England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Coventry County Court
Recorder Davies

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/03/2016

Lady Justice Hallett DBE:

Facts

1. The Respondent was the owner of 11 St Mark's Road, Leamington Spa. By a tenancy agreement dated 12 May 2009, he let the premises to a company in which both the Appellant and her business partner Dr Diamond had an interest. The agreement contained the following clause at 8.4.1:

"Sections 11-16 of the Landlord and Tenant Act 1985 (as amended by the Housing Act 1988) apply to this Agreement. These require the Landlord to keep in repair the structure and exterior of the Premises (including the drains, gutters and pipes) and keep in repair and proper working order the installations in the Premises for the supply of water, gas, electricity, sanitation, and for space and water heating. …"

2. By clause 6.3.1 the tenant was obliged to permit the landlord to enter the premises for the purpose of inspection and repair.
3. We have limited information about the history of the property save that we know it is Victorian and has two staircases: the main staircase and a back or service staircase. The back staircase, with which we are concerned, at the time of the tenancy agreement was steep and enclosed by walls on both sides. There was no hand rail or bannister fitted. A remaining post or half post embedded in the wall at the bottom of the stairs and its equivalent with a bannister at the top of the stairs suggest a bannister may have been removed from the lower flight at some stage in the building's history. On 25 May 2009 the Appellant slipped and fell as she walked up the stairs on a visit to her business partner. She sued in negligence and breach of statutory duty.
4. By the time of trial before Mr Recorder Rhodri Davies QC, the issues had narrowed to the Appellant's claim under section 4 of the Defective Premises Act 1972 ("DPA"). It was her case that without a handrail the stairs were in a dangerous condition and had there been a handrail the accident would not have happened. Further, she contended that the staircase was part of the structure of the premises, the bannister/handrail was part of the staircase and therefore was also part of the structure. It was the landlord's responsibility to maintain and repair the structure. When the bannister was removed the staircase became unsafe and the absence of a bannister/handrail was a "relevant defect" which the landlord had a duty to repair under the agreement and under section 4 of the DPA.
5. Both parties invited the court to note that section 4 of the 1972 Act (which replaced section 4 of the Occupier's Liability Act 1957) was introduced to remedy a lacuna in the Common Law by which a landlord had no liability for injuries suffered by a tenant's family or visitors to premises. Section 4 of the DPA provides:

"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."

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.

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; and for the purposes of the foregoing provision "the material time" means—

where the tenancy commenced before this Act, the commencement of this Act; and

in all other cases, the earliest of the following times, that is to say—

(i) the time when the tenancy commences;

(ii) the time when the tenancy agreement is entered into;

(iii) the time when possession is taken of the premises in contemplation of the letting.

(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 subsection (1) to (3) above (but for no other purpose) as if he were under an obligation to the tenant for that description of maintenance or 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.

(5) For the purposes of this section obligations imposed or rights given by any enactment in virtue of a tenancy shall be treated as imposed or given by the tenancy.

6. The Appellant placed heavy reliance on a first instance decision of HHJ Anthony Thornton QC in Hannon v Hillingdon Homes 2012 EWHC 1437 QB. HHJ Judge Thornton found the defendant landlord Hillingdon Homes liable for breach of section 4 by failing to 'repair' a bannister that had been deliberately removed by the existing tenant twenty years prior to the accident. A thorough analysis of the building led him to the conclusion that the staircase in question was part of the structure of the premises and the bannister a necessary part of that structure. He noted that the bannister was part of the demised premises and its removal occurred after the material time when the tenancy commenced. This constituted a continuing defect which the landlord was obliged to remedy (repair). The failure to re-install a handrail was therefore a "relevant defect" within the meaning of section 4 of the DPA.
7. For his part, the Respondent admitted that the District Council served an improvement notice on him to install a handrail in relation to a "Category 1 Hazard", but nevertheless denied that without a handrail the stairs were unsafe. He pointed to the fact there was no handrail when the tenancy commenced and argued that imposing upon him an obligation to install a handrail amounted to imposing on him an obligation to improve or make safe the premises. His only obligation was to repair and maintain. Counsel then acting for the Respondent distinguished Hannon on the basis that in Hannon a handrail was present at the time the tenancy began and had been removed, whereas in this case there had never been a bannister/handrail present during the relevant period. She, in turn, placed heavy reliance on the decision in Alker v Collingwood Housing Association [2007] 1 WLR 2230, CA, in which Laws LJ (with whom the other members of the court agreed) stated in clear terms that a duty to repair and or maintain could not be equated with a duty to make safe. In Alker the front door of the demised premises was (and always had been) fitted with glass that presented a safety hazard. The court held that there was no duty on the landlord under the tenancy agreement or under section 4 to fit safety glass. The glass was not broken and was not per se in a state of disrepair. 'Unsafe' does not mean in disrepair. The "reach of the duty arising under section 4 is no longer than the reach of the covenant to repair and/or maintain" (see paragraph 11).
8. Mr Recorder Davies found as a fact that the accident happened as described by the Appellant and would not have happened had there been a handrail. At paragraph 17, he noted that it was clear from Alker that "there is no general duty on a landlord to make the premises safe for the tenant" and concluded "the duty is to keep the premises, taken as they are at the beginning of the tenancy, in repair and maintained thereafter in so far as that is a matter for the landlord as relating to structure". He added that

