Dodd v Raebarn Estates Ltd & Ors

A landlord’s statutory duty under the Defective Premises Act 1972 is confined by the landlord’s obligation to maintain or repair. It does not generally require a landlord to make safe a dangerous feature which is not in disrepair. A defect caused by a tenant’s original construction may therefore fall outside the statutory duty, even if it breaches planning permission or Building Regulations. A landlord’s right to enter and repair is treated as an obligation only for the relevant description of maintenance or repair. Nor does the existence of that right ordinarily impose a general duty to inspect. Where the landlord neither occupied, designed, built nor altered the premises, a common law negligence claim by a visitor will generally fail.

The claimant appealed from Master Leslie’s decision of 20 May 2015, which struck out her claim and granted summary judgment to the first to third defendants. The claim arose from her husband’s fatal fall on a staircase serving residential flats. It alleged that the freehold landlords were liable under the Occupiers’ Liability Act 1957, the Defective Premises Act 1972, and common law negligence.

The appeal concerned the construction of a headlease, whether the landlords retained occupation or control of the staircase, whether the absence of a handrail and other alleged defects were relevant defects within section 4 of the Defective Premises Act 1972, whether the landlords owed a duty to inspect, and whether the claims had a real prospect of success.

1. Appeal dismissed. The Master was entitled to determine the issues summarily. Summary judgment is appropriate where the claimant has no real, rather than merely fanciful, prospect of success.

2. The headlease was to be construed as demising the entrance hall and ground-to-first-floor staircase to the headlessee. The apparent exclusion of parts below first-floor joist level was a clumsy drafting error. Applying the ordinary principles of contractual construction and business common sense, the parties plainly intended to provide access to the residential upper floors. Corrective interpretation was therefore available. The same conclusion followed from the commercially realistic interpretation of an apparently alternative meaning.

3. Because the staircase was demised, the landlords were not occupiers for the purposes of the Occupiers’ Liability Act 1957. The claim under that Act consequently had no real prospect of success.

4. Section 4 of the Defective Premises Act 1972 links the statutory duty to the landlord’s obligation to maintain or repair. Section 4(4) treats a landlord with a right to enter and repair as subject to an obligation only for that description of maintenance or repair. The duty is not a general duty to remedy dangerous conditions or to make premises safe.

5. The absence of a handrail and the alleged non-compliance with planning permission and Building Regulations could be defects in the state of the premises, but they were not relevant defects under section 4(3). The staircase had been newly constructed and was not shown to be out of repair. Potential dangerousness was not the statutory test. The result might have differed if a handrail had been installed and later removed, but there was no evidence of that.

6. The landlords had no general duty to inspect the staircase. Sykes v Harry concerned particular facts which put the landlord on inquiry about a real risk of defects. It did not establish a general duty to inspect construction or monitor a tenant’s compliance with planning permission or Building Regulations.

7. The common law negligence claim also failed. The landlords did not design, build or install the staircase, were not occupiers, had no control over it, and were not responsible for the tenant’s failure to install a handrail. Summary judgment was therefore properly granted on every pleaded basis.

1. High Court (Queen’s Bench Division): appeal from Master Leslie’s order dated 20 May 2015 dismissed. The claim had been struck out and summary judgment granted to the first to third defendants.