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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		27th July 2012

1. This a trial of the issue of liability in a claim for damages for personal injuries arising out of a fall suffered by the Claimant, then 40 years old, on the 5^th October 2008 when she was ascending a flight of three steps leading to the front door of 3 Cannon St, Harwich, Essex ("the property").
2. The property, owned by the Defendant, is a mid-terraced Victorian house on three floors and consists of a basement, ground floor and a first floor. It is one of many similar properties in the terrace, all of which have steps, usually three steps, leading to the front door. Similar houses on the opposite side of the road tend to have more steps due to the different topography. Photographs show the property and neighbouring properties. Some of the photographs of the property were taken about 6 weeks after the fall and some a little later after a wooden handrail had been fitted next to the steps.
3. Access to the front door was via a concrete path leading to the three steps. The steps are about 1 metre wide. The depth of the bottom two steps appears to be about 11.5 inches but the top step leading to the front door is less deep. At the instance of the Defendant, who had acquired the property in 1998, the steps had been painted with red paint to improve their appearance.
4. To the left of the path a small area has been stepped down to basement level. This stepped area is separated from the concrete path by an ornamental brise soleil block concrete wall, typical, I am told, of the fashion of the 1970s. This wall has a continuous height of 950mm above path level along its length and continues alongside the left of the three steps to the front of the house. When it reaches the steps it is not raised so as to run parallel with the rise of the steps but the top level of the wall continues horizontally to the front of the house. Thus the height from the middle step to the top of the wall is 463mm, about 18". To the left of the wall at the steps there is a drop of 2.524m (over 8 feet) to basement level. The wall thus offers very limited protection against a fall from the steps down to basement level.
5. In June 2008 the Claimant was living in Scotland. She was looking for premises to rent and contacted Mr Cundall of Concord Property Management ("Concord") who managed the property for the Defendant. Mr Cundall states the Claimant visited the property in about late August / early September 2009. Terms of a tenancy were agreed and it was further agreed that she would sign and provide a copy of the tenancy agreement on her arrival in Suffolk. She was provided with keys to the property in advance of signing the tenancy, no doubt because the statutory services had agreed to pay the rent. The tenancy agreement was signed by the Claimant on 8th October but backdated to 5th October.
6. On 4^th October the Claimant arrived in Harwich and spent the night at the property. Her fiance, Mr Stuart arrived with a van load of possessions on 5th October and she and Mr Stuart set about carrying their possessions into the house. The 5^th October 2008 was a wet day and it was raining when the Claimant's accident happened.
7. The Claimant's account of the accident has not been in issue. As she and Mr Stuart were jointly carrying a large box up the front steps to the property, the Claimant leading and walking backwards and Mr Stuart taking the other end of the box, her right foot slipped when on the middle step and she fell to her right and over the wall alongside the steps down to basement level. She suffered serious back injuries.
8. On the Claimant's behalf it is alleged that the steps were "unduly slippery" as a result of being painted, being wet and because of the presence of dirt. Of these allegations it is the combination of paint and wet which were originally said to be the real villains. The presence of dirt was added by amendment at the outset of the hearing.
9. In addition it is alleged that the wall at the side of the steps was not sufficiently high and/or was not provided with a guardrail or handrail to prevent someone falling down to basement level. It is said that the presence of the inadequately guarded drop to the basement made it all the more important that the steps should not be slippery. It is not suggested that the Defendant had altered the wall in any way during the period of her ownership of the property.
10. It is alleged that these failures gave rise to breach of Section 2 of the Occupiers Liability Act 1957, breaches of a repairing covenant in the tenancy agreement and Section 4 of the Defective Premises Act 1972, and breach of duty at common law. The Claimant relied on her own evidence and that of Mr Stuart, her mother Mrs Porter, and her son Stephen, the latter of whose witness statement was agreed. She also relied on hearsay evidence of conversations between her then next door neighbours, Ms Kellie (or Kelly) Tyler and Mr Mark Tyler and a solicitor, Miss Lankester who then prepared statements for Ms Tyler and Mr Tyler, which were never signed. Miss Tyler's and Mr Tyler's whereabouts were not known.
11. The Defendant relied on the evidence of the Defendant and her husband, Mr Stephen Hedges, Mr Cundall the letting agent, and a witness statement taken from the same Miss Tyler, which conflicts with Ms Lankester's account of what Ms Tyler told her.
12. Both parties relied on expert evidence : the Claimant on Mr Highfield, a Chartered Surveyor; the Defendant on Mr Butcher, a structural and consulting engineer.

