Lafferty v Newark & Sherwood District Council

Section 4(4) of the Defective Premises Act 1972 is a deeming provision. It extends the section 4(1) duty to cases where the landlord has a right, rather than an obligation, to enter and carry out specified repairs. It does not create strict liability or an independent route to recovery where section 4(2) is unsatisfied. The deemed obligation has the same nature and content as the section 4(1) obligation and remains subject to sections 4(2) and 4(3). Liability may arise where inspections are negligently performed or where the landlord fails to operate a reasonable inspection system. A wholly latent defect which no careful inspection could reveal does not establish liability.

The appellant tenant appealed against the dismissal of her claim for personal injury damages under section 4 of the Defective Premises Act 1972. She had fallen into a concealed void in the garden of premises let by the respondent local authority. The defect resulted from a fractured soakaway pipe and could not have been discovered by reasonable visual inspection. The lower court held that the defect was relevant and that the landlord had a right to enter, but found that section 4(4) did not remove the requirement for knowledge or constructive knowledge under section 4(2). The appeal concerned whether section 4(4) imposed strict liability or merely deemed the landlord to owe the ordinary section 4(1) duty.

1. Appeal dismissed. The order dismissing the claim was upheld. The respondent’s appeal costs were assessed at £4,000.
2. Section 4(4) of the Defective Premises Act 1972 treats a landlord with a relevant right of entry as if under an obligation to the tenant for the specified description of maintenance or repair. The provision extends the scope of section 4(1); it does not create a separate or strict liability.
3. The deemed obligation is identical in nature and content to the section 4(1) obligation. The landlord must take such care as is reasonable in all the circumstances. The obligation remains subject to sections 4(2) and 4(3).
4. Section 4(2) is not redundant in a section 4(4) case. The court must consider information obtained, or which ought to have been obtained, through inspections. Liability may therefore arise from a negligently performed inspection or from failure to implement a reasonable inspection system.
5. On the facts, the defect lay some distance below the surface of the lawn and no careful inspection could have revealed it. The appellant therefore could not establish the knowledge or constructive knowledge required by section 4(2), and the claim failed.
6. The observations in Alker v Collingwood Housing Association were obiter to the extent that they suggested section 4(4) could operate despite section 4(2). The court declined to accept that interpretation. The reasoning was consistent with the Law Commission’s recommendations and with Hannon v Hillingdon Homes Ltd.

• High Court (Queen’s Bench Division): On appeal from HHJ Godsmark QC’s order of 5 March 2014 dismissing the claim, the appeal was dismissed and the respondent’s judgment upheld.