England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
Queens Bench Division
Transferred from the Central London County Court
HH Judge Anthony Thornton QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		9 July 2012

HH Judge Anthony Thornton QC:

Introduction

1. This personal injury claim arises out of an injury that Mr Patrick Hannon ("Mr Hannon") suffered when he fell whilst carrying out maintenance work to the central heating and hot water boiler at a house owned by Hillingdon Homes Limited ("Hillingdon") on 18 February 2008. The claim was started in the Uxbridge County Court on 21 July 2010 and was transferred to the Central London County Court by an order dated 19 October 2010. On 1 June 2011, the district judge ordered that liability would be tried first. The action was transferred to the Royal Courts of Justice for trial in the Queen's Bench Division of the High Court.
2. Mr Hannon was 46 on the day of his fall. For some years before 2005 he had worked as an electronics technician but, following his redundancy in that line of work, he became a heating engineer. He had been working for the T Brown Group Ltd ("TBG") for about two years before his accident. TBG are plumbing and heating engineers and much of their work involved repairing heating in local authority housing. TBG had a long-term maintenance contract with Hillingdon which is wholly-owned by the London Borough of Hillingdon ("LBH") and is the corporate vehicle through which that local authority owned and managed its housing stock. TBG's maintenance contract involved it in maintaining and repairing the central heating systems of many of LBH's properties and it carried out that work at properties it was directed to by Hillingdon.
3. Mr Hannon was under contract to TBG and who instructed him where to work. He was paid on a daily basis when he was working and he always worked on his own. On 18 February 2008, he was sent to a house at 50 Hoppner Drive, Hayes, Middlesex ("the property") on the instructions of TBG to deal with a long-standing problem with the tenant's boiler which had not been working for some time. A week earlier, on 11 February 2008, Mr Nigel Knowles, a plumber and gas fitter employed directly by TBG, attended at the property and identified the need for the system to be power flushed. He reported this to the maintenance department of the LBH who notified TBG that this work should be carried out by that company under its long-term maintenance contract as a matter of urgency.
4. TBG put this work into their current work schedule and instructed Mr Hannon to attend the property for that purpose, working as usual on his own. Mr Hannon arrived at the property on 18 February 2008. The property is a two-storey property. The boiler was located on the ground floor and the hot water cylinder on the upper floor and the two floors were connected by a flight of stairs which ran from a landing on the upper floor to the open plan lower floor. The staircase formed part of the lower floor and was constructed into the side wall of the open plan ground floor room. As originally constructed, the free side of the staircase had been constructed with a bannisters consisting of a newel post and spindles located in each stair tread and joined at their head by the bannisters rail. One obvious function of this bannisters arrangement was to act as a safety device to protect anyone going up or down stairs from falling, sliding or slipping off the edge of the staircase into the ground floor living area and to provide a support to help arrest someone who would otherwise fall down the staircase. Unfortunately for Mr Hannon, the bannisters on the open side of the staircase had been removed in their entirety some twenty years earlier leaving an open staircase on that side. A bannisters, without spindles or other supports, had been fixed into the wall on the closed side of the staircase. The removal of the bannisters on the open side had, no doubt, been done for aesthetic reasons to enhance the open aspect of the ground floor.
5. The power flushing work that Mr Hannon had been sent to undertake involved him moving on occasion from the boiler downstairs to the cylinder upstairs and vice versa. He had been working upstairs for some time with the boiler working downstairs. Whilst working, he heard a loud noise downstairs which sounded like a possible problem with the boiler. He understandably moved as rapidly as possible down the stairs and, whilst descending, his foot slipped on approximately the third stair up from the ground towards and over the unprotected edge of the step it was on. He was, as instructed, wearing his working boots. He instinctively reached for the handrail to check himself and, before he could take avoiding action, he toppled over sideways into the open plan area beside the staircase.
6. Mr Hannon fell heavily and awkwardly and seriously injured his left ankle. Had the bannisters been in place, Mr Hannon would have checked himself without difficulty and would not have fallen or injured himself. He brings this claim against Hillingdon as the owner of the property and as the landlord with repairing obligations for the structure of the property. The claim is brought in negligence and under the Defective Property Act 1972 ("DPA"). Hillingdon denies liability on the grounds that Mr Hannon should not have embarked on the power flush at that property given the absence of bannisters and the danger to him that that absence gave rise to. He was, on that basis, the author of his own misfortune and Hillingdon did not cause this accident. Hillingdon also contend that if Mr Hannon is able to show that it is in principle liable to him, he is guilty of a high degree of contributory negligence in undertaking the work and in the manner in which he came down the stairs and attempted to arrest his slide. Hillingdon's third, and principal, defence to the claim is that it was not negligent and it has a defence to the claim under the Defective Property Act 1972 ("DPA"). These two defences are, to some extent, dependent on a possible construction of the DPA to the effect that Mr Hannon has to show that Hillingdon was aware, or should have been aware, of the fact that the staircase had had its bannisters removed and had then failed to reinstate them.
7. There are, therefore, three issues to be resolved. These are whether the accident was caused by the absence of a bannisters or by Mr Hannon's error in undertaking work at the property in its then condition, whether any liability that can be proved should be discounted as a result of Mr Hannon's contributory negligence and whether Hillingdon is liable to Mr Hannon under the DPA.

