England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER COUNTY COURT
(MR RECORDER CLAYTON QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		7 February 2007

Lord Justice Laws:

1. This is the defendant's appeal against the decision of Mr Recorder Clayton QC handed down in the Manchester County Court on 7 June 2006 by which he gave judgment in favour of the respondent claimant with damages to be assessed for injury suffered by her in an accident which occurred on 2 July 2001. The appellant is the respondent's landlord. The respondent was injured in circumstances which may be described very shortly. The property in Stockport where she lived has a front door with a ribbed glass panel. On the occasion in question the respondent was going into the property with her two and-a-half year old son. On the Recorder's finding (paragraph 42) there was a dispute about how exactly the accident happened. The little boy had tried to open the door but was not strong enough so the respondent put her left hand to the glass and pushed. The glass broke. Her left arm went through the pane. She was very badly cut. The Recorder described her injuries as "horrific and traumatic". Permission to appeal was granted by the Recorder himself.
2. A number of issues were canvassed before the Recorder at trial. Only one remains for consideration on this appeal. The respondent's counsel had in opening the case abandoned (see judgment paragraph 30) any reliance on a common law duty of care. The judge found that the appellant was not on actual notice of any disrepair to the door or glass panel so there was no viable claim for breach of the implied repairing obligation arising under section 11 of the Landlord and Tenant Act 1985 (see judgment paragraphs 59 and 66). There remained the respondent's claim for damages for breach of the statutory duty arising under section 4 of the Defective Premises Act 1972 ("the Act"). The Recorder found this case to have been made out and as I have said gave judgment for the respondent with damages to be assessed.
3. Before coming to the statute I should notice these features of the case: the glass panel in the door was not safety glass but ordinary annealed glass. Before the accident the glass was not broken nor, as the Recorder put it (paragraph 44), was it per se in disrepair. The property had, as a matter of probability, been constructed in accordance with the applicable building regulations (judgment paragraph 64). However, the use of ordinary annealed glass in doors presents a safety hazard and that has been understood since at least 1963 (paragraphs 62 and 76).
4. In addition by force of clause 3.12 of the tenancy agreement the respondent was obliged to grant entry to the appellant's workers to inspect and carry out repairs and improvements. That is significant in the light of the structure of section 4 of the Act to which I will shortly come. The repairing covenant itself was also important. It is contained in clause 3.1 and provides:

"We must keep your home in good condition. We will repair and maintain:

the structure and exterior of the building – roofs, walls, floors, ceilings, window frames, external doors, drains, gutters, outside pipes.

kitchens and bathroom fixtures – basins, sinks, toilets, baths.

electrical wiring and gas and water pipes.

heating equipment and water heating equipment.

any communal areas around your home – stairs, lifts, landings, lighting, entrance halls, paving, shared gardens, parking areas and rubbish chutes."

5. In order to understand the Recorder's reasoning and the arguments on the appeal I should next set out the material terms of the Act:

"Section 4

(1) Where premises are let under a tenancy which puts on the landlord an obligation to the tenant for the maintenance or repair of the premises, the landlord owes to all persons who might reasonably be expected to be affected by defects in the state of the premises a duty to take such care as is reasonable in all the circumstances to see that they are reasonably safe from personal injury or from damage to their property caused by a relevant defect.

(2) The said duty is owed if the landlord knows (whether as the result of being notified by the tenant or otherwise) or if he ought in all the circumstances to have known of the relevant defect.

(3) In this section 'relevant defect' means a defect in the state of the premises existing at or after the material time and arising from, or continuing because of, an act or omission by the landlord which constitutes or would if he had had notice of the defect, have constituted a failure by him to carry out his obligation to the tenant for the maintenance or repair of the premises…

(4) Where premises are let under a tenancy which expressly or impliedly gives the landlord the right to enter the premises to carry out any description of maintenance or repair of the premises, then, as from the time when he first is, or by notice or otherwise can put himself, in a position to exercise the right and so long as he is or can put himself in that position, he shall be treated for the purposes of subsections (1) to (3) above (but for no other purpose) as if he were under an obligation to the tenant for that description of maintenance of repair of the premises; but the landlord shall not owe the tenant any duty by virtue of this subsection in respect of any defect in the state of the premises arising from, or continuing because of, a failure to carry out an obligation expressly imposed on the tenant by the tenancy."

I have omitted that part of section 4(3) which defines the expression "the material time". Nothing in this case turns on that.

6. It can be seen that the duty under section 4(1) arises if and only if the following conditions are fulfilled:

1. The landlord owes an obligation to the tenant under the tenancy for the maintenance or repair of the premises – section 4(1).