The Claimant's lay evidence

13. In addition to giving her account of how the accident happened, the Claimant in her first witness statement said it was raining heavily, the steps had become very slippery and she had been wearing trainers. She said that Mr Stuart had warned her that the steps were slippery.
14. In her second witness statement she said that she had not met Miss Tyler until after she (the Claimant) had been discharged from hospital, that when Miss Tyler used to visit her she would ask Mr Stuart to carry her eldest daughter up the steps "because she said she found the front steps slippery" and that Miss Tyler mentioned that she had slipped on the front steps a few times. She also said that having seen Mr Butcher's report, which mentioned the possibility of contamination, nothing had been spilled on the step but she remembered that the step was dirty and had a black smudge by the wall which could be seen on the photographs.
15. in evidence she confirmed what she had said in her statements. She said she had been sent photographs of the house by Mr Cundall, knew what it looked like and that it was old. She had ascended the steps one foot at a time. She agreed with suggestions that as it was raining heavily the path had puddles in it and was slippery and that steps could be slippery when wet. She did not know what had caused her to slip. She accepted that in most of the neighbouring houses the height of wall in relation to the steps was roughly the same as hers. In fact the photographs show what the position is in other houses. She said she had not considered the steps to be dangerous at time - "It did not seem obviously dangerous at that point".
16. She was a very straightforward reliable witness doing her very best to tell me the truth.
17. Mr Stuart was also a straightforward witness doing his best to tell me the truth. In his statement he had described the rain as drizzle. In evidence he said it had been dry at first, then drizzle, then heavy rain. Both in his statement and in evidence he said he had earlier slipped on the middle step when carrying a box up the stairs and had dropped the box. As a result he had warned the Claimant that the steps were slippery. He said that in the aftermath of the fall, when paramedics were present, one of them said he had been to the premises before when an old lady had slipped on the same steps. This something which Ms Tyler also mentioned to Ms Lankester, stating the lady had fallen over the wall.
18. Mr Stuart said he had continued to use the steps but both the Claimant, Mr Stuart and Mrs Porter told me that following the accident they tended to use the rear entrance. If Mrs Porter was going out via front door Mr Stuart said he would accompany her down the steps. In the Claimant's case because she has used and uses a walking stick or sticks I assume this may have been because using the rear access was easier.
19. He too said that prior to the accident he had not taken notice of the steps. He said you could see it was a low wall alongside the steps but there was nothing unusual about that. He had not paid much attention to other houses in the street. He said that a neighbour had built up the wall of his house at that point as he did not want his children to fall over but it had not been high enough to prevent an adult going over. The neighbour would appear to have been Mr Tyler.
20. Mrs Porter gave supporting evidence. She is now getting on in years and was willing to agree with almost everything Mr Pooles for the Defendant put to her. I do not find that her evidence adds to what others have said. Similarly Mr Stephen Drysdale, who had witnessed the accident and whose evidence was read.
21. I found Ms Lankester a reliable witness who I am sure took care in recording what Ms Kellie Tyler and Mr Tyler told her and did not put anything into their mouths. I regard the statements she prepared for them as fairly representing what she was told by each of them.
22. Ms Tyler's account as given to Ms Lankester on 13^th January 2011 and recorded in her unsigned statement differs from the statement she later provided to the Defendant. She expressed the opinion to Ms Lankester that the steps were unsafe, said she had gone out of 3 Cannon St and nearly fallen over the steps - "There is nothing to step on" and that she had nearly slipped and gone over in the same way as the Claimant, it had happened to her about two or three times since the Claimant's accident. She suggested the steps were not properly maintained because the paint was coming off and stated that Mr Tyler was for ever painting the steps to make sure it was "secure". She stated they had used non slip black paint on their steps. She said a lady had fallen over the wall eight years ago but, it seems, gained this information from a paramedic who attended the Claimant.
23. By 2012 Ms Tyler was living in No 3 Canning Street having moved from the next door property in March 2011, two months after her conversation with Ms Lankester. Her statement for the Defendant is signed and undated with the front page allowing for insertion of a date in 2012. So by this time she was the Defendant's tenant. In her statement she says that that the steps have been repainted once since she moved in, in April 2012, that no-one has slipped on the steps during the time she has been in the property, that she has used the steps in very wet weather and in snow and not found the steps to be slippery and has had no difficulty using them. She makes no mention of the lack of guarding to the steps. The statement appears to me to have been drafted with great care to confine its observations on relevant matters to what has been her experience since March 2011.
24. Mr Tyler told Ms Lankester, that when he moved in to No.1 there was a picket fence to the right side of the steps, alongside a drop to basement level, which he replaced with a wall. He had also extended the steps since when double glazed doors had been put in they had reduced the depth of the steps by half and the top step was not deep enough. He had installed the double glazing so the new door, brick wall and extended steps had all been done in one go. He was critical of the steps on Number 3 but his criticism appears to have been directed to the restricted depth of the third step.