Issue 1 – The cause of Mr Hannon's injury

(1) Evidence.

8. Evidence about Mr Hannon's injury was given in a witness statement and in oral evidence by Mr Hannon and by Mr Mark Scrutton who was Mr Hannon's manager at the time of his accident. Evidently, Mr Hannon was given some training when he started with TBG which was concerned with how he should conduct himself at work and how to behave in people's houses when undertaking boiler maintenance. Mr Hannon particularly remembered that it was stressed that all TBG personnel had to wear their work boots with steel toecaps whenever and wherever they were working and that it was a very serious infringement of their contract with TBG to take their boots off whilst in a customer's house. He was also trained to undertake a dynamic risk assessment of every site before starting to work. The object of this was to identify all reasonably foreseeable risks that a particular job might encounter and to work round them. There was nothing in the training about the need to be aware of staircases with no bannisters on one side.
9. Mr Scrutton described Mr Hannon as an exceptionally hard worker who was both reliable and competent. Mr Hannon remembers being aware of the absence of bannisters whilst working in the property but he did not consider this dangerous and the thought never occurred to him that he should report the absence of bannisters before starting work on the central heating system. Mr Scrutton and Mr Nigel Knowles, a plumber and gas fitter employed by the LBH and called as a witness by Hillingdon both agreed with Mr Hannon that it was inconceivable that he could or should have declined to work at the property until bannisters was installed. It was noticeable, however, that Mr Harris, the LBH's head of repairs who also gave evidence, stated that whereas before Mr Hannon's accident, the LBH would not have stopped their operatives from working at a council property if the staircase lacked bannisters, following Mr Hannon's accident, LBH operatives were informed that in the rare case where they were to work at a property whose staircase was missing bannisters, they should decline to work there and notify LBH who would arrange for the missing bannisters to be filled in before work was undertaken in the property. Since that would be regarded as an emergency, the necessary work would be arranged and carried out within 48 working hours of LBH being notified of the problem.
10. Mr Hannon remembered being conscious of the absence of the bannisters on his left hand side as he ascended the staircase when he was getting ready to start the power flush of the system. He had started the boiler downstairs and then spent a considerable time upstairs working at and around the hot water cylinder. He thought he had been upstairs for several hours. He said that his training and his common sense as a heating engineer ensured that if he sensed there was something amiss with the gas boiler, particularly something that occurred whilst it was being fired up and tested, the boiler should be attended to as a matter of urgency given the obvious dangers to people and property. He suddenly heard what sounded like a bang emanating from the boiler and his natural and instinctive reaction was to stop what he was doing and proceed as rapidly as possible downstairs to the boiler to investigate and, if necessary, to take avoiding action. One reason for his reaction was that the controls were located next to the boiler. He had gone up and down the stairs several times earlier in the day and on each occasion he moved quite safely and at a safe speed.
11. On this occasion, Mr Hannon recalled was that he, as he put it, "rushed" downstairs. He did not use the bannister railing on his left hand side and he had only a blurred memory of his movements from hearing the bang until his fall. His recollection was that his left foot slipped. He was about three treads up from the bottom and he must have slipped to his right or the force of his downward movement must have carried him sideways to his right because he ended up beside the stairs on his back some way from the staircase. Mr Hannon is certain that he had not fallen down the remaining stairs and that he fell by slipping over the side of the staircase into the open adjacent area. This recollection is confirmed by his ending up well into that open area whereas, had he fallen down the stairs, he would have ended up at or close to the bottom of the staircase. Mr Hannon must have fallen awkwardly and in a way that had put his entire weight onto his left ankle. This swelled up and was very painful. Ultimately, severe spraining of the peroneus brevis tendon was diagnosed which has only partially healed and has left Mr Hannon with long-term mobility difficulty and acute residual pain.