2. The landlord knew or ought to have known of whatever is the "relevant defect" – section 4(2).

However those requirements are qualified by section 4(4): the landlord is treated as under a section 4(1) duty if he can exercise a right enjoyed by him to enter the premises in order to carry out works of maintenance or repair. The duty itself, however, is only to take reasonable care to protect potentially affected persons from injury or damage caused by a "relevant defect". That is defined by section 4(3). I repeat the definition for convenience:

"… a defect in the state of the premises … arising from, or continuing because of, an act or omission by the landlord which constitutes or would if he had had notice of the defect, have constituted a failure by him - that is a failure by him to carry out his obligation for maintenance or repair".

Here it is common ground that the conditions are met. The appellant owed an obligation for maintenance or repair (clause 3.1 of the Tenancy Agreement). Section 4(2) (the second condition) was not fulfilled because the appellant had no notice of the putative defect, but that omission is repaired by the application of section 4(4) which, as I have said, qualifies the conditions. The appellant had a right of entry for the purpose of repair or maintenance by force of clause 3.12. Accordingly, the only question in the appeal is whether the state of the glass panel constituted a "relevant defect". The appellant, by Mr Underwood QC, said that it did not because the glass panel was in no need of repair or maintenance. The respondent, by Mr Hartley, says that it did because it was dangerous. That antithesis articulates in essence the short and important point on which the appeal turns.

7. The Recorder essentially adopted the approach urged by the respondent. He said this at paragraph 74:

"The question of fact is whether the replacement of the door or glass panel was something which ought to have been done 'in the interests of all persons who might be expected to be affected by the defect' or 'to remedy any defects which might expose visitors to the premises (or the tenant herself) to the risk of injury.' In other words, did it pose a reasonably foreseeable risk of injury?"

In arriving at this formulation the Recorder purported to draw on the reasoning of this court in McAuley v Bristol City Council [1992] QB 134. That case concerned a garden step which was in disrepair and was unstable. The plaintiff tenant fell on it and broke her ankle. In her subsequent claim she relied on section 4 of the Act.

8. The court's lengthy reasoning was much taken up with the question whether the landlord had impliedly reserved a right to carry out repairs to remove a risk of injury. In the circumstances the court held that such a right was reserved. Ralph Gibson LJ said this (McAuley v Bristol City Council [1991], [1992] QB 134 para 47):

"I think that, to give business efficacy to the agreement, as Somervell LJ put it in Mint v Good, a right should be implied in the council to carry out repairs for the removal of that risk of injury. A reasonable tenant could not sensibly object to such a right. If the council became aware of a dangerous defect in the steps of a steep garden, as in this case, and asked the tenant for access to repair it, in the interest of all persons who might be expected to be affected by the defect, the court could, in my judgment, properly require the tenant to allow such access on the basis of an implied right in the council to do the work. So limited, I would hold that the implied right to enter to do the necessary repair was proved and the appeal should be dismissed."

Neill LJ said in WLR 984H:

"In my judgment, in order to give business efficacy to this tenancy agreement, the landlord had an implied right to enter the premises to carry out repairs to remedy any defects which might expose visitors to the premises (or the tenant himself) to the risk of injury."

9. Before considering the effect of McAuley and the Recorder's reliance on it I should refer to some other authority. The Recorder referred more than once to Quick v Taff Ely Borough Council [1986] 1 B 809. There this court was concerned with the extent of liability under a repairing covenant implied by section 32(1) of the Housing Act 1961, predecessor to the Landlord and Tenant Act 1985, section 11. Mr Underwood submits that the court's approach casts light on the sense to be attributed to "relevant defect" in section 4 of the Act. Dillon LJ said at page 818D:

"In my judgment, the key factor in the present case is that disrepair is related to the physical condition of whatever has to be repaired, and not to questions of lack of amenity or inefficiency. I find helpful the observation of Atkin LJ in Anstruther-Gough-Calthorpe v McOscar [1924] 1 KB 716, 734 that repair 'connotes the idea of making good damage so as to leave the subject so far as possible as though it had not been damaged.' Where decorative repair is in question one must look for damage to the decorations but where, as here, the obligation is merely to keep the structure and exterior of the house in repair, the covenant will only come into operation where there has been damage to the structure and exterior which requires to be made good."

Lawton LJ said 821G:

"The standard of repair may depend on whether the house is in a South Wales valley or in Grosvenor Square; [I interpolate I am not sure with great respect whether I would wish to be associated with that antithesis] but wherever it is, the landlord need not do anything until there exists a condition which calls for repair. As a matter of the ordinary use of English that which requires repair is in a condition worse than it was at some earlier time. This usage of English is, in my judgment, the explanation for the many decisions on the extent of a landlord's or tenant's obligation under covenants to keep houses in repair. Broadly stated, they come to this: a tenant must take the house as he finds it; neither a landlord nor a tenant is bound to provide the other with a better house than there was to start with; but, because almost all repair work requires some degree of renewal, problems of degree arise whether after the repair there is a house which is different from that which was let."