The Defendant's lay evidence

25. The Defendant and her husband both gave evidence, in her statement dated 15^th August 2009 the Defendant said the property had been purchased with a view to renting it. Prior to the Claimant taking up her tenancy the property had been empty for about 9 months. They had been unable to sell it. During that 9 months they had inspected the property from time to time. She said her husband was a builder and did the maintenance. Over the years they had modernised the property internally and installed new windows and doors. They kept no records of inspections or repairs. They had not altered the front elevation nor the steps, apart from painting the steps "with appropriate concrete floor paint".
26. She said that when she acquired the property the step was "just concrete". She had asked her husband to paint the steps to improve the appearance. She said the steps were painted with red floor paint obtained from B and Q. "It is not a gloss paint. It is specifically a floor paint described on the tin as "ideal for concrete floors" She said they had always applied the same paint and Steve had repainted the steps every year and that the step had last been repainted in December 2007 or January 2008, when the last tenant left. She said that following the accident and on advice she added a handrail and the steps were repainted. She said no previous accidents had been reported, that she had not carried out written risk assessments but "obviously when periodically visiting the property, I together with my husband Steve, have ensured that it is properly maintained". Following the accident and on advice she had added a handrail and the steps were repainted.
27. Cross examination proceeded on the basis that ascending steps involved a greater risk of slipping/falling than walking on steps, which risk may increase in inclement weather because the steps were uncovered, to which she responded that she would presume people would not fall in the first place. She did not agree that the wall was not high enough for protection if someone fell but agreed that care would ensure that the application of paint did not increase the risk of someone falling but thought at the time that the paint had non-slip properties then agreed that she had not thought about the non-slip quality at the time. Its use had initially been cosmetic.
28. She did not agree that applying the paint, whose qualities as set out she was asked about, gave rise to an obvious risk that its application would have made the steps smoother, stating that having seen the paint on the steps they had not appeared slippery or smooth, agreed with the proposition that applying gloss paint would increase the risk of slipping but denied that that dictated the need to put up a guard rail to make the entrance safer. Before a new tenant they cleared out any rubbish. She could not remember whether they had ever examined or cleaned the steps. She did not agree that the risk of going over the edge of the steps was obvious and said that if she had thought that there was a risk she would have had had something done but she had never thought of it. She accepted that if someone fell over the edge he might suffer serious injury.
29. Mr Hedges in his short witness statement did not describe his occupation but stated that after his wife purchased the property he did a lot of internal alteration work, replacing flooring, the kitchen and bathroom and redecorating the property. He added "internally the property was in very good order". No one has suggested to the contrary.
30. Others fitted the new doors and windows. He painted the steps with what he described as "a concrete non slip red floor paint" and repainted on average once a year. He recalled last painting the step (prior to the accident) in December 2007.
31. He said there had been no accidents or complaints since they had owned the property (the Defendant said the property had been transferred to joint names after purchase). He said that following the accident he had been asked to repaint the step and put up a wooden handrail. His statement makes no mention of the wall and the drop alongside the steps.
32. In evidence he said he maintained the property. Prior to late 2007/2008 he had painted the steps once or twice a year depending on how they had weathered. He suggested that as the letter box could be reached from the lowest step that step wore the most, as photographs suggest. When he repainted the steps he used to clear the flaked paint and then lightly sand the remaining paint to provide a key and then repaint the steps. He said the steps had not changed : he accepted that the top step was less deep then the lower two steps but said that the new door had been placed in the same "reveals" as its predecessor.
33. He had only used one paint ie the B and Q paint which he thought was a non-slip paint and had applied one coat on each occasion. In addition to maintaining his own properties he maintained property for others, used that paint on boat decks and farm buildings, and had never had the present problem. He accepted the paint tin label did not say "Non slip" and thought one may be less likely to slip on non gloss paint. He denied that the paint was "semi-gloss" but had to accept that the tin said it was. He had erected the handrail at the request of the agent, otherwise he thought he would not have done so. He also stated that if he had known someone was going to fall over the steps he probably would have erected a handrail but the chance never really entered his head. He agreed that the steps had not been a problem before he painted them and said he had not seen any problem in putting paint on the steps. They had received no previous complaint about the steps whether in their painted or unpainted form. He accepted the obvious, namely, that the cost of erecting a guardrail would have been the cost of materials and his labour. He saw the purpose of the guardrail he had erected as twofold ; to accommodate the Claimant's disability and to protect against a fall.
34. Mr Cundall's witness statement said that when he visited the property the steps did not cause him any concern and had the surface done so he would have so told the Defendant. Following the accident he recommended installation of a handrail.
35. In evidence he said that following the accident he recommended the handrail because of the Claimant's condition and because it "would do no harm" to have a handrail there. He said that the risk of falling down to basement level was not a risk which he or anybody else had considered to be a risk prior to the accident. In this respect it was no different from any other old house. He said : "My concern is to let: people take it as it is" or similar words.
36. As far as I am aware Mr Cundall had no qualifications as a surveyor, engineer, in Health and Safety, or any field which involved considerations of the safety and structure of the premises he was letting. If he did, I was not told of them. He told me that this was the only house they represented in the terrace. His views were, I conclude, based on what he considered to be common sense rather than expertise.
37. It was quite evident that no formal risk assessment was ever carried out. Having heard Mrs Hedges I consider she knew very little about the duties a landlord may have in law to her tenants. I do not mean by this to suggest that she was an irresponsible landlord. She could not be described as a professional landlord. Rather she was someone who had purchased a small property as an investment and then sought to make it acceptably habitable. It was also clear to me that until after the accident neither the Defendant nor Mr Hedges had addressed their minds to either the danger resulting from the unguarded drop or any safety consequences of painting the steps.

The expert evidence

38. Mr Highfield came in for heavy criticism from Mr Pooles QC for the Defendant for expressing opinions which were not based on expertise. In some respects Mr Poole's criticisms are justified namely that Mr Highfield expressed views about slipping risk and the slip potential of the B and Q. paint used without having expertise in those subjects. His report appears to me to be a document suggesting lines of enquiry to his instructing solicitors, bolstered with a sympathetic view for arguments favourable to the Claimant, rather than a truly objective report. Indeed he appeared to accept that that was how he perceived his function. What he highlighted appear to be more matters of common sense and experience rather than expertise.
39. In his report he said he visited the property on 14th December 2009. He referred to Building Regulation requirements for fencing and similar places, the provisions of the 1972 Act, and British Standards for guarding balustrades. He commented on the general standard of maintenance of the property and that the guardrail subsequently provided was "somewhat basic and considerably lacking in refinement". He observed that the steps had been painted with what "at first sight appears to be a proprietary concrete floor paint". He said it was difficult to understand how it could be non-slip as alleged because there were no signs of nonslip additives in the paint and it was difficult to understand how a non-slip finish could be achieved with a chemical additive." He observed :

"it is also possible, that when dry, the paint might by a lay person, be considered to be firm and non-slip. However, when wet, the material can easily become slippery."

He also referred to the possibility of the presence of green algae from reference to photographs.

40. He took a number of measurements, about which there is no dispute. He said it was reasonably obvious that no protective guarding was available to prevent a fall over the wall down to basement level. As to the condition of the step he observed that decorative paint had been applied to what appeared to be stone steps and :

"The material (ie stone) usually is, if properly maintained by the householder, reasonably anti-slip. The provision of a painted surface would alter the characteristics of the step. In wet weather, the paint could easily become very slippery. It would also make the surface of the step impervious and subject to green algae colonisation. Again it would become very slippery. It is my understanding that it was raining at the time of the accident."