(2) Discussion.

12. On behalf of the defendant, and with little evident enthusiasm, Mr Haque submitted that it should have been obvious to Mr Hannon, at the beginning of the day of his accident when he arrived to undertake the power flushing operations, that it was unsafe for him to work with the staircase in its then condition with no open side bannisters. It was also suggested on behalf of Hillingdon that Mr Hannon should have undertaken a risk assessment of the staircase on arrival at the property and concluded from that assessment that he ran an undue risk of harm if he used them before a barrier had been erected on their open side. He should have informed his employer who could have informed the LBH and declined to work there until a bannister railing or similar feature had been installed. Indeed, the evidence showed that had that occurred, a new bannister railing would have been installed within 48 working hours of LBH's maintenance department being informed of the problem.
13. Mr Nugent, on behalf of Mr Hannon, pointed to the totally unrealistic nature of this submission. Indeed, the rebuttal of this submission was well put by Mr Hannon himself in his witness statement. He stated:

"I know that it has been suggested that I should have refused to do the job as soon as I saw that there was no bannisters rail. This is just nonsense, presumably suggested by someone who has no experience of working in the real world. I had been expected to work in much worse conditions than this before. The pressure was to get the job done. I could hardly walk out and refuse to come back until someone had built a new staircase – what was the tenant to do in the meantime – light a fire?"

14. The evidence showed, and I accept, that the bannisters in question must have been removed by the existing tenant, Ms Debbie Morrison, soon after she had taken on the tenancy and had moved into the property in 1991. She moved out of the property on 25 November 2010 and LBH's records show that the LBH then undertook extensive internal refurbishment work that included the installation of new bannisters on the open side of the staircase and that it had charged Ms Morrison for the entire cost of installing that new set of bannisters.
15. During the almost twenty years that Ms Morrison had lived in the house, there had been a large number of visits to her property by workmen and engineers. The records disclosed by the LBH showed that there had been no fewer than 46 such visits between 15 August 2000 and 11 February 2008, the last being the LBH's engineer's inspection visit. Many, but not all, of these visits were by employees of heating contractors and other self-employed engineers directly employed by heating contractors under direct contract with the LBH. However, some of these visits were made by direct employees of the LBH. None of these visits had led to a report being made to the LBH that the bannisters were missing and none of the many who had been involved in these visits had refused to work there even though every one of the visitors would have been required to undertake a risk assessment of the potential hazards that would be encountered whilst carrying out whatever tasks they had visited to undertake.
16. It is clear from that history that whatever risks and dangers were created by the absence of bannisters, these were not such that a reasonable heating engineer visiting the property would have, or should have, declined to undertake maintenance work, however essential, until the bannisters had been reinstated. On behalf of Mr Hannon, Mr Nugent also pointed to the unchallenged evidence of Mr Hannon and Mr Scrutton that heating engineers working for LBH and employed by TBG and other outside contractors had regularly and frequently attended at the property and none of the many engineers or workmen had ever suggested that it was too dangerous for them to work at the property with the staircase in its condition of being without bannisters on its open side.