"it is clear from the judgment of Lord Justice Lawton (in Quick v Taff Ely BC 1986 QB 809) that a landlord can offer to let a wreck and a tenant can take it. The obligation to maintain and repair relates to the property in the state it is at the beginning of the tenancy. There is not…… an obligation to reinstate features which may have existed at some unknown time prior to the tenancy. Alker cannot ….be distinguished on that basis and to do so would be would be inconsistent with the scheme and purpose of the Act as explained in Alker…..

9. In other words, there was no obligation to fit a handrail, removed before the tenancy began, so as to make the staircase safe. On that basis alone the claim failed. He did not therefore consider the issue of knowledge (if that was in issue) and he did not make a specific finding that there was any structural defect. In his final paragraph 18 however he said this:

"In consequence, I do not have to address the question whether there was in the meaning of the Act a defect here but I will indicate the view I had formed, which was that it was a defect in this staircase that it did not have a rail or a bannister on either side. In my view slipping on stairs is a fact of life which happens from time to time and a staircase which gives no means of saving oneself once a slip has started counts as defective. However that is not enough to bring the claim within section 4 of the Act…."

10. There has been some debate before us as to whether in so finding, the Recorder has implicitly found the defect was a relevant one within the meaning of the Act.
11. In refusing leave the Recorder certified that the claim failed because of the decision in Alker. Although there was a defect, it was not "due to a failure of maintenance or repair by the landlord".

Appeal

12. Mr Davey for the Appellant invited the court to take the questions in turn. First, were the staircase and bannister part of the structure? He acknowledged that the Recorder made no specific finding on this issue but took us to the finding that the absence of a bannister constituted a defect (see paragraph 9 above). He contends there would be no point in such a finding if the Judge had considered that the staircase and the bannister were not part of the structure. Furthermore, the Judge made no criticism of Hannon in which a bannister was considered an integral part of the structure of the building to which the landlord's duty attached.
13. In any event, Mr Davey reminded us that the Respondent had a right to enter and was able to put himself in a position to carry out general repairs before the Appellant took possession of the property and during the tenancy. On his interpretation of section 4(4), where there is a right to enter and inspect and repair, the duty is not limited to the repair of structure and therefore the provisions of section 4 (4) are triggered. In those circumstances, he insisted that it is not necessary to determine if the (missing) bannister was part of the structure.
14. Mr Davey understood from the Recorder's paragraph 17 that he had concluded there was no duty to repair premises in a state of disrepair at the beginning of a tenancy. If so, he maintained the Recorder was wrong to so find. He placed reliance on the wording of section 4 (3) of the DPA which defines a "relevant defect" as "… a defect in the state of the premises existing at or after the material time". "Material time" is defined, inter alia, as "the time when the tenancy commences". Accordingly the DPA envisages the possibility of a landlord being in breach of Section 4 at the date of commencement of the tenancy (or before).
15. He reminded us that the obligation under Section 4(1) is tied in with a landlord's repairing obligations to a tenant under the tenancy agreement. This tenancy agreement expressly incorporates Sections 11-16 of the Landlord and Tenant Act 1985. Section 11 provides that there is an implied covenant to: "to keep in repair the structure and exterior of the dwelling-house"
16. He referred to established law that the obligation to keep a property in repair requires the person responsible to do more than keep a property in the state of repair that it is at the time of the grant or commencement of a tenancy. He derived from Proudfoot v Hart (1890) 25 QBD 42 CA and Saner v Bilton (1878) 7 Ch D 815 this proposition:

"A covenant by a tenant to keep premises in repair requires the tenant to put the premises into repair if they are out of repair when the tenancy commences. Likewise, if a lessor covenants to keep premises in repair, he must put the premises in repair. While covenants must be construed in the light of circumstances surrounding the lease, whether or not premises require to be "repaired" is to be judged by whether they are in a worse physical state than when they were constructed."