41. He regarded the condition of the steps and wall as "an accident waiting to happen" stating that problems relating to the step and lack of guarding should have been immediately recognised.
42. In response to instructions that he should look at neighbouring houses he commented that few had handrails leading up to the front door from the path guarding the light well and that in almost every case the rails, walls or fences abut at a level height to the house wall.
43. In evidence in chief Mr Highfield said he said that his expertise did not extend to the science of slipping. As part of his investigation Mr Butcher had commissioned RSK to assess the slipperiness or otherwise of the steps. RSK provided two reports / certificates dated 4^th August 2011 and 18^th April 2012 respectively. Mr Highfield said that when he had had a telephone discussion with Mr Butcher with a view to providing a joint statement, he had not seen the RSK certificate dated 18th April 2012 but saw it on the day he signed the report and took it at its face value, being heavily involved in something else at the time. He had sent an HSE information sheet entitled "Assessing the slip resistance of flooring" to the Claimant's solicitors to assist their understanding. He had downloaded the software referred to in the document, entered the information requested and produced the resulting print-outs which described the risk of slipping on different surfaces eg natural stone when wet ("medium"), natural stone when wet and no cleaning ("significant"), smooth painted lightly contaminated with water ("significant").
44. In cross-examination he accepted that the slip risk result produced by use of the software might be strongly influenced by the material put in which was subjective. He said he did not know whether the various entries were weighted. For each surface under "Surface Usage" he had entered "Pedestrians carrying loads. Rushing pedestrians" as he would have expected the Claimant to be rushing to get out of the rain. He did not know what weight the programme assigned to each entry.
45. He accepted he was not a paint expert but agreed with the suggestion that if you wanted to paint steps the B and Q paint was the sort of paint you would use. He said that when he prepared reports he would mention whether steps had been painted and if so that there was a risk of slipping but could not say that the general practice of surveyors. He said he was not suggesting it was a defect but that there were consequences to painting steps. Most surfaces became slippery when wet.
46. Of the B and Q. paint he said there was nothing on the tin to say it was non-slip, as far as he knew it might have been non-slip but he did not think it was and agreed it was a reasonable choice for a household. He said he could not say, as an expert, whether the steps without paint would have been more or less slippery, by which I understood him to be saying that he was not basing this view on any expertise.
47. In his joint statement with Mr Butcher they had agreed that:

"It was not unreasonable for Joanne Hedges to apply or have applied B and Q paint that can be used externally and is stated as suitable for concrete, tile and stone floors, to the steps."

but he had qualified this statement by stating that it was sold as a floor sealant that could be used externally "but not specifically on steps" and by stating that when used on steps "of either materials" it would be desirable to incorporate a non-slip material such as sharp sand or carborundum grit and that both or either would significantly increase the slip resistance of the steps. He also said that he considered the paint used was ordinary quality paint with no specifically inherent non-slip qualities.

48. In re-examination he said he did not know whether B and Q sold non-slip paint. Although personally he would not have painted the steps, it was perfectly reasonable for the Claimant to have painted them but if he had done it he would have incorporated a non-slip material.
49. Mr Butcher in his revised report dated July 2012 stated he had visited the property on 14th July 2011. He agreed the dimensions given in the Particulars of Claim. He said the step showed negligible signs of wear given that it was over 100 years old. The steps had been painted and the paint surface had worn off where regularly used. The steps were wet when he visited. He stated :

"In my opinion there is no reason to consider that the steps of No 3 can be considered as being in anything other than a good state of repair."

50. He had photographed and exhibited the steps on other houses on both sides of the road and observed that the steps to the properties had over the years been maintained or replaced in a variety of materials ; likewise the fences/walls leading to each upper ground floor entrance.
51. He observed that the Health and Safety Executive ("HSE") had produced a slip potential model setting out the factors relevant to risk of slipping. Controllable factors were Environment, Floor material and Contamination. Predictable factors were Use, Behaviour and Footwear. He did not deal in detail with the HSE publication containing this model, which I shall soon refer to.
52. The slip resistance of the steps, was on his instructions, assessed by RSK STATS whose conclusions were before me. Lack of space prevented them using a pendulum tester but measurements of surface roughness were taken using a surface roughness meter and the results had then been processed by RSK STATS. He commented on their findings, noting that "provided the steps had a degree of roughness (Rz) greater than 20 there was no reason to consider why the painting of the steps was unacceptable from a safety point of view" and pointed out that in this instance the surface roughness had varied between 24 and 56. He thought comparison of the slipperiness between steps in public areas and these steps could not be made because of the variables involved.
53. He noted that the B and Q. paint, described as a floor paint, was said to be "suitable for interior and external use", "ideal for concrete floors", "dries to a semi gloss" and "hardwearing and durable". Further, that it was said to be "suitable use on properly prepared tiles, brickwork, wood, concrete and stone surfaces" and gave "an attractive sheen finish". Paint testing had confirmed that paint on the steps matched paint from the B and Q tin provided by the Defendant.
54. The HSE publication was that which Mr Highfield had referred to. The version before me post dates the accident. It looks at test methods for assessing floor slip resistance and describes their use. It says it is aimed at employers who need to perform accurate measurements of floor slipperiness but will also help employers and other duty holders to assess slip risks in workplaces. It points out that most slipping accidents occur when floor surfaces are contaminated by water.
55. The HSE methodology is based on use of a pendulum tester which measures the coefficient of friction, HSE's preferred method of slipperiness assessment, and use of a surface microroughness meter. It refers to Rz as "a measure of total surface roughness, calculated as the mean of several peak to valley measurements". It suggests that where only roughness data is available it should be used with the Slips Assessment Tool (SAT), a software package, which can be downloaded. Using UKSRG (The UK Slip Resistance Group) guidelines it assesses Rz as follows :

Below 10	High
10-20	Moderate
20 +	Low.

The software package is intended to help users carry out assessments on horizontal surfaces.

56. The 2011 version of the UKSRG guidelines states that microroughness measurements should be used in conjunction with pendulum test results wherever possible and cannot be considered to be an independent test of slip resistance.
57. In evidence Mr Butcher said he was not an expert in paint. He had not been instructed to comment on the presence or absence of a guardrail but in evidence agreed that the drop was effectively unguarded, that an 18" wall would not have been adequate, opinions he expressed as a layman, although he had had training in health and safety.
58. He accepted that the presence of paint on the steps made their surface less rough but said that did not mean the surface was unsafe. He said the 20 micron figure was intended to apply to commercial properties. He knew of no equivalent for domestic properties. He suggested that what was unacceptable for horizontal surfaces would not apply to steps because gait was different on steps. On a horizontal surface slippage occurred because of application of a horizontal force - the heel landing before the sole, whereas on steps the force was vertical.
59. He was taken through the RSK findings. The 4th August 2011 certificate contained the following table:

Location	Condition	Mean Roughness	Slip potential
Middle step right	Degraded paint	24	Low
Middle step centre	Exposed concrete	56.3	Low
Middle step left	Degraded paint	36.1	Low

This was to be compared with the 18th April 2012 certificate which stated

Location	Condition	Mean Roughness	Slip potential
Middle step right	Repainted-good condition	19.5	Moderate
Middle step centre	Repainted - pitted and scratched	13.6	Moderate
Middle step left	Repainted-good condition	16.1	Moderate

It can easily be seen that the reading for the middle step centre in April 2005, after the application of paint but with some wear, is significantly lower than the degraded paint readings in August 2011.