(3) Conclusion – Issue 1

17. It follows from these considerations that it was not unsafe for Mr Hannon to embark upon the flushing operation that was needed to enable the central heating to be reinstated in the property. A lawful visitor to a domestic property is entitled to use that property unless it has become so structurally unsafe that it is a dangerous structure into which no-one including the owner may lawfully venture. Thus, Mr Hannon succeeds on this issue. Mr Hannon's injury was not caused by his unreasonable use of the stairs, it was caused by the absence of bannisters on the crucial open side of the staircase.

Issue 2 – Contributory Negligence

(1) Discussion

18. It was contended that Mr Hannon had failed to show reasonable skill and care or to exercise reasonable caution in the way that he rushed down the stairs so that he slipped or slid. That behaviour, at the very least, it was contended, had contributed to his accident and should be reflected in an appropriate discount in his recoverable damages.
19. This submission overlooks the fact that the reason why bannisters are required is to protect those using the staircase from unnecessary or preventable damage in the event of that person slipping on the staircase when using the staircase in a reasonable manner. There are occasions, and Mr Hannon's use of the staircase on this occasion was one such occasion, when it is reasonable for the user to move with speed down the staircase. Mr Hannon was undertaking potentially hazardous maintenance work on the boiler which was alight, had possibly been subject to an explosion and was in need of urgent attention. He was on the first floor and needed to get to the boiler on the ground floor as quickly as reasonably possible. There is no suggestion that he attempted to descend in an unduly risky or foolhardy manner and the slip he experienced was one that could well have happened even if he had not been descending the stairs in haste. Mr Hannon was, therefore, not guilty of any unreasonable lack of care for his own safety, his problem was that there was an absence of a structural feature whose purpose was to provide safety and protection from the very kind of accident that befell him in slipping on the staircase.

(2) Conclusion – Issue 2

20. Mr Hannon was not guilty of any contributory negligence and any damages he is otherwise entitled to are not to be discounted on that ground.

Issue 3 – Liability of Hillingdon

1. Issues

21. Hillingdon's potential liability under the DPA. Hillingdon is the management company through which the LBH's housing stock is managed. It is wholly owned by the LBH who remains the freehold owner of the housing stock and the landlord of each LBH tenancy entered into by the tenants occupying that housing stock. The claim against Hillingdon is based on its having a liability to Mr Hannon as the landlord of the property. The potential difficulty of a claim based on the defendant being the landlord of the property when it is in fact managing the property on behalf of that landlord has been obviated by this pleaded concession made by Hillingdon in its defence in these terms:

"[Hillingdon] admits that it was, for the purpose of this action, the owner of property known as 50 Hoppner Drive, Hayes, Middlesex and that the same property were occupied by a tenant, Ms Deborah Morrison, at the material time in 2008."

The defence also pleads:

"[Hillingdon]'s predecessor in title, the LBH, entered into a tenancy agreement dated 8 November 1990, amended in December 2007, with Ms Deborah Morrison whereby LBH demised the property to Ms Morrison."

22. These concessions have the effect that Hillingdon has accepted liability for any liability that the landlord of the property had under the DPA to Mr Hannon and for any liability that the LBH might have as landlord arising out of the tenancy agreement or agreements that it had with the tenant Ms Morrison dated 8 November 1990 and December 2007.
23. The DPA. Mr Hannon brings his claim as a breach of statutory duty, namely breach by Hillingdon of its duty owed to him under the DPA. The relevant provisions of that Act read as follows:

"4. Landlord's duty of care in virtue of obligation or right to repair property demised.

