to be the only reported case decided under section
32 of the Act of 1961, Brown v Liverpool Corporation [1969] 3 All
ER 1345.
That was a
case in which a house had a path running to steps which went up to the road,
the house being at a lower level than the road, and the plaintiff met with an
accident on those steps. The question for consideration, just as in the present
case, was whether the steps formed part of the ‘structure’ or ‘exterior’ of the
building. The Court of Appeal held that on the particular facts before the
court the county court judge was entitled to reach his conclusion that the
steps did form part of the building. One matter on which all three members of
the court founded their judgments was that the path and steps in question
formed an essential part of the means of access to the house, in that they were
the only way in. In the present case, this was not so: the ordinary means of
access to the house was from the front of the house, and indeed he (his
Lordship) thought it very doubtful whether the yard could be regarded as a
means of access to the house at all. Sachs LJ in Brown’s case went no
further than to say that there were materials upon which it was open to the
county court judge to reach the conclusion that he did. On that basis, in the
present case there were facts such as entitled the judge to reach his
conclusion. He (Cairns LJ) would be prepared to go still further and to say
that treating the question as Danckwerts and Salmon LJJ did, as one of law and
of construction of the section, the statutory provision could not be extended
beyond what was held in Brown’s case and made to include a yard of this
kind. For these reasons, he would dismiss the appeal.
STEPHENSON LJ
delivered a short concurring judgment, and BRIGHTMAN J agreed. The appeal was
accordingly dismissed.
