SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lady Paton Lord Hodge	[2012] CSIH 58 PD279/09 OPINION OF THE COURT delivered by LADY PATON in the cause KATHLEEN KIRKHAM Pursuer and Reclaimer; against LINK HOUSING GROUP LIMITED Defenders and Respondents: _______

Pursuer and reclaimer: G Clarke QC, Hamilton; Balfour and Manson LLP (for Levy & McRae, Glasgow)

Defenders and respondents: D Stephenson QC; Andersons

4 July 2012

Introduction

[1] On 13 December 2006 the pursuer tripped and fell on her garden path at 12 Moorelands Place, Addiewell, West Calder, injuring her shoulder. She sued her landlords, the defenders, relying upon both contract and delict. A proof took place in February 2010. Damages were agreed at £92,393.40. Ultimately the defenders were assoilzied. The pursuer now reclaims.

The physical layout

[2] The garden path consisted of concrete slabs measuring 3 feet by 2 feet, laid in a line from the pursuer's front door across grass to a pavement. Beyond the pavement was a roadway with parking areas. Two slabs near the pavement had become uneven, with the edge of one being about 20 mm higher than the other. While the reason for the pursuer's fall was disputed at the proof, the defenders now accept that the pursuer tripped over the raised edge of the uppermost slab.

The pursuer's claims in law

Contract

[3] The pursuer relied upon Clauses 5.3, 5.4, and 5.8 of her tenancy agreement dated 12 December 2002. That agreement provided inter alia as follows:

"1.2 We agree to rent accommodation to you on the terms and conditions in this Agreement. The accommodation includes the fixtures and fittings contained within it, the use of the common parts and the means of access to it ... The term 'common parts' is explained at paragraph 1.11.

1.11 INTERPRETATION

In this Agreement, the following words have the following meanings except where the context indicates otherwise ...

·       Common Parts - this includes any part of the structure and exterior of the building in which the accommodation is located (such as the roof, guttering, and outside walls) as well as any common facilities in that building (such as: the common close, common stairway, entrance steps, paths, entrance doors ...) ...

5.3 During the course of your tenancy, we will carry out repairs or other
work necessary to put the house in a condition which is tenantable, wind and watertight and, in all other respects, reasonably fit for human habitation. We will carry out all repairs within a reasonable period of becoming aware that the repairs need to be done. Once begun, the repairs will be finished as soon as reasonably possible. All repairs will be done to the standard of a reasonably competent contractor, using good quality material.

5.4 We will carry out a reasonably diligent inspection of the common parts before the tenancy begins. We will take reasonable steps to remove any danger we find before you move into your house. We will repair any other defect we find which will significantly affect your use of the common parts, or the house, within a reasonable period. We will repair any damage to boundary walls and fences within a reasonable period if the damage significantly affects your use of the common parts of your house or if it poses a danger to any user. During the course of the tenancy, we will carry out inspections, at reasonable intervals, of the common parts ...

5.8 We will keep in repair the structure and exterior of the house, including ...

·       pathways, steps or other means of access ...

·       We will keep in repair and in proper working order any installations we have provided for space heating, water heating and sanitation and for the supply of water, gas and electricity ...

·       We will inspect annually any gas installations in the house provided by us. We will provide you with a copy of the inspection report within 28 days of the inspection. If the inspection reveals the need for repair or replacement of any such installation, we will do so within a reasonable period. We will give you a copy of the current inspection record before the beginning of the tenancy ... "

Delict

[4] The pursuer also relied on the Occupiers' Liability (Scotland) Act 1960. Sections 1, 2 and 3 of that Act provide inter alia:

1 Variation of rules of common law as to duty of care owed by
occupiers

(1) The provisions of the next following section of this Act shall have effect, in place of the rules of the common law, for the purpose of determining the care which a person occupying or having control of land or other premises (in this Act referred to as an 'occupier of premises') is required, by reason of such occupation or control, to show towards persons entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on them and for which he is in law responsible.

(2) Nothing in those provisions shall be taken to alter the rules of the common law which determine the person on whom in relation to any premises a duty to show care as aforesaid towards persons entering thereon is incumbent ...

2 Extent of occupier's duty to show care

(1) The care which an occupier of premises is required, by reason of his occupation or control of the premises, to show towards a person entering thereon in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on them and for which the occupier is in law responsible shall, except in so far as he is entitled to and does not extend, restrict, modify or exclude by agreement his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger ...