(1) Where property are let under a tenancy which puts on the landlord an obligation to the tenant for the maintenance or repair of the property, the landlord owes to all persons who might reasonably be expected to be affected by defects in the property a duty to take all 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 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 property 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 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 property and for the purposes of the foregoing provision "the material time" means-

(a) …

(b) 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 property in contemplation of the letting.

(4) Where property are let under a tenancy which expressly or impliedly gives the landlord the right to enter the property to carry out any description of maintenance or repair of the property, than 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 or repair of the property; 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 property arising from, or continuing because of, a failure to carry out an obligation expressly imposed on the tenant by the tenancy."

24. These somewhat tortuous provisions give rise to the following sub-issues:

(1) Issue 1:	Are the bannisters part of the structure?
(2) Issue 2:	Was the failure to replace the bannisters a "relevant defect"?
(3) Issue 3:	Is Hillingdon liable to Mr Hannon given that the tenant removed the bannisters?
(4) Issue 4:	Did Hillingdon have notice of the defect?

2. Basis of claim

25. Both parties accepted that the terms of the tenancy agreement included these provisions:

"Council's obligation: General repairs

5.1 [Hillingdon] will keep in repair and proper working order:

the structure and exterior of the property …

We will carry out these repairs within a reasonable period of time after notification of the repair issue."

"Defects, faults and disrepair

5.10 You must report immediately to us or our agents any defect in the property which is likely to affect public health or the stability of the structure. Other faults or disrepair must be reported as soon as possible."

"Duty to grant Access

5.12 Access will normally be required for (but not limited to) the following purposes:

inspection of the state of repair and condition of the property or an adjoining property

to carry out repairs or improvements …

to carry out emergency works.

If you do not let us in we may take legal action against you to make you give us access or to allow us to make a forced entry into the property."

"Maintenance of the council's fittings and fixtures

5.15 It is your responsibility to keep the inside of your property and its fixtures and fittings in a good state. If you fail to take reasonable care of the property and its condition deteriorates then we can:

ask you to carry out the repair or replacement at your own expense and to our satisfaction; or

if you fail to carry out work or to make good damage for which you are responsible, we may, after giving reasonable notice, enter the property to carry out necessary works and charge you a reasonable amount

apply to the courts for a possession order or an injunction requiring you to carry out the work yourself."

3. DPA Sub-issues

(1) Sub-issue 3.1: Are the bannisters part of the structure?

26. This issue arises because it is first necessary to determine what Hillingdon's repairing obligations were under the terms of the lease governing the property since Hillingdon can only liable to Mr Hannon for Mr Hannon's injuries resulting from his fall if that fall had been caused by a defect in the state of the property which had arisen or had been continued because of Hillingdon's omission to comply with its obligation to repair that defect. This gives rise to the initial question as to whether, if the absence of bannisters on the open side of the staircase caused Mr Hannon's injuries, Hillingdon was under an obligation created by the lease to repair the bannisters by replacing the removed bannisters. The obligation could arise from an express or implied obligation or by virtue of a statutory obligation to repair that had been imposed into the lease. In this case, the starting point is the express repairing obligation imposed into the lease by clause 5.1 that Hillingdon would: "keep in repair and proper working order the structure and exterior of the property". Thus, Mr Hannon must show that the bannisters were part of the structure of the property and that their absence should have been rectified by Hillingdon because that absence amounted to a failure to "keep the structure in repair and proper working order".
27. Mr Haque contended that the bannisters could not be part of the structure of the property since they were not load-bearing and their absence had not in any way interfered with the use and enjoyment of the property since their removal nearly twenty years previously. Mr Nugent contended that the bannisters were an integral part of the staircase and that the relevant test was whether staircase as a whole was part of the structure. Moreover, it was irrelevant to a consideration as to whether the staircase was part of the structure that they had been used for nearly twenty years without the bannisters.
28. The question of what meaning is to be given to the word "structure" arises here in the context of the repairing covenant in the lease of this property. Many leases contain a landlord's repairing obligation that embraces the structure of the building, property, house or flat demised. The authorities indicate that the ambit of "structural repairs" extends beyond load-bearing features of the property but does not usually extend to decorations or other trivial features. Despite its being a judgment of the Scottish Sheriff's court, the helpful words of Sheriff Ireland QC in Hastie v City of Edinburgh District Council^[1] are often cited in this context. In that case, the Sheriff was concerned with whether the landlord of a tenanted house was required to repair windows that had been broken by vandals were the repairing obligation extended to the structure and exterior of the house. The Sheriff said:

