Rogerson v Bolsover District Council

Section 4 of the Defective Premises Act 1972 requires a fact-sensitive assessment of whether the landlord took reasonable care to keep persons affected by relevant defects reasonably safe. The statute does not impose, without more, a duty of regular inspection. However, where actual knowledge is absent, whether the landlord ought to have known of a defect will usually depend on what reasonable inspection required in the circumstances. A visual inspection may suffice in some cases, but there is no rule that it always does. The nature and severity of the risk, its foreseeability, the property and the burden of inspection are relevant. Where a simple safety test would have revealed a longstanding dangerous defect, failure to carry it out may establish breach.

The appellant, a council tenant, was injured when an inspection cover in the garden of her home gave way. The cover and supporting framework belonged to a water company, but the tenancy obligations included the structure and exterior of the property and inspections had included the garden.

A deputy district judge found that the defect was longstanding, that a simple pressure test would have revealed it, and that the council had not shown that reasonable care had been taken. HHJ Owen QC allowed the council’s appeal, holding that section 4 did not imply a duty to inspect and that a reasonable visual inspection would not have revealed the latent defect. The central issue was whether the council ought, in all the circumstances, to have known of the relevant defect and had taken reasonable care under section 4.

1. Appeal allowed. The order of HHJ Owen QC was set aside and the deputy district judge’s judgment for the appellant, in the sum of £15,082.88 with interest, was restored.
2. Section 4 of the Defective Premises Act 1972 raises a fact-specific question: whether the landlord took such care as was reasonable in all the circumstances to ensure that persons reasonably expected to be affected by relevant defects were reasonably safe. The duty arises where the landlord knew, or ought in all the circumstances to have known, of the defect. The words “ought in all the circumstances to have known” are general and are not confined by contractual notice concepts. [2019] EWCA Civ 226 [22], [35]-[37]
3. The Act does not, without more, require a landlord to establish a system of regular inspection. The relevant enquiry is whether the landlord ought reasonably to have discovered the defect. What inspection was required depended on all the circumstances and on what a competent landlord exercising reasonable care would do. A visual inspection might be sufficient, but there is no rule that it always is or that it is never sufficient. Relevant considerations included the apparent or foreseeable nature of the defect, the severity of the risk, applicable safety regulations and the burden of inspection. [2019] EWCA Civ 226 [25], [37]-[41]
4. The landlord’s contractual obligations and rights were sufficient to engage section 4. Ownership of the cover by Severn Trent Water Limited did not remove the council’s responsibility as between landlord and tenant. If section 4(1) did not apply, the council had an express right of entry to inspect and repair, engaging section 4(4). [2019] EWCA Civ 226 [23]-[24], [50]-[55]
5. On the deputy district judge’s accepted findings, the cover presented a clear and obvious danger, the supporting defect was longstanding, and a simple pressure test involving moderate lateral force would have revealed its instability without removing the cover. The absence of evidence that the test had been performed, coupled with the failure to call the inspectors or provide adequate inspection records, justified the conclusion that the council ought to have known of the defect and had breached its duty of reasonable care. The accident itself did not automatically create an adverse inference, but it shifted the evidential burden to the council to explain the steps taken to comply with section 4. [2019] EWCA Civ 226 [27]-[32], [58]-[63]
6. HHJ Owen had misunderstood the deputy district judge’s reasoning and had no proper basis to interfere with her factual findings or conclusion. The relevant question was not a freestanding duty to prevent defects developing, but whether the council ought in all the circumstances to have known of the existing relevant defect. [2019] EWCA Civ 226 [64]-[70]

• Court of Appeal (Civil Division): The appeal was allowed. The order of HHJ Owen QC dated 19 February 2018 was set aside and the order of DDJ Haskey giving judgment for the appellant was restored. [2019] EWCA Civ 226
• Nottingham County Court: HHJ Owen QC allowed the respondent’s appeal against DDJ Haskey’s judgment for the appellant. The judgment appealed from is not given a neutral citation in the supplied text.
• Nottingham County Court: DDJ Haskey gave judgment for the appellant on 21 September 2017; the restored order is stated as dated 27 September 2017.