3 Landlord's liability by virtue of responsibility for repairs

(1) Where premises are occupied or used by virtue of a tenancy under which the landlord is responsible for the maintenance or repair of the premises, it shall be the duty of the landlord to show towards any persons who or whose property may from time to time be on the premises the same care in respect of dangers arising from any failure on his part in carrying out his responsibility aforesaid as is required by virtue of the foregoing provisions of this Act to be shown by an occupier of premises towards persons entering on them."

The evidence

[5] The pursuer gave evidence. Six witnesses were led on her behalf. There was also a joint minute, photographs of the path, and the tenancy agreement.

[6] The six witnesses were the pursuer's husband and son; a chartered civil engineer and expert witness William O'Britis; and three of the defenders' employees namely John Laird, Ernest Columbine and Maureen Middleton. The last three witnesses had been cited to give evidence on behalf of the defenders. In the event they were led in evidence by counsel for the pursuer. As a result, the defenders had no evidence to lead.

[7] John Laird (69), building inspector, gave evidence that he retired in May 2005. While he was in post, there was an ad hoc system for inspecting the defenders' properties. If a tenant reported a fault, Mr Laird would visit the property and inspect that fault. At the same time, he would carry a general inspection of the property. If he saw what he considered to be a tripping danger (for example, a difference in slab levels of 20 or 25 mm) he would order a repair.

[8] Ernest Columbine (39), maintenance officer, began working for the defenders in 2006. Inspections known as "estate inspections" were carried out quarterly, but as Moorelands Place contained no common areas, there were no estate inspections there. There were also monthly inspections of common parts in other schemes owned by the defenders, but again, as Moorelands Place had no common parts, there were no monthly inspections there. Mr Columbine confirmed that if he had seen a height difference in slabs of somewhere in excess of 15 mm, he would have reported it and made out an urgent works order to be completed within three days.

[9] Maureen Middleton (54), Director of Housing and Technical Services, spoke of a policy of quarterly visits for estate management inspections of the defenders' estates, but could only vouch for that policy being in place from 2008. She could not say if the policy was in force in 2006 (pp 112 to 114). Miss Middleton was asked inter alia a purely hypothetical question (at p 115) as follows: " ... if there were informal monthly inspections at Moorelands Place, what would have been inspected?" Her answer was: "Common areas ... footpaths, parking bays, roadways." She then pointed out that the roadway at Moorelands Place would be adopted by the local authority. At one stage in her evidence, Miss Middleton was referred to a letter dated 11 August 2009 from the defenders' lawyers to the pursuer's lawyers, referring to the defenders' aim to carry out "monthly inspections of Moorelands Place". However, as Mr Columbine explained in his evidence (p 104), the author of the letter appeared to think that there were common parts in Moorelands Place, when there were not.

[10] William O'Britis (53), chartered civil engineer, gave evidence relating to the photographs of the path, his examination of the path carried out a week before the proof in February 2010, the reasons for the development of unevenness in slabs, and the rates at which such unevenness might develop.

The Lord Ordinary's decision

[11] The Lord Ordinary rejected the pursuer's claim, and assoilzied the defenders.

The contractual case: paragraphs [24] to [29] of the Lord Ordinary's Opinion

[12] Clause 5.4 (read with Clauses 1.2 and 1.11): The Lord Ordinary was not persuaded that the footpath was an element within the common parts, for several reasons. He noted that the pursuer's footpath was the means of access to her accommodation; that there was no evidence that the footpath was used or needed by other tenants; and that in the photographs, the footpath and grassed areas had the appearance of being exclusive to the tenants at number 12. He concluded that the footpath was not a common part qualifying for regular inspection within Clause 5.4, and that the pursuer's contractual case, so far as founded on Clause 5.4, failed.

[13] Clause 5.3: In relation to Clause 5.3, the Lord Ordinary held that the defenders had to be made aware that work needed to be done. In the present case, there was no evidence that the defenders were ever made aware of the state of the footpath. There was no scope for deemed awareness; but even if there were, there was no basis in the facts for deeming the defenders to have knowledge of the presence of the raised slab edge. Accordingly, the Lord Ordinary held that the pursuer's contractual case, so far as founded on Clause 5.3, failed.

[14] Clause 5.8: The Lord Ordinary rejected the submission that Clause 5.8 should be read as subject to the concept of reasonableness, resulting in a duty of reasonably frequent inspection. He held that, on a proper construction, Clause 5.8 did not impose any repair obligation over and above what was to be found elsewhere in the tenancy agreement or in statute. To construe Clause 5.8 as imposing an additional repair obligation would have the effect of contradicting or rendering redundant the previous clauses. While Clause 5.8 had the commendable purpose of spelling out the implications of the defenders' repair obligations, it did not impose any additional obligation. The Lord Ordinary therefore concluded that the pursuer's contractual case, so far as founded on Clause 5.8, failed.