"The problem in the present case … has to do with the meaning not of "a structure" but of "the structure … of the house" … . Structure in that context means not some physical thing which is built or constructed, but some part or aspect of a house. …

… I have to decide whether a window is part of the structure of the house as a matter of the ordinary meaning of the words used, and it is not likely that I shall get very much assistance from decided cases.

The structure of a house is that part of it which gives it stability, shape and identity as a house. The essentials seem to be to be foundations, walls and roof. If these are present, then there is a house and any person shown it would describe it as a house, whatever shortcomings it might have as a house. In relation to a particular house, there may be other elements which form part of the structure. For example, in a two-storey house, the staircase and the upper floor may be part of the structure, since they give stability, shape and identity to that house (i.e. a two-storey house), and without them the house is not recognisable as a two-storey house. There is no reason why the elements comprising the structure of a house should be the same in every house. … On the other hand, the phrase "the structure of the house" (on the assumption that "structure" and "house" are not identical terms) implies that there are parts of the house which are not parts of the structure of the house. Windows seem to me to fall into this category. They are parts of the house, since they are annexed to the house in such a way as to become part of the heritage. Nevertheless, they are not essential to give stability, shape and identity to the house as a house. … It would not occur to anyone to say that the structure was being repaired, although the expression would be quite appropriate if the repairs were being done to the foundation, walls and roof, and probably to the staircase in a house with more than one storey."

29. The same theme is to be found in this passage in Woodfall:^[2]

"A house is a complex unity. "Structure" implies concern with the constituent or material parts of that unity. The constituent or material parts involve more than simply the load bearing elements, for example the four walls, the roof and the foundations. The constituent parts are more complex than that. "Structural" is that which appertains to the basic fabric of the house as distinguished from its decorations and fittings. … It is submitted therefore that the expression "structural repairs" is intended to distinguish between those which involve interference with the basis fabric of the house – its walls, roof, foundations, floors and so forth – from those which do not. The structure of a dwelling-house consists of those elements which give it its essential appearance, stability and shape. Although this is a good working definition, it must not be applied slavishly; and the particular context may require a different meaning to be given."^[3]

30. The property that I am concerned with is a two-storey house, the floors of which are interconnected by the staircase. The layout of the house is such that that staircase is an essential feature of the house which is necessary to complete its intended appearance, stability, shape and identity. It is clearly part of the structure covered by the repairing covenant. However, it is also necessary to consider whether the bannisters are part of that part of the structure that comprises the staircase. The bannisters are an integral part of the staircase. This can be seen from a consideration of the relevant part of the current Building Regulations. Regulation K of the Building Regulations 2000 is entitled Protection from falling, collision and impact. The relevant part reads as follows:

1. The Building Regulations

The Requirement K	Limits on application
K1. Stairs, ladders and ramps shall be so designed, constructed and installed as to be safe for people of for people moving between different levels in or about the building.	Requirement K1 applies only to stairs, ladders and ramps which form part of the building.

2. The Approved Document Guidance

Use of Guidance

THE APPROVED DOCUMENTS

This document is one of a series that has been approved and issued by the Secretary of State for the purpose of providing practical guidance with respect to the requirements of … the Building Regulations of England and Wales.

…

Approved Documents are intended to provide guidance for some of the more common building situations. However, there may well be alternative ways of achieving compliance with the requirements.