60. Mr Fetto for the Claimant delved more deeply into these figures. The mean figures were from readings taken from 9 positions on the step. The readings for the centre, right and left of the step in April 2012 each had measurements below 10 microns in some places. What it comes down to is, not only that the presence of paint increased the risk, as measured by these tests, but could have increased it to an unacceptable level on parts of the step. Mr Fetto then went one stage further and

referred to photographs taken about 6 weeks after the accident which clearly show some, but not complete, wear down to stone at the centre of the middle step but that to the wall side of the step less wear appeared to have taken place. Thus inroads were made into Mr Butcher's observation that the reading was above 20 microns.

Overview of the facts

61. As I have already stated, I found the Claimant and Mr Stuart reliable witnesses. I accept that Mr Stuart slipped when ascending the steps and warned the Claimant that the steps were slippery. No suggestion has been made that either of them was acting carelessly. There are no allegations that the Claimant was contributorily negligent. I therefore proceed on the basis that she was taking due care and wearing acceptable footwear.
62. The Defendant and Mr Hedges were cautious giving evidence, concerned, I suspect, not to say anything which would be damaging to their interests. But I am satisfied that they told me the truth. I would question Mr Hedges' evidence in one respect only and that is whether or not installation of the new front door had the effect of narrowing the step. But I heard no evidence of whether or not earlier door was itself a replacement. The narrower top step was in any event not causative of the accident.
63. I did not find the expert evidence of Mr Highfield and Mr Butcher helpful, save in the most general way. Neither was an expert in paint. Neither, I consider, was an expert in slipping. Mr Highfield acknowledged this. Mr Butcher had some, but I consider limited expertise in slipping. He relied heavily on the RSK findings.
64. Although it was Mr Butcher who appeared to have introduced reference to the HSE publication, criticism was advanced of Mr Highfield's reliance on the results of applying the model software he had downloaded on the basis that material inputted was subjective in nature : yet the model required inputting of material which by its nature required subjective assessment. On the other hand Mr Butcher was criticised for applying the Rz measurements independently of the pendulum test and using them to assess slipperiness when the HSE publication advised against this.
65. What I am satisfied about is, as the RSK results suggest, that the application of the B and Q paint did reduce the Rz, and increased the slipperiness of the steps. Whilst, as I understand it, the risk of slipperiness is assessed on the assumption that the surface is wet, I cannot think that the presence of heavy rain did anything other than increase the risk further. Thus I find support for Mr Highfield's "amateur" view that painting the steps increased the risk of slipping, especially in the wet. It fits the fact that both the Claimant and Mr Stuart slipped that day.
66. I find the following.

(1) When the Defendant acquired the property the brise soleil wall was already there and that it had probably been erected in the 1970s to replace either a wall or fencing which had previously been there. The wall, at the time of the Claimant's accident was in effectively the same condition as when the Defendant purchased the property.

(2) There was a dangerous drop from the middle step to the basement which was inadequately protected by the wall that was present.

(3) Such a drop would not have been unusual at the time the house was built but by the time of the accident a reasonable man, not least a reasonable landlord, ought to have realised that the drop was dangerous and either raised the wall or provided a guardrail to protect those using the steps.

(4) When the Defendant acquired the property the stone steps were unpainted.

(5) The Defendant decided at some stage after acquiring the property that the steps should be painted to improve their appearance.

(6) Thereafter they were painted approximately once a year by Mr Hedges.

(7) Mr Hedges last painted the steps in December 2007 when the last tenant left.

(8) Thereafter the property was unoccupied until 4th October when it was first occupied by the Claimant who slept there that night.

(9) Between December 2007 and 4th October 2008 the steps were little used.

(10) Painting the steps had increased the risk of slipping on the steps, particularly when the steps were wet.

(11) Neither the Defendant nor Mr Hedges considered that painting the steps would increase the risk of slipping.

(12) Mr Hedges, acting on behalf of Mrs Hedges and with her authority, decided to apply the B and Q paint to the steps.

(13) There was no previous history known to the Defendant or Mr Hedges of anyone slipping on the steps nor had there been any complaint to her or Mr Hedges about the slipperiness of the steps.

(14) The steps could fairly be described as "dirty" but whether or not this affected the slipperiness of the steps on 5^th October 2008 is speculative.

Liability

67. The Claimant invites me to hold the Defendant liable for:

(i) breach of Section 2 of the Occupiers Liability Act;

(ii) breach of covenant and/or breach of Section 4 of the Defective Premises Act 1972;

(iii) breach of duty at common law.

Breach of the Occupiers Liability Act

68. Section 2 of the Occupiers Liability Act provides sets out the common duty of care namely :

"....a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there."

69. The Particulars of Claim had alleged a breach of this duty should it be the position that at the time of the accident the tenancy had not commenced. At the outset of the case Mr Fetto for the Claimant had been minded to withdraw this allegation but retained it at my suggestion. In his closing submissions he made a short submission that the Defendant was an occupier of the steps on the basis that whilst technically it might be said that the Claimant was the occupier of the steps, they being part of the demised premises, it was unreal to suggest that she was the sole occupier. As he put it: "She could not take control of the steps in any meaningful way". He pointed out that under Clause 2.32 she could not carry out any decoration to the Premises without prior consent. As a matter of fact it is clear that it is the Defendant who has always painted the steps.
70. There may be more than one occupier of premises and people may be occupiers for different purposes : Wheat v E Lacon and Company Ltd [1966] AC 552. By Clause 3.2 the Defendant as landlord had to "provide and maintain the structure and exterior...in good repair". No doubt she would have justified her right to paint the steps by reference to this provision in the lease, as at least indicative of her authority to do so.
71. Section 4(6) of the 1957 Act had stated :

"Nothing in this section shall relieve a landlord of any duty which he is under apart from this section."

