The Court of Appeal has reconsidered the application of s.4 of the Defective Premises Act 1972 (the “1972 Act”) in a case where a man later died after having fallen down a staircase without a handrail. David Woolley explains the issues in Dodd v Raebarn Estates (2017)
S.4 of the 1972 Act deals with defects arising during the currency of a lease. Its effect is to impose on the landlord a statutory duty of care in respect of defects arising at leased premises where he either has a duty to repair under the lease, or the premises are let and the tenancy gives him “the right to enter the premises to carry out any description of maintenance or repair of the premises”. The landlord’s duty is to take such care as is reasonable in the circumstances to see that those likely to be affected by the defect are reasonably safe. Liability is not dependent on actual knowledge, but merely the means of knowledge. Thus the landlord can be found liable for general failure to repair or maintain even if not given actual notice of the defect. The duty under s.4 is owed to “to all persons who might reasonably be expected to be affected by defects in the state of the premises”.
On the facts of this case Raeburn were the owners of the freehold and had granted a 125 year lease to the head lessee who themselves leased a number of individual flats in the upper parts of the building. Mrs Dodd brought claims against Raeburn, the head lessee and the under lessee of one of the individual flats. The head lessee had replaced two existing staircases with a single new one when reconfiguring the flats in the upper part of the building. Planning permission which had been granted was based on plans which showed that the new flight of stairs would be equipped with a handrail. When the new staircase was installed (it would appear that) it did not have a handrail and the stairs were steeper and shallower than shown on the plan. Mr Dodd, the husband, fell down the stairs while visiting friends in one of the flats. The lack of a handrail and the steepness of the stairs amounted to a breach of building regulations which had been in force at the time. The appeal by Mrs Dodd was against the summary judgment dismissing the claim against Raeburn, the freeholder, under s.4 of the 1972 Act.
The covenant to repair in the lease rested with the head lessee not Raeburn. The right of entry to repair only arose if there had been a breach of covenant by the head lessee "…to keep the premises…in good and substantial repair order condition and decoration including the remedying of any inherent defect to the premises as and where necessary to keep the premises in such condition…". The issue on which the appeal focussed was whether the lack of a handrail Mr Dodd fell was a "relevant defect" as defined by s.4(3) of the 1972 Act. LJ Lewison set out:
In determining this question the first step is to make the assumption required by section 4(4) that to the extent that the landlord has the right to enter the premises to carry out any description of maintenance or repair, he is to be treated for the purposes of section 4(1) as if he had an obligation to carry out that description of repair or maintenance. The second question is whether the lack of a handrail can be said to be a "a failure by [the landlord] to carry out his [deemed] obligation to the tenant for the maintenance or repair of the premises."
In reaffirming Alker v Collingwood  EWCA Civ 343 LJ Lewison confirmed:
It is clear that the phrase "maintenance or repair" is to be interpreted according to the meaning that it has in the general law of landlord and tenant, and does not extend to defects in a general sense. The obligation to repair does not arise unless the objects in respect of which it is imposed are out of repair… Thus the reach of the duty arising under section 4 is no longer than the reach of the covenant to repair owed (or treated as being owed) by the landlord in any particular case
In Alker the Court of Appeal considered the application of s.4 of the 1972 Act to a case where the claimant had cut her hand when pushing the glass front door of her property. It was alleged that the duty under s.4 of the 1972 Act encompassed an obligation to replace the glass panel with safety glass to remedy a defect which might expose visitors, or the tenant herself, to the risk of injury, particularly where major structural works were not required. The Court of Appeal considered the claimant’s arguments were fundamentally flawed. Laws LJ was of the view that to equate the duty to repair and/or maintain with a duty to make safe was incorrect. He stated that he did “not think a covenant to maintain comes any closer to a covenant to make safe than does a covenant to repair”.
In Dodd, LJ Lewison with whom the rest of the Court of Appeal agreed, whilst expressing profound sympathy for Mrs Dodd, upheld the decisions below. The Court of Appeal held, on its interpretation of the lease, that the removal of the staircase did not amount to a breach of the relevant operative clause of the lease and did not therefore trigger the right to enter under the lease. Once the new staircase had been installed and, on the assumption it was installed without a handrail, "there has been no subsequent damage to or deterioration in the fabric of the staircase such as to give rise to an obligation to repair it".
In considering the position had it been found that a handrail had been fitted but later removed, LJ Lewison expressed doubt about the reasoning in Hannon v Hillingdon Homes Ltd  EWHC 1437. One of the issues in that case was whether the absence of a handrail, newel post and spindles on the open side of a staircase amounted to a "relevant defect" as defined by s.4(3) of the 1972 Act. HHJ Thornton QC considered that given the "integral function" of the bannisters their absence was a defect in the state of the property. LJ Lewison in rejecting HHJ Thornton QC's analysis explained:
"Judge Thornton does not appear to have considered any of the case law on the question whether there was disrepair such as to trigger liability under the 1972 Act. The test that he appears to have applied is one of functionality, which is not the correct test. Part of a building may function inadequately but it does not follow that it is in disrepair. It is by no means "self-evident", to me at least, that a staircase which has been deliberately altered in the way described is out of repair … If there is no disrepair the questions of compliance with building regulations do not arise."
In dismissing the appeal the Court of Appeal has followed the established line of authorities to confirm the duty to repair and/or maintain does not amount to a duty to make safe. The Court of Appeal's judgment includes a careful analysis of the applicable lease and should serve as a reminder to practitioners that concern should be given as to whether the right of entry to repair is in fact triggered. The court has emphatically closed the door to a test of 'functionality' which would otherwise have put a coach and horses through established legal precedent. It is notable that unlike the previous appeals this appeal by Mrs Dodd and her legal team did not seek challenge and revisit Cavalier v Pope  AC 428 in an attempt to extend / redefine common law negligence claims against landlords.
Although not the focus of this article, it is interesting to note that it was the decision on the defendant's summary judgment application that was upheld. As indicated above, part of the claimant's argument involved an alternative hypothesis that there was a handrail that had subsequently been removed. The judge had rejected this hypothesis on the basis there was no suggestion that further relevant evidence of it would be available save for "what might turn up in cross-examination". This was insufficient to satisfy the criterion for defending a summary judgment application as outlined in Three Rivers DC v Bank of England (No 3)  2 AC 1. It is therefore worth keeping in mind the criterion and possibility of making a summary judgment application, even after disclosure and exchange of witness evidence, if the circumstances are appropriate.
For further information, please contact David Woolley, Senior Associate on 0161 604 1638