LIMITATION ON REQUIREMENTS

… The requirements do not require anything to be done except for the purpose of securing reasonable standards of health and safety for persons in and about buildings (and any others who may be affected by buildings or matters connected with buildings).

MATERIALS AND WORKMANSHIP

Any building work which is subject to the requirements imposed by Schedule 1 to the Building Regulations should, in accordance with Regulation 7, be carried out with proper materials and in a workmanlike manner.

Technical Specifications

Building Regulations are made for specific purposes: health and safety … Standards and technical approvals are relevant guidance to the extent that they relate to these considerations. …

3. Guidance

K Protection from falling, collision and impact

K1 Stairs, ladders and ramps

Handrails for stairs

1.27 Stairs should have a handrail on at least one side if they are less than 1m wide. They should have a handrail on both sides if they are wider. …

In all buildings, handrail height should be between 900mm and 1000mm measured to the top of the handrail from the pitch line or floor.

Handrails can form the top of a guarding if the heights can be matched.

31. It can be seen from this extract that the handrail on each side of this particular staircase - which is more than 1m wide, is an integral part of the staircase and is regarded as being an essential part of that element of the building. This conclusion is, in any event, a matter of common sense. It would not occur to anyone to consider the handrails as a separate element of the house even though the then tenant had removed one of them on what appear to have been aesthetic grounds. An ugly, or unpleasing aspect of the structure is, nonetheless, part of that structure and it makes no sense to seek to differentiate the stairs as being part of the structure of the house form its handrails as being part of its non-structural elements.
32. It follow that the bannisters fall within the scope of the repairing covenant of this lease.

(2) Sub-issue 3.2: Was the failure to replace the bannisters a "relevant defect"?

33. The evidence shows that the bannisters in question was removed by the tenant after she had first become a tenant. This removal occurred after the "material time" which is defined in the DPA as being, on the facts of this case, after the time when the tenancy commenced. Given its integral function, it is self-evident that the absence of the bannisters was a defect in the state of the property which was continuing because of the failure or omission of the party responsible for the repairs of the structure to replace it or to insist on its replacement by the tenant.
34. It follows that there was a relevant defect in this house which caused the injury that Mr Hannon is complaining about.

(3) Sub-issue 3.3: Is Hillingdon liable to Mr Hannon given that the tenant removed the bannisters?

35. Mr Haque contended that the defect in this case could not be a relevant defect because the bannisters had been removed by the tenant. It followed that Hillingdon had no relevant obligation to repair or replace those bannisters since its repairing obligation, for the purposes of the DPA, had to be one which: "puts on the landlord an obligation to the tenant for the repair of the property". Mr Haque's submission was that those words showed that the landlord's obligation was owed "to the tenant" and therefore was not an obligation that extended to repairs necessitated by the tenant's breach of covenant in creating the lack of repair in the first place.
36. However, as Mr Nugent contended, the repairing covenant is unqualified. The wording is wide enough to extend to all types of disrepair. If it had been intended to exclude disrepairs caused by the tenant, the covenant would or should have stated this in terms. Furthermore, in the context of the DPA, the definition of a relevant defect is provided to describe the type of situation giving rise to the landlord's liability to a third party – Mr Hannon – and it is clear that that definition does not embrace a consideration of whose fault it was that the relevant defect came into existence. Mr Nugent also pointed out, correctly in my judgment, that the wording of the covenant did require Hillingdon to repair this defect even though it had been caused by the tenant. Hillingdon was not prejudiced by that requirement. It could require the tenant to undertake the repair or, if the tenant did not, could enter and repair the bannisters itself and then charge the tenant the reasonable cost of undertaking those repairs.
37. It follows that it makes no difference to the existence of liability that the tenant caused the relevant state of disrepair in circumstances in which her act in creating that state was itself a breach by her of the terms of the lease.

(4) Sub-issue 3.4: Did Hillingdon have notice of the defect?