Section 6(2) of the 1972 Act states :

" Any duty imposed by or enforceable by virtue of any provision of this Act is in addition to any duty a person may owe apart from that provision."

It might therefore be argued that these provisions have not precluded reliance on breach of Section 2 of the 1957 Act.

72. However, I am satisfied that Mr Fetto was right to decide the 1957 Act had no application, not merely because the tenancy and therefore occupation had commenced. Whilst Section 2 of the 1957 Act would appear general in application a landlord's duty was defined by Section 4 of that Act. I cannot think that Parliament intended both sections to define a landlord's duty. Section 4 of the 1957 Act has been replaced by Section 4 of the Defective Premises Act 1972 which is in similar, although not identical, terms to Section 4 of the 1957 Act. I consider therefore that it is to Section 4 of the 1972 Act that one has to look, in the first place, to find the extent of the landlord's duty in tort.
73. I am reinforced in this view by the opinions expressed in the speeches in Murphy v Brentwood District Council [1991] 1 AC 398 where the House of Lords declined to recognise a common law duty going beyond the terms of the Act. Mr Fetto accepts this but submits that the House was concerned with Section 1, not Section 4 and with a claim for pure economic loss not personal injury.
74. However, underlying the reasoning in Murphy was the view that such duties are a matter for Parliament not the courts since, the consequence of imposing a common law duty could, especially in the case of local authorities, have such far reaching effects. Lord Mackay LC in Murphy at p 457 said:

"I am of the opinion that it is relevant to take into account that Parliament has made provisions in the Defective Premises Act 1972 imposing on builders and others undertaking work in the provision of dwellings obligations relating to the quality of their work and the fitness for habitation of the dwelling. For this House in its judicial capacity to create a large new area of responsibility on local authorities in respect of defective buildings would in my opinion not be a proper exercise of judicial power."

Mr Pooles submits the same reasoning should apply when considering duties applying to landlords.

75. I conclude therefore that a landlord's duty of care should normally be confined to that set out in Section 4 of the Act.

Breach of the duty in contract and/or under Section 4 of the Defective Premises Act 1972

The terms of the tenancy agreement

76. The premises demised was "All those premises known as 3 Canning Street...".
77. Clauses 2.1-2.11 made provision for the tenant's responsibility for the interior of the premises, fixtures and fittings, appliances and like matters. Clause 2.11 granted the landlord access on notice to enter the premises to inspect the state of repair and decoration thereof "and to paint the outside of the Premises or Building and generally to carry out therein or therefrom any repairs, additions, alterations or other works which may appear to the Landlady...to be necessary to the Premises or Under the heading "Cleaning" Clauses 2.15 -2.17 dealt with chimneys, the insides of windows and smoke alarms. By Clause 2.18 the tenant was not to cause or allow obstructions/blockages concerning internal plumbing, drains downpipes and gutters.

By Clause 2.32 the tenant covenanted not to carry out any decoration to the Premises without prior consent and not to "alter nor interfere with the construction or arrangement of the Premises" without consent.

78. The Landlord's covenants were contained in Clause 3 the relevant subclause of which is 3.2 whereby the landlord covenanted :

"3.2 To provide and maintain the structure and exterior...in good repair....except in respect of damage caused by the Tenant or any invitee or insofar as the Tenant is liable to keep the Premises in repair under clause 2 of this agreement."

Section 4 of the Defective Premises Act 1972

79. This provides :

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

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

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

(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 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) This section applies to a right of occupation given by contract or any enactment and not amounting to a tenancy as if the right were a tenancy, and "tenancy" and cognate expressions shall be construed accordingly."

I have highlighted what I consider to be the relevant parts of the section.

80. In order to show a breach of Clause 3.2 and/or Section 4 the Claimant has to show the premises were "not in good repair". On the meaning of "repair" Mr Fetto drew my attention to Quick v Taff Ely Borough Council [1986] QB 809 where Lawton LJ at p 821 stated :

"that which requires repair is in a condition worse than it was at some earlier time".

In the same case Dillon LJ cited with approval the earlier words of Atkin LJ in Anstruther-Gough-Calthorpe v Mc Oscar [1924] 1 KB 716 at p 734 that repair

"constitutes the idea of making good damage so as to leave the subject so far as possible as though it had not been damaged".

81. In Alker v Collingwood [2007] 1 WLR 2230 the Court of Appeal had to consider whether a landlord was liable under Section 4 of the 1972 Act for injuries caused to a tenant whose arm went through a glass panel in her front door. The panel was made of ordinary not safety glass. Breach of duty at common law had been abandoned below and the court was concerned essentially with whether or not the unstrengthened glass was "a relevant defect" for the purposes of the 1972 Act. The Claimant's case was that there was a relevant defect because it was dangerous. The Defendant's case was that the glass did not require repair.
82. Laws LJ, with whom Carnwath LJ agreed, stated a duty to repair could not be equated with a duty to make safe and that a duty to keep "in good condition" could not encompass a duty to put in a safe condition. He added this at p 2236 :

"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."

His approach echoes that of Lawton LJ in Quick who said at p821:

"..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".

