United Kingdom House of Lords Decisions

Die Lunae, 19° Februarii 1973

Parliamentary Archives,
HL/PO/JU/4/3/1245

HOUSE-OF LORDS

O'BRIEN (A.P.) AND ANOTHER (A.P.)

v.
ROBINSON

Lord Reid
Lord Morris of Borth-y-Gest
Lord Diplock
Lord Simon of Glaisdale
Lord Cross of Chelsea




Lord Reid

MY LORDS,

For the reasons given by my noble and learned Mend, Lord Diplock, I
would dismiss this appeal.

Lord Morris of Borth-y-Gest -

MY LORDS,

This appeal raises issues of no little importance. The Appellants were
injured when the ceiling of their bedroom fell upon them. In no way were
they to blame. They were occupying premises belonging to the Respondent.
Payment was being made to him for the use of them by the Appellants.
Is he responsible for injuries, loss and damage which they sustained?

The first Appellant was the 'tenant of a dwelling-house (being the basement
and ground floor of a house in East Croydon) to which section 32 of the
Housing Act, 1961, applied. In his tenancy there was, by virtue of the
implication resulting from that section a covenant by the Respondent which
required him (inter alia) to keep in repair the structure and exterior of the
dwelling-house. The question arises as to what is the meaning of the obliga-
tion of a landlord to his tenant " to keep in repair " the structure of demised
premises. In the present case the ceiling which fell on the 26th November,
1968, must have been out of repair at the time immediately before it fell.
If the obligation of the Respondent was an absolute one in the sense that
ignorance of any condition of disrepair was immaterial then there would
clearly be liability in him. But the meaning of an obligation on the part
of a landlord " to keep in repair " or of comparable obligations has been the
subject of much judicial consideration.

There is a statutory restriction on contracting out of the statutorily implied
covenant. By section 33, subsection (7) of the Act of 1961 any covenant
or agreement is void so far as it purports to exclude or to limit the obligations
of a lessor under section 31. There is, however, power in the County Court,
if the parties consent, to authorise provisions excluding or modifying in
relation to the lease the provisions of section 32 with respect to the repairing
obligations if the Court, in the terms of section 33, subsection (6), considers
it reasonable to do so. In the present case no such authorisation was sought
and there was no purported exclusion of the Respondent's obligations as
lessor. So the question remains as to what is the meaning of a covenant
to keep in repair.

The restriction on contracting out which is contained in section 33, sub-
section (7) of the 1961 Act is in line with a provision contained in the previous
Housing Act. By section 6(2) of the Housing Act, 1957, the covenant there
provided for is to be implied " notwithstanding any stipulation to the
" contrary ". There was a comparable provision in section 2 of the Housing
Act, 1936: so also in section 1 of the Housing Act, 1925.

The obligation on a lessor under section 32 of the Act of 1961 " to keep
" in repair " may be compared with the obligations on a lessor under earlier
Acts. Thus, under the Act of 1957 (see section 6) the implications include
a condition that the house is, at the commencement of the tenancy, and an
undertaking that the house will be kept by the landlord during the tenancy,
fit for human habitation. Under the Act of 1936 there was a comparable
provision (see section 2) as there was in the Housing Act, 1925, (see section 1).



2

See also section 15 of the Housing, Town Planning et cetera Act. 1909. In
the 1936 Act the implied condition was that at the commencement of the
tenancy the house was, and the implied undertaking that during the tenancy
it would be kept, in all respects reasonably fit for human habitation.

So under all these Acts since 1909 the obligation of a lessor where it has
by Statute been implied has been to keep the premises in a certain condition
and for the purpose of considering the issue now arising it is immaterial
whether the obligation imposed is to keep in repair or to keep premises in all
respects reasonably fit for human habitation. Questions as to the nature of
a lessor's obligations and liabilities have of course arisen where apart from
any Statute there has been a covenant by a lessor to keep in repair. See, e.g..
Makin v. Watkinson (1870-71) L.R. 6 Ex. 25.

On a consideration of the meaning of a lessor's obligation to keep premises
in repair there has been scope for much reasonable competitive argument.
The various authorities (which I do not propose fully to cite) show that
every point of view has been explored. The following are some of the
contentions that have been pressed. On the one hand, it has been said
that it would be wholly unreasonable to make a lessor liable for failing to
remedy a defect of which he was unaware. So the liability to repair is one
that arises only upon notice that