38. Mr Haque contended that it was a precondition of Hillingdon's liability under the DPA that it had been given notice of the defect by the tenant by a notice that complied with the terms of the lease, namely a report that had been given "immediately to us or our agents" since it was a defect in the property "which is likely to affect public health or the stability of the structure". Alternatively, it was within the requirement of "other faults or disrepair" that had to be "reported as soon as possible." He also contended that Hillingdon had never been given notice, at best the employees of independent contractors had become aware of the defect when making any of the maintenance visits to the property. That however did not constitute knowledge acquired by Hillingdon.
39. There are, as Mr Nugent submitted, a number of answers to this submission, each of which fatally undermines it. These were, in summary, as follows:

(1) The notice envisaged by clause 5.10 of the lease included "a report to our agents". An employee, including a self-employed employee, of an independent contractor visiting the property for maintenance and repair purposes that were being undertaken by the landlord, was clearly such an agent for the purposes of receiving a report of a state of disrepair of the structure. There had been innumerable such visits over the years, anyone of which gave rise to a "report" since the absence of bannisters was obvious to all who visited the property.

(2) The notice did not have to be in writing. The tenant, by giving access to her house to a maintenance engineer or similar invitee was giving him notice of the absence of bannisters. It followed that the tenant had, on innumerable occasions given Hillingdon notice of the defect.

(3) In any event, it was clear that a direct employee of Hillingdon had, on occasion, visited the property, the most recent of such visits having occurred a few days before Mr Hannon had himself visited. Each such visit clearly involved notice being given to Hillingdon.

(4) Hillingdon must have undertaken a number of inspections of the interior of the property as their landlord in order to ensure that there were no relevant defects that required it to act in order to comply with its remedial or maintenance obligations under the lease. There was no evidence that such visits had occurred and, if that was so, that absence of inspection visits was itself a breach by Hillingdon of Hillingdon's repairing obligations and gave rise to an obligation to repair such disrepairs as would have been observed had an inspection visit occurred.

40. Finally, and in any event, section 4(4) of the DPA gave rise to a liability where, as in this case, the landlord had an express right to enter the property to carry out repairs and a further express right to visit and inspect the property for the purpose of seeing whether it should exercise that right. That liability arose even if Hillingdon had not in fact exercised its right to repair and to inspect since the DPA liability arose "from the time when by notice or otherwise [it] can put [itself] in a position to exercise" the right to inspect and carry out repairs. Thus, since Hillingdon could have inspected and repaired the bannisters, and could have done so at any time over the period of the tenancy, it was liable for not carrying out those repairs even if it did not have notice of the defect.
41. For all these reasons, Hillingdon had been given sufficient and appropriate notice even if, which was not the case, it was necessary for that notice to have been given in order to found liability under the DPA.

(5) Conclusion – Issue 3

42. It follows that Hillingdon are liable to Mr Hannon for the consequences of his accident that occurred on 18 February 2008 by virtue of the DPA

Overall Conclusion

43. There shall be the following orders:

(5) There shall be judgment for Mr Hannon on liability.

(6) Hillingdon caused Mr Hannon's accident and is liable to him for it by virtue of section 4 of the Defective Property Act 1972.

(7) Mr Hannon's damages are not to be reduced since there was no contributory negligence by him.

HH Judge Anthony Thornton QC

Note 1    1981 S.L.T. (Sh. Ct.) 61    [Back]

Note 2    Woodfall Landlord and Tenant, Volume 1, paragraph 13.060.4, text taken from the current October 2008 release.     [Back]

Note 3    The author cites in support of these propositions the approval by the Court of Appeal in Pearlman v Keepers and Governors of Harrow School [1979] QB 56 of unreported dicta in the 1976 County Court case of Pickering v Phillimore, Irvine v Moran [1991] 1 EGLR 261 and Marlborough Park Services v Rowe [2006] 2 EGLR 27 (CA).    [Back]