17. Finally on this point, he argued that to limit the repairing obligation to the state of repair or disrepair at the date of commencement of a tenancy would frustrate the purpose of both section 11 of the Landlord and Tenant 1985 and the DPA. It would mean that a landlord who lets premises out on a succession of short term tenancies would escape liability for any disrepair existing at the start of each tenancy, irrespective of how long the disrepair had been present and irrespective of how dangerous the state of the property arising from that disrepair.
18. In the present case he asserted that there must have been a bannister at the time the building was constructed; one has only to look at the remaining post. If so, the bannister probably had the function of protecting an open space to the left; it most certainly had the function of protecting the person walking up or down a narrow set of stairs. When the bannister was removed, and the wall fitted, an essential safety feature was removed. No handrail was fitted in its place. From that point on the staircase was in a 'worse' condition and in what he described as a state of disrepair so that the landlord was under a duty to repair. There was no change 'in entity' as there would have been in major conversion works so that the 'clock would start again'. The bannister had simply been removed and not replaced. A landlord cannot comply with his duty to his tenant to keep the premises in repair by simply removing an essential part of the structure.
19. In response, Mr Mitchell for the Respondent did not disagree with the proposition that the landlord's duty to repair extended to the duty to put the premises into repair, if they were in disrepair, at the beginning of the tenancy. The words of the section are clear on this point if 'tortuous' elsewhere. "Relevant defect" is defined as a defect in the state of the premises existing at or after the material time. The material time includes the time when the tenancy commences and the time when the tenancy agreement is made (see section 4 (3) (b) (i)). Rightly, in my view, he conceded that if, and in so far as, the Recorder was persuaded to accept that Alker is authority for the proposition that a landlord's duty under section 4 of the Act is limited to keeping demised premises in their state of repair at the time the tenancy began, even if that is a state of disrepair, he was wrong.
20. Mr Mitchell suggested that the position at Common Law may have led the Recorder into an infelicitous choice of words in paragraph 17 of his judgment. At common law there is no liability on a landlord where he lets premises in a dilapidated state even when he had covenanted to repair them but failed to do so: Cavalier v Pope [1906] AC 428.
21. Nevertheless he maintained that the Recorder reached the right conclusion for essentially the right reasons. First, the Appellant had to establish the "structure" of these premises extended to a handrail for the staircase. He observed that what is structural in one house will not necessarily be structural in another. It is a question of fact in each case. He invited the court not to interfere with a fact sensitive decision made by the trial judge, albeit he did not identify, to my satisfaction, any fact specific conclusion on this issue.
22. Mr Mitchell pointed to the fact that the demised premises included a back staircase with walls on either side. They did not include a back staircase with a bannister. He rejected the suggestion that a bannister or handrail could sensibly be described as part of the structure of these particular demised premises. The situation is entirely different from that in Hannon (if correctly decided). At the beginning of the tenancy in Hannon, there was a bannister present which acted as a guard against a fall into an open space below, but the bannister was removed during the tenancy. In this case, if a bannister had been present and removed, this happened before the tenancy commenced and the bannister had been replaced with a wall. The open area to the side of the staircase remained protected.
23. He profoundly disagreed with Mr Davey on the construction of section 4 (4). It was his contention that section 4 (4) was intrinsically linked to the rest of the section and the landlord's duty in the tenancy agreement. He contended that subsection (4) was intended to impose the section 4 statutory duty on a landlord who had no actual notice of the defect but did have a right to enter and repair. The notice provisions may have been extended but the reach of section 4 as a whole remained the same. He emphasised what was said in Alker that the reach of section 4 is no wider than the landlord's repairing obligation.
24. That brings me to the Respondent's reliance on Alker. Mr Mitchell argued that the judgments in Alker were directly on point and therefore bound the judge. The decision in Alker was based on the fact the premises were not in a state of disrepair per se. The glazed door was not damaged in any way. Placing an obligation on the landlord to re-glaze the window with safety glass would have amounted to placing an obligation on him to improve the premises and or make them safe. This was beyond the reach of his covenant. The fundamental flaw in the trial judge's reasoning in Alker identified by Laws LJ at paragraph 13 was in equating a duty of repair and or maintenance with a duty to make safe. (See also Lee and Leeds City Council [2002] 1 WLR 1488 referred to at paragraph 15 of the judgment of Laws LJ).
25. Just as the glazed door in Alker was not in disrepair, the staircase here was not in disrepair. There was nothing wrong with the walls or stairs themselves. Even if some would consider the staircase unsafe without a handrail, there was no duty to make it safe.