83. As regards the unguarded drop Mr Fetto accepts that there is no evidence that the wall at the time of the accident was any different from when the Defendant acquired the property. It cannot be said that it was out of repair.
84. As regards the steps Mr Fetto says this. The stone steps unpainted were in good repair. Painted they became less slip resistant and more prone to become slippery when wet or contaminated. Therefore they required repair. He accepts that context is important but submits that the function of the steps was to provide safe access and that that function was undermined when the steps became slippery because of the paint. He says that the court should bear in mind that those using the steps may be carrying objects of different shapes and sizes, that the steps were not protected against the elements and that they were alongside the unguarded drop.
85. This argument is semantically attractive. However, I consider it is stretching the meaning of the word "repair" to apply it to the removal of the paint. The paint did not replace the stone but was additional to it. The stone did not require repair. The paint did not require repair: what it required was removal.
86. I would therefore not find on the facts of this case that the presence of the paint caused the steps not to be "in good repair". Accordingly the presence of the paint did not give rise to a breach of Clause 3.2 and Section 4 of the 1972 Act.

Breach of duty at common law.

87. Cavalier v Pope [1906] AC 428 decided that a landlord who lets premises in a dangerous condition owes no duty to remedy the defect and no duty of care to a third party injured as a result of the defect. This decision has come in for much criticism and attempts have been made to limit its effect, especially since Donoghue v Stevenson [1932] AC 562 which defined the extent of the modern duty of care in personal injuries actions. In Greene v Chelsea Borough Council [1954] 2 QB 127 Denning LJ said the doctrine, based on privity of contract, had received its quietus following Donoghue v Stevenson.
88. Judges in later cases have not expressed such positive views. In Rimmer v Liverpool County Council [1985] 1 QB 1 John Stephenson LJ giving the judgment of the court dissented from what Denning LJ had said about Cavalier v Pope but said it should be "kept in close confinement". In the result the Court of Appeal distinguished it and held that a local authority landlord who had also designed and built the let premises owed a duty of care, not as landlord but as the designer/builder of the building for installing insufficiently strong glass in a glass panel which caused the tenant injury. Rimmer was followed by the Court of Appeal in Targett v Torfaen Borough Council [1992] 3 All ER. More recently in Boldack v East Lindsay District Council 31 HLR 41 May LJ held that Cavalier v Pope was binding authority unless it could be distinguished. All these cases concern defects which pre-existed the tenancy.
89. Mr Fetto accepts that this court is bound by Cavalier v Pope but submits that the Defendant owed the Claimant a duty of care at common law, independent of the provisions of the 1972 Act. He submits that they should have guarded the drop and either not painted or removed the paint from the steps.

Does a duty exist at common law

90. To establish the existence of the duty Mr Fetto relies on the decision of Mackay J in Lips v Older [2005] PIQR P14, where a tenant of a bed sitter, one of many in a house owned by the defendant landlord, fell down into a basement well from a parapet wall on which he had been sitting. The premises had probably been built in about 1900 and if the wall had had railings they had probably been removed in 1940 or so as part of the war effort. The defendant was held to have owed the claimant a duty of care. Mackay J said at para 40 :

"To consider, first, the defendant's duty of care in these circumstances, this is entirely a case based on common law negligence. Mr Braithwaite accepts that it is not taken any further by any actionable breach of statutory duty. The duty of care could, therefore, be formulated for the purposes of this case in this way. The defendant had a duty to take such care as was reasonable in all the circumstances to ensure that people who he could contemplate using the path to this front door were reasonably safe to do so. The standard of care is, of course, flexible. It would be different for a private household from a children's home, or say, a clinic for people with disability of one sort or the other."

Cavalier v Pope was not, apparently, mentioned. Mr Pooles submits that the finding of a duty of care could be justified on the basis that the defendant retained occupation of the wall as part of the common parts of the building.

91. Lips was mentioned by Brooke LJ in Sowerby v Charlton [2006] 1 WLR 568, a case broadly similar to the present, where the defendant was allowed to resile from an admission of liability but the court ruled that the judgment should stand. Brooke LJ at paras 29-31 stated :

"29 In Lips v Older [2004] EWHC 1686 (QB) Mackay J was concerned with a similar case involving a fall by a 42-year-old man (who was known by his landlord to be an alcoholic) into the basement area of a house in Hove. He held the house owner one-third liable. He was influenced by the consideration that it was foreseeable that any of the tenants, who were largely single students, would return to the premises in drink, and that the installation of a simple handrail on one side was an inexpensive and reasonable precaution. It is fair to say that he found this a finely balanced case and there were features of it, not present in the present case, that militated against the landlord.

30 The present case, too, would be finely balanced. But in all the circumstances we regard it as inconceivable that any High Court judge would fail to find the defendant at least partly liable. There is not only the fact that when confronted with a very large damages claim her insurers, their reinsurers, and their very experienced solicitors accepted liability after having had plenty of opportunity to investigate the circumstances of the accident. There is also the fact that parties given by the occupiers of the ground floor flat were known to be not infrequent events, with the reasonably foreseeable consequence that people might leave the flat the worse for wear for drink, with an unguarded eight-foot drop onto a very hard surface on their left hand side.

31 A further relevant consideration is the fact that Judge Playford QC, who also has vast experience of personal injuries litigation, expressed the view that he thought that the claimant would succeed in this case on primary liability. It seemed to him that the danger of a fall was an obvious hazard that could be remedied at very little expense by anyone who chose to apply their mind to the danger.

32 In all the circumstances we considered that there was no real prospect of the defendants resisting a finding of primary liability."

It appears that Cavalier v Pope was not cited to the court.