The delictual case: paragraphs [22] and [30] of the Lord Ordinary's Opinion
[15] The Lord Ordinary noted that there was no evidence that the defenders actually knew of a danger. There was no evidence of complaints. Nor was there evidence of what other landlords, similarly situated to the defenders, did by way of periodic inspection. The tenancy agreement imposed an obligation upon the defenders to inspect the common parts, which the Lord Ordinary accepted had to be done with reasonable diligence. When the defenders' maintenance officers visited particular properties, they had to be alert to any dangers to tenants. But there was nothing in this case to support a duty to inspect those parts of the property let (the house) that were in the exclusive possession of the tenant and the condition of which was entirely apparent to the tenant. The footpath was such a part. The evidence about the defenders' ad hoc system of inspection and the frequency of visits to properties was vague. There was no satisfactory evidence of what a reasonable inspection of common parts or a reasonably diligent implementation of the ad hoc system would have amounted to. On the evidence, the Lord Ordinary was left with no idea what reasonable care required in relation to the footpath, positioned as it was at the end of a cul de sac. The pursuer's delictual case accordingly failed.

The pursuer's failure to report any defect

[16] The pursuer gave evidence that she had not noticed the defect. In assessing contributory negligence at nil, the Lord Ordinary held that someone in her position should not be expected to attach any significance to the unevenness, unlike a housing officer with his professional interest and experience.

The reclaiming motion
Submissions for the pursuer and reclaimer

[17] Senior counsel contended that the Lord Ordinary should have held that there were common parts in Moorelands Place, whether the garden path or the pavement adjoining the path, which would require inspection at quarterly, or possibly monthly, intervals (Clause 5.4). "Paths" were expressly included in the definition of common parts (Clause 1.11). If the contract was ambiguous to any extent, it should be construed contra proferentem (cf GA Estates Ltd v Caviapen Trustees Ltd 1993 SLT 1051 at p 1057). In any event, the Lord Ordinary should have preferred the evidence of Miss Middleton (said to be to the effect that the pavement at 12 Moorelands Place was a common part and would therefore have been inspected regularly), a fortiori as the defenders had led no evidence and therefore the pursuer was entitled to the most favourable inferences from the evidence led on her behalf (Ross v Associated Portland Cement Manufacturers Ltd [1964] 1 WLR 768, Lord Reid at p 775). In other words, the Lord Ordinary should have accepted Miss Middleton's evidence and concluded that Mr Columbine was wrong in his belief that there were no common parts in Moorelands Place.

[18] Thus the Lord Ordinary should have concluded that there should have been maintenance officers present in Moorelands Place at quarterly intervals, or possibly monthly, in implement of Clause 5.4. Then, even if the pursuer's garden path could not be deemed to be a common part, any maintenance officer inspecting the pavement adjoining the path could not but notice the unevenness of the slabs. That unevenness had, on the evidence, developed over a period of months, and accordingly could be inferred to have existed for a period of over 6 months prior to the accident. Accordingly, one of the defenders' maintenance officers should have noted the unevenness and instructed a repair within 3 days. Thus the defenders' failure to repair the slabs constituted a breach of Clauses 5.3 and 5.4. Further, Clause 5.8 should be construed as containing the implied words "take reasonable care to". Reasonable care would, in respect of some of the items listed in the clause, permit the landlord to await a complaint from a tenant. But in other cases, reasonable care would require inspection. Each case depended on its circumstances. In the context of paths which were accessible from the common parts of the estate (for example, from pavements), counsel submitted that reasonable care required inspection of the paths along with those common parts. If there was any ambiguity, the contract fell to be construed contra proferentem.

[19] Had the appropriate repair been carried out timeously, the pursuer's accident would not have occurred. In other words, had the defenders properly implemented their own system, the defect would have been detected and remedied before the pursuer's accident (cf McGeouch v Strathclyde Regional Council 1985 SLT 321).

[20] Finally, the Lord Ordinary was correct to hold that a tenant such as the pursuer would have no reason to think that a height difference in excess of 15 mm would constitute a danger. In finding that the only obligation resting upon the defenders was to react to a complaint about the path, the Lord Ordinary effectively negated the defenders' obligation to repair, as the tenant would not be aware that he or she should complain.

[21] The decree of absolvitor should be recalled, and decree granted in favour of the pursuer for £92,393.40 with interest from 12 March 2010.

