Sykes v Harry

A landlord’s statutory duty under Defective Premises Act 1972, s 4, is distinct from the contractual repairing obligation under Landlord and Tenant Act 1985, s 11. A claimant suing under s 4 need not prove that the landlord had actual or constructive notice of the particular defect in the contractual sense. The question is whether, in all the circumstances, the landlord ought to have known of the relevant defect and failed to take reasonable care to ensure that persons reasonably expected to be affected were safe. The tenant is included within that protected class. A landlord’s failure to service, inspect or make appropriate enquiries about a gas appliance may constitute breach where the landlord knew of the importance of servicing, knew it had not occurred and therefore knew there was a real risk of defects.

The claimant, a tenant who suffered carbon monoxide poisoning from a defective gas fire, appealed against the dismissal of his claim against his former landlord. The claim relied on the landlord’s repairing covenant under s 11 of the Landlord and Tenant Act 1985 and the statutory duty imposed by s 4 of the Defective Premises Act 1972. The trial judge accepted that the landlord knew the fire had not been serviced and that servicing would have revealed developing defects, but treated the s 4 duty as co-extensive with the contractual duty and found no liability without knowledge of the actual defect. The central issue was whether s 4 imposed a broader duty of reasonable care.

1. Appeal allowed. The judgment dismissing the claim was set aside. Judgment was entered for the claimant for damages to be assessed on the basis of 20% liability, reflecting 80% contributory negligence.
2. The judge had correctly treated the contractual repairing obligation under s 11 of the Landlord and Tenant Act 1985 as subject to the notice principle in O’Brien v Robinson [1973] AC 912. The obligation arises when the landlord has information which would put a reasonable landlord on enquiry as to whether repair is required.
3. That principle does not define the scope of the statutory duty under s 4 of the Defective Premises Act 1972. Section 4(3) limits relevant defects to matters falling within the landlord’s express or implied repairing obligations, but it does not require the tenant to establish contractual notice of the particular defect.
4. Section 4(1) applies to persons reasonably expected to be affected by defects, including the tenant. Under s 4(2), the relevant question is whether the landlord knew, or ought in all the circumstances to have known, of the defect. The duty is to take such care as is reasonable in all the circumstances to ensure reasonable safety.
5. The landlord’s knowledge of the need for regular servicing, his knowledge that the fire had never been serviced, and his failure over eight years to service, inspect or enquire of the tenants established breach. The 80% reduction for contributory negligence was not plainly wrong and was upheld.
6. The landlord could not reopen causation on appeal because his amended defence had expressly admitted that the claimant was overcome by carbon monoxide emitted from the fire. Costs were ordered against the estate, and permission to appeal to the House of Lords was refused.

• Court of Appeal: Allowed the appeal from the judgment and order of His Honour Judge Altman dated 28 May 1999, setting aside the dismissal and entering judgment for the claimant on the basis of 20% liability.