Conclusions

26. The first and ultimately, in my view, the only question we have to answer is whether the Appellant has established that the premises were in disrepair. If she has not, any discussion of whether the staircase and bannister were part of the structure and of the meaning of section 4 (4) is irrelevant. I begin, therefore, with my conclusion on the issue of disrepair.
27. I am conscious of the fact that the Recorder found there was a 'defect' in the staircase but I note that by the time he made that finding at paragraph 18, he believed he had disposed of the claim. In consequence he provided little detail of what he meant by "defect". He introduced the paragraph by reference to a defect within the meaning of the Act, which might suggest he found a defect in need of repair, but he went on to describe how unsafe the staircase was without a handrail. This was not enough to bring the claim within section 4. It seems therefore that his finding that the absence of a bannister/handrail was a defect meant no more than that he found the stairs were unsafe.
28. If that is right and we have no clear finding on the issue of disrepair, I initially questioned whether the members of this court could decide the issue for ourselves. I am now satisfied that we can; the only evidence that is and will become available of the alleged disrepair are the photographs of the staircase. As a result, we are in as good a position as the Recorder to make a finding of fact on this issue.
29. The photographs show a staircase of a kind that one might find in hundreds of old buildings across the country. It looks very much like one of the examples given by Laws LJ in Alker of a hazard that is not in a state of disrepair, namely "a very steep stairway with no railings". Given the narrowness of the tread and the steepness of the flight of steps, particularly where it turns the corner, I have little doubt that, without a handrail, it was a hazard. But, as unsafe as it may have been, there is nothing about it that, to my mind, could possibly justify the description of being in disrepair. The walls and stairs themselves are apparently sound and there is nothing wrong with the floor covering.
30. Furthermore, there never had been a handrail on the staircase at any relevant time. To place the Respondent landlord under an obligation to fit a handrail in these circumstances would amount to placing him under an obligation to improve the premises or make them safe. This would be beyond the reach of his covenant, just as it was in Alker.
31. My finding on the issue of disrepair would be sufficient to dispose of the appeal. I would uphold the Recorder's dismissal of the claim. Accordingly it is not necessary to decide on whether the staircase and (missing) bannister formed part of the structure of the premises or on the construction of section 4 (4). I shall keep my observations upon those two issues short.
32. First, I have my doubts that the Appellant could establish that a bannister was ever part of the structure of the back service staircase and, therefore, of the premises. In any event, by the time of the tenancy agreement, there was no bannister and the structure of the premises did not include one.
33. Second, I accept that, had the Appellant been able to establish disrepair, she may nevertheless have been able to bring her claim within section 4 (4). I emphasise may have been able to do so because I have reached no final conclusion. My post hearing research suggests that determination of this point would require a far closer examination of decisions such as McCauley v Bristol City Council [1992] QB 134 referred to in Alker but not put before us. The analyses of section 4 in Sykes v Harry [2001] EWCA Civ 167 and Alker are helpful but I do not accept they provide a definitive answer to the interpretation of section 4 (4) in the way Mr Mitchell suggested.
34. Accordingly, much as I sympathise with the Appellant, who suffered a nasty injury in her fall, I am satisfied the Recorder reached the right result. I would dismiss the appeal.

Lord Justice Briggs

35. I agree. The insuperable difficulty faced by the Appellant in this case was to demonstrate that this staircase was in disrepair at any relevant time. If it was not, then no duty of care under s.4 of the Defective Premises Act 1972 could have been owed to the Appellant even if, which I accept, the staircase was by modern standards both defective and hazardous by reason of the absence of any bannister or wall-mounted handrail. The tenancy agreement provided that the landlord was to have certain obligations to repair, and a right of entry to inspect and repair the demised premises.
36. Like my Lady, I consider that the photographic evidence about the relevant staircase (which was all the evidence available to the Recorder) shows clearly that by no reasonable use of language could the staircase be said to have been in disrepair. It was simply an old fashioned, steep, narrow staircase without bannisters or hand rails, both at the time of the accident and at the commencement of the tenancy. The fact that at some date in the past it may well have had an open void on its left hand side (where there is now a wall) protected by a bannister, is in my view neither here nor there.
37. I accept of course that an obligation on a landlord (or a tenant) to keep in repair extends to putting into repair anything which is out of repair at the start of the relevant tenancy. But it would be bizarre if in this case the tenant could have complained that this staircase was in need of repair at the start of this tenancy merely because it might at some earlier time have had an open side with a bannister, long since replaced by a wall.

Mr Justice Moylan

38. I agree. In my view, there can be circumstances in which works or alterations to premises result in them being in disrepair. However, the state of the relevant staircase in this case, following whatever works or alterations had in fact taken place, was not such as to cause it to be in disrepair.