Submissions for the defenders and respondents

[22] Senior counsel for the defenders submitted that the evidence established that no regular inspections of the rented-out property in Moorelands Place took place in 2006. Furthermore, it had not been shown that the defenders were in law under any duty to carry out such regular inspections. At common law, a landlord was under no duty to inspect and maintain property once it was let out to a tenant: Hampton v Galloway & Sykes (1899) 1F 501, at pp 507-8; Wolfson v Forrester, 1910 SC 675, at pp 680-2; Dickie v Amicable Property Investment Building Society, 1911 SC 1079, at pp 1085-6; Baikie v Wordie's Trs (1897) 24R 1098 at p 1101; Irvine v Caledonian Railway Co (1902) 10 SLT 363; McCarrick v Liverpool Corporation [1947] AC 219, at pp 223-4, 228-30 and 232). That position had not been altered by the Occupiers' Liability (Scotland) Act 1960. Thus there was no obligation upon the defenders to carry out periodic inspections of premises once those premises were let to a tenant, although the landlord remained liable for (and therefore under a duty to inspect) common parts which the landlord retained under his control and occupation.

[23] As for the tenancy agreement, it was accepted that there was an obligation to carry out regular inspections of the common parts (reflecting the common law position). However in the present case, the evidence established that there were no common parts in Moorelands Place.

[24] In the result, therefore, the pursuer had failed to prove that there should have been regular inspections of Moorelands Place which should have made the defenders aware of the defect in the pursuer's garden path. As there had been no request for a repair, and as the path was not a common part, no breach of contractual duty in terms of the tenancy agreement had been established.

[25] The reclaiming motion should be refused.

Discussion
Contract

[26] In terms of Clause 5.3 of the tenancy agreement, the defenders undertook to "carry out all repairs within a reasonable period of becoming aware that repairs need to be done". In the present case, the defenders were unaware of any defect in the garden path. We agree with the Lord Ordinary that the clause is not engaged unless the defenders are made aware of a repair requiring to be done. We also agree that, on a proper construction of the clause, the pursuer cannot rely upon deemed knowledge. The defenders cannot, in our view, be held to have been in breach of Clause 5.3.

[27] In terms of Clause 5.4 of the agreement, the defenders undertook to "carry out inspections, at reasonable intervals, of the common parts". Again, we agree with the Lord Ordinary that the pursuer's garden path was not a common part. While we accept that Clause 1.11 of the tenancy agreement includes paths as a type of property which might be categorised as a common part, the question whether any particular area or item is a common part is, in our view, one of mixed fact and law, to be assessed in the circumstances of every case. The pursuer's garden path was not a "common facility" shared by other tenants or residents, but rather was a path dedicated to access to 12 Moorelands Place. As Mr Columbine explained at p 100D-F):

" ... A 'common part' would be a part that's part of a scheme as against attributable to an individual property, so if the property was sold off, that [part] wouldn't be sold off with that property. It would still remain as part of that particular scheme, such as a shared drying area, for example, or a common close ... or a common window ... in a stair, something like that."

The import of Mr Columbine's evidence was that neither the grassed area between the pursuer's front door and the pavement, nor her garden path which ran over that area, was a common part. Similarly Miss Middleton gave clear evidence that neither the grassed area nor the path which ran over it was a common part (p 131). The defenders' decision to take charge of the grass-cutting and the fencing in the estate for aesthetic reasons (pp 102, 115) does not, in our opinion, alter the position. Accordingly we consider that the Lord Ordinary was correct, both in fact and law, to hold that the path was not a common part, and that it did not give rise to a duty of regular inspection in terms of Clause 5.4.

[28] Counsel for the pursuer nevertheless argued that esto the garden path was not a common part, the pavement adjoining the path was a common part. Thus the pavement required inspection quarterly or monthly, and during such inspection any employee of the defenders should see the tripping hazard constituted by the uneven slabs in the pursuer's garden path where it joined the pavement. In our opinion, however, there was no evidence that the roadway, parking bays, or pavement at Moorelands Place were the responsibility of the defenders. There was, in fact, contrary evidence, as Miss Middleton explained at p 115B-C that:

" ... the roadway [at Moorelands Place] would be adopted by the local authority."

In our opinion, on the basis of the evidence before him, the Lord Ordinary was entitled to conclude that it had not been proved that the pavement was a common part of the defenders' estate at Moorelands Place thus requiring regular inspections by the defenders.