10. Dillon LJ was a member of the court directly considering section 4 of the Act in McNerny v Lambeth Borough Council [1989] 19 EG 77. The case concerned the effects of condensation in a flat which caused the plaintiff to suffer from colds and other ailments. The claim failed. Although the single pane windows and solid walls were the cause of the condensation, they could not be said to be in disrepair. Ralph Gibson LJ said at 83M:

"But the important point is that that statutory protection for those in occupation of defective premises is geared to the landlord's obligation to repair the premises. It goes no wider than the repair covenant."

11. Mr Underwood QC this morning reminded us that the repair covenant there was the implied covenant arising under the Act of 1985. That seems to me however not to detract from the force of this observation. In general terms it is clear that the reach of the duty arising under section 4 is no longer than the reach of the covenant to repair and/or maintain owed by the landlord in any particular case. Mr Hartley insists in his skeleton argument (paragraph 43) that he does not seek to quarrel with the proposition that the section 4 duty goes no wider than the applicable repairing covenant. He submits that the Recorder's approach does not offend against Ralph Gibson LJ's cautionary words in McCauley 976D:

"There is, I think, no warrant for a wide construction of the words of section 4."

12. Mr Hartley's argument rather draws our attention to the actual terms of the repairing covenant in the agreement in question. Its opening words are: "We must keep your home in good condition". Citing Proudfoot v Hart [1890] 25 QB 42 and Credit Suisse v Beegas [1994] 4 AER 803 Mr Hartley submits that an obligation to keep in good condition encompasses an obligation to put in good condition; and by that route it is a short step to the conclusion that to put in good condition involves, in effect, making safe. It is suggested that the Recorder did no more than acknowledge this shift from keeping to putting in good condition when he stated (paragraph 78):

"It seems to me that the combination of clause 3.12 and the scope of the statutory duty under section 4 in accordance with McAuley is such that on the facts of this particular case, the replacement of the door or glass panel was something which ought to have been done 'in the interests of all persons who might be expected to be affected by the defect' or 'to remedy any defects which might expose visitors to the premises (or the tenant herself) to the risk of injury'."

In short, it is Mr Hartley's case that an obligation at least to maintain, perhaps to repair, and certainly an obligation to keep in good condition encompasses and includes an obligation to make safe at any rate if major structural works are not required.

13. In my judgment the reasoning of the Recorder, and with respect the arguments of counsel for the respondent, are fundamentally flawed. They equate a duty of repair and/or maintenance with a duty to make safe. They propose such an equation moreover in a case where the thing in question -- here the glass panel -- is not in disrepair at all and there has been no failure at least as a matter of ordinary language to maintain it. I do not think there is any warrant for such an equation. I do not think that a covenant to maintain comes any closer to a covenant to make safe than does a covenant to repair.
14. There is, as my Lord, Lord Justice Carnwath pointed out in the course of argument, much learning on this dichotomy between maintain and repair. It is not necessary to go into it in this case. No doubt the two concepts overlap. Neither of them, however, can in my judgment possibly be said to encompass or to include a duty or obligation to make safe. Moreover a duty to keep "in good condition", the words used here, even if it encompasses a duty to put into good condition, again cannot encompass a duty to put in safe condition. A house may offer many hazards: a very steep stairway with no railings; a hidden step; some other hazard inside or outside the house of the kind often found perhaps in particular older properties. I do not think it can be said that the Act requires a landlord on proof only of the conditions I have described for the application of section 4 to make safe any such dangerous feature. The case of McAuley is to be distinguished on the footing that there the garden step was unquestionably in a state of disrepair.
15. The approach I favour in this case, on somewhat wider grounds, is I think supported by the reasoning of Chadwick LJ, with whom Tuckey LJ and Sir Murray Stuart-Smith agreed in Lee v Leeds City Council [2002] 1 WLR 1488. That was a case in which the interiors of two houses suffered from a design fault giving rise to condensation and mould. There, as Mr Hartley was this morning at pains to insist, the works that would have been required to make the defects good would have been very substantial indeed. At 1515D and following Chadwick LJ said this:

"80. But an affirmative answer to the question whether there is to be implied a power to enter in order to carry out remedial works required to remedy defects which pose a danger to health does not lead to the conclusion that failure to carry out such works (if not works of repair) may give rise to liability under section 4(1) of the 1972 Act. As I have said, the first question in this context is whether the works that would be required in order to remedy the inherent defects in design – which are the cause of the excessive condensation and mould – are within the expression 'any description of maintenance or repair of the premises'. If they are not, the fact that the landlord may be entitled to enter the premises in order to carry out those works does not give rise to a deemed obligation to the tenant "for that description of maintenance or repair" under section 4(4); so that the defect is not a 'relevant defect' for the purposes of section 4(3); and there is no duty under section 4(1) to take care to see that persons are reasonably safe from injury caused by that defect.