92. Mr Fetto submits Sowerby is binding on the court as authority for the proposition that a duty of care was owed. I do not regard Sowerby as providing Court of Appeal authority for the existence of a common law duty of care in the circumstances of the present case. It is clear that the case was primarily concerned with the operation of the CPR and whether or not judgment should be set aside rather than whether or not a duty of care existed. I regard Brooke LJ's words as expressing a view on what was likely to happen in the context of whether or not judgment should be set aside rather than declaring that a duty of care did exist, also perhaps what he instinctively considered would be a fair outcome.
93. Mr Fetto submits that the scope of the common law duty is not restricted by the 1972 Act and relies on Section 6(2) of the Act. He accepts that in Murphy the House of Lords declined to recognise a common law duty going beyond the terms of the 1972 Act but seeks to distinguish it (see above).
94. The decision of Mackay J is, of course, very persuasive, coming as it does from a judge who is very experienced in this field but it is important to note that the case was presented to him as a case based on common law negligence. There is nothing to suggest that the existence of the duty of care was disputed. Rather it appears to have been accepted and therefore the essential question for the judge was whether or not it was breached. It is difficult therefore to regard it as deciding definitively that a duty of care exists.
95. There is an apparent conflict between Lips and Cavalier v Pope. Mr Fetto submits that I am bound by Sowerby on this point. For the reasons I have given I do not accept that submission. He also suggests that, at least so far as painting the steps is concerned, Cavalier v Pope can be distinguished on the grounds that in painting the steps the Defendant owed the Claimant a duty, as he put it in his skeleton argument, to take care not to cause harm by her ie the Defendant's positive action. He reminds me of John Stephenson LJ's observation that Cavalier v Pope should be kept in close confinement and how landlords when acting in other capacities such as a contractor, as in Rimmer, have been held to owe a duty of care. He relies on the speech of Lord Salmon in Anns v Merton Borough Council [1978] AC 728, at p 768 :

"The immunity of a landlord who sells or lets his house which is dangerous or unfit for habitation is deeply entrenched in our law. I cannot, however, accept the proposition that a contractor who has negligently built a dangerous house can escape liability to pay damages for negligence to anyone who, e.g., fall through a shoddily constructed floor and is seriously injured, just because the contractor happens to have been the owner of the land upon which the house stands. If a similar accident had happened next door in a house which the contractor had also negligently built on someone else's land, he would not be immune from liability. This does not make any sense. In each case the contractor would be sued for his negligence as a contractor and not in his capacity as a landowner: the fact that he had owned one plot of land and not the other would be wholly irrelevant, I would hold that in each case he would be liable to pay damages for negligence."

However, almost immediately after these words Lord Salmon stated :

"Cavalier v. Pope [1906] AC 428 is so far away from the present case that I express no opinion about it."

96. He also points out that in Dutton v Bognor Regis Urban District Council [1972] 1 Q.B 373 Sachs LJ distinguished Cavalier v Pope on the basis that in that case the landlord had not created the dangerous state of affairs. He acknowledges that Anns was departed from in, and Dutton was overruled by, Murphy but relies on the fact that the quoted words of Lord Salmon were approved by Stephenson LJ in Rimmer and submits they remain good law.
97. I am bound both by Cavalier v Pope, Rimmer and Targett. In Rimmer and Targett the danger was caused by the defendant when acting in a different capacity from that of landlord, indeed before becoming a landlord. In the present case in having the steps painted the Defendant was doing something that a landlord in her position could well do. I do not regard her as acting in any different capacity so as to justify distinguishing Cavalier v Pope on that ground.
98. In this connection it appears to me relevant to distinguish between the unguarded drop and condition of the steps due to the presence of paint. The unguarded drop pre-existed the Defendant's acquisition of the property whereas the paint was applied, at her instance, after the Defendant acquired the property.
99. I have no difficulty in concluding that I am bound by Cavalier v Pope so far as the unguarded drop is concerned and therefore conclude that the Defendant had no duty to guard it. But so far as the application of the paint is concerned I see no reason why the Defendant should not have a duty to take reasonable care to ensure its application did not create an unnecessary risk of injury. Otherwise a landlord would have carte blanche to act with impunity and create dangers which would not be caught by the 1972 Act.
100. I would therefore conclude that where personal injuries result from a failure to repair then the duty of care is that set out in the 1972 Act but where the Act does not apply, as is the case here, then a landlord owes a duty to take reasonable care not to create an unnecessary risk of injury.

Breach of the duty of care

101. There is always a risk of slipping on steps, usually one resulting from misplacing a foot or feet on a step. The presence of wet increases the risk. The Claimant therefore would have faced an increased risk of slipping that day, even had the steps not been painted, because the steps were wet. She accepted that there were puddles on the concrete path and the path was slippery. But the presence of paint unnecessarily increased, and in my judgment significantly increased, the risk. I find that the presence of the paint materially contributed to her slipping. Having slipped there was nothing to prevent her falling as she did.
102. But that of itself is insufficient to establish liability. I accept that the paint was sold as paint suitable for stone surfaces, indoors and outdoors, by a well known supply chain, who as I suspect is also well known, supply DIY enthusiasts, jobbing builders and small building businesses. It is not described as non-slip paint and there is nothing in the paint analysis carried out by RSK to suggest it is. If it had been, had it contained sharp sand or carborundum, or had it been applied mixed with sharp sand or carborundum, I am sure the Defendant would have been the first to tell me. Mr Hedges selected and then applied the paint.
103. In applying the paint to the steps the Defendant was doing what I am satisfied many other people in his position would have done. Painting steps appears to have been fashionable on the Claimant's side of the street, although what paint was used is not the subject of evidence. He was not applying ordinary paint but paint said to be suitable for outdoor use which contained no warning against its use on steps nor that its surface may become slippery in the wet, nor that it should be applied mixed with sharp sand or carborundum. The References to "semi-gloss" and producing a sheen may have alerted the knowledgeable to question whether it was suitable for steps, but not, in my judgment the man in the street. For this purpose I would regard Mr Hedges as "the man in the street" rather than a well informed builder. Mr Highfield agreed with Mr Butcher that it was not unreasonable for the Defendant to apply or have applied the B and Q paint to the steps, although it appears that he personally would not have done so.
104. I regret that I cannot conclude on the evidence that there was a breach of duty.
105. I have considerable sympathy for the Claimant who to some extent appears to be the victim of a decision which many consider needs to be reconsidered but her remedy can only be in another court.

JOHN LEIGHTON WILLIAMS QC

I direct that pursuant to CPR PD 39 Para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

27th July 2012