[29] In term of Clause 5.8 of the Agreement, the defenders undertook to "keep in repair the structure and exterior of the house, including ... pathways, steps or other means of access ..." We do not accept that the words "take reasonable care" should be read into that clause such that there could be argued to be a breach of a duty to take reasonable care by failing to inspect the pathway regularly. In our view, the wording of the clause is clear and unambiguous. There is no reason to import words such as those suggested by counsel for the pursuer because, for the reasons given by the Lord Ordinary, the clause did not impose an additional repair obligation. We are not persuaded that any breach of Clause 5.8 has been demonstrated.

[30] As for evidence about actual inspections carried out by the defenders, Mr Columbine was clear that there were no quarterly or monthly inspections of Moorelands Place. Miss Middleton, when asked the purely hypothetical question quoted in paragraph [9] above, gave an answer which in the context must also be regarded as purely hypothetical. She did not in fact give evidence that quarterly inspection visits were carried out in Moorelands Place. On any view, her hypothetical answer was not one which the Lord Ordinary was bound to accept in preference to Mr Columbine's evidence, even if (which we doubt) Lord Reid's dicta in Ross v Associated Portland Cement Manufacturers Ltd, supra, were thought to be applicable in a case where the defenders fully intended to lead their own evidence at the proof, but the pursuer chose to lead the defenders' witnesses in evidence.

Delict

[31] The pursuer qua tenant was entitled to "such care as in all the circumstances of the case [was] reasonable to see that [she would] not suffer injury or damage by reason of [any danger due to the state of the premises or to anything done or omitted to be done on them]" (Occupiers' Liability (Scotland) Act 1960, ss 2 and 3). The defenders had no actual knowledge of any defect in the pursuer's garden path. Thus in order to succeed in her delictual case, the pursuer would have to establish the defenders' failure to take reasonable care for her safety by, for example, failing to set up an adequate system of inspection, or failing properly to implement a system of inspection already in place.

[32] In relation to failure to set up an adequate system of inspection, the Lord Ordinary noted that there was no evidence of what other landlords, similarly situated to the defenders, did by way of periodic inspection. He observed that:

" ... The evidence about the ad hoc system of inspection and the frequency of visits to properties was vague. There was no satisfactory evidence as to what a reasonable inspection of common parts or a reasonably diligent implementation of the ad hoc system would have amounted to."

He concluded that he was left with no idea what reasonable care required in relation to the footpath, positioned as it was at the end of a cul de sac. He was entitled so to hold. The defenders had, in terms of the tenancy agreement, undertaken certain obligations of inspection and repair. On the evidence available it has not been established that the system undertaken was inadequate and therefore that the defenders had failed in their duty of care in terms of the 1960 Act. Furthermore, at common law a landlord has no duty to inspect a property once it has been let out to a tenant (Hampton v Galloway & Sykes, supra; Wolfson v Forrester, supra; Dickie v Amicable Property Investment Building Society supra; Baikie v Wordie's Trs, supra; Irvine v Caledonian Railway Co supra; McCarrick v Liverpool Corporation, supra). While the landlord has a common law duty to inspect and maintain the common parts which remain under his control and occupation, that obligation was properly undertaken and carried out by the defenders in terms of Clause 5.4 of the tenancy agreement.

[33] Nor do we consider that there is any merit in the pursuer's contention (contained in the Grounds of Appeal and the Note of Argument, but neither formally advanced nor departed from in oral submission) that the Lord Ordinary should have held that there had been a failure properly to implement the ad hoc system of inspection. While there was some evidence relating to ad hoc call-outs to other properties in Moorelands Place in November and December 2006, there was no evidence that any of the defenders' officers were called to 12 Moorelands Place. Accordingly, we are not persuaded that any failure in duty has been demonstrated in the context of the ad hoc system of inspection and repair.

[34] Finally, we do not agree that by holding that the pursuer would have no reason to think that the unevenness in the slabs constituted a danger, the Lord Ordinary was negating the defenders' obligations of inspection and repair. The Occupiers' Liability (Scotland) Act 1960 does not impose a duty of insurance upon the defenders. The defenders must have knowledge, actual or deemed, of any danger before they can be found liable in terms of the Act. There may be many ways in which the necessary knowledge is communicated or attributed to a landlord, not necessarily involving a report by the tenant.

[35] In the result, on the basis of the evidence led on behalf of the pursuer, the Lord Ordinary was, in our opinion, entitled to conclude that she had failed to establish her delictual case.

Decision

[36] For the reasons given above, we refuse the reclaiming motion, and adhere to the interlocutor of the Lord Ordinary. We reserve any question of expenses to enable parties to address us on that matter.