"81. In my view the first respondent local authorities are correct in their submission that the first question should be answered in the negative. The works required to remedy the design defects are not works of repair – giving to 'repair' the meaning which it should bear in this context. It is not contended that the works are works of maintenance. It is, I think, significant that Parliament, when enacting section 4 of the 1972 Act in substantially the terms proposed in the draft bill annexed to the Law Commission report Civil Liability of Vendors and Lessors for Defective Premises (1970) (Law Com No 40), chose to link the duty of care imposed by section 4(1) to the landlord's failure to carry out an obligation "for the maintenance or repair" of the premises: see section 4(3). That is the framework within which the statutory hypothesis in section 4(4) must operate. Parliament did not, as it might have done, link the duty of care to a failure to remedy defects in any more general sense. The obligation to 'repair' has a well recognised meaning in the law of landlord and tenant; and, as the cases show, it does not arise unless the object in respect of which it is imposed is out of repair. If the defect which has caused the injury in respect of which a claim is made under section 4(1) of the 1972 Act is not a defect arising from of repair, it cannot be a 'relevant defect' for the purposes of that section. As Ralph Gibson LJ put it, in the McAuley case [1992] QB 134, 145:

'There is, I think, no warrant for a wide construction of the words of section 4. They apply to all landlords, and not merely to local authorities, and can operate so as to impose a substantial burden upon a landlord in respect of premises under the immediate control of the tenant and in respect of which the landlord has assumed no contractual obligation.'"

16. The respondent's case and the Recorder's judgment would extend the scope of the duty arising under section 4 to an extent unjustified by the section's language or by any policy considerations to which the court might reasonably have regard. It would transform section 4 from a statutory embodiment of the landlord's repairing covenant intended to protect persons, not only the tenant, against the effects of want of repair or maintenance into something else altogether; in effect, a statutory warranty that the premises are reasonably safe.
17. That seems to me to be the consequence of Mr Hartley's argument, despite his insistence that the duty on his approach would only encompass relatively modest works. Nothing like such a warranty can be got out of the language of section 4. Such a conclusion is against the grain of all the authorities. It would represent a major liability to be borne by landlords, including of course local authorities and housing associations. If it were desired to impose such a liability, it would be for Parliament to effect it.
18. For all these reasons I would allow the appeal.

Lord Justice Carnwath

19. I agree. I would add three points.
20. First, as appears from the passage which my Lord, Lord Justice Laws has read from Lee v Leeds City Council, the facts which we are looking at arose from a Law Commission report in 1970. That was the report of Civil Liabilities of Vendors and Lessors of Defective Premises Law Commission No 40. Had I had any serious doubt about the answer to the case, I would have found it helpful to have been referred to the terms of that report, which I would expect to have made clear the purpose which this provision was designed to serve.
21. Secondly, my Lord has referred to the learning on the question on the meaning of the words "maintenance" and "repair". Again, had I thought it relevant to resolving the dispute in this case, it would have been helpful to have been referred also to the discussion of those terms in the context of the Highways Act: Duty of Highway Authorities. The cases were reviewed in a recent decision of this court: Mitchell v Department of Transport [2006] 1 WLR 3356. Thirdly, Mr Hartley attempted to extract some comfort from the fact that the particular repairing term in this case included an obligation to keep the home in "good condition". In his skeleton he suggested that that embraced the word "putting" in good condition and that in turn that would extend to what would have been involved in replacing the pane in this case.
22. With respect I do not think that that interpretation can assist him in the application of section 4 of the statute, which is clearly directed to maintenance or repair. He referred us to a case called Welsh v Greenwich LBC [2000] 3 EGLR 41. That was in fact referred to by Chadwick LJ in the Lee v Leeds City Council case. In paragraph 61 Chadwick LJ said this:

"In Welsh v Greenwich LBC [2000] 3 EGLR 41 this court held that an express covenant to 'maintain the dwelling in good condition and repair' did impose on the landlord an obligation to remedy the underlying cause of excessive condensation which had resulted in mould. The court found, in that context, that the words, 'good condition' were 'intended to mark a separate concept and to make a significant addition to what is conveyed by the word 'repair': see the judgment of Robert Walker LJ, at p43, and, also, in the judgment of Latham LJ, p 44D."

23. That seems, with respect, to be in conflict with Mr Hartley's submission. What it shows is that the term "good condition" is an additional concept, or certainly was in the context in which Walker LJ was considering it, and I do not see how it can support an argument that the term "good condition", even if it appears in the tenancy agreement, can be imported into the statute.

Lord Justice Moore-Bick

24. I agree that the appeal should be allowed for the reasons given by my Lord, Lord Justice Laws.

Order: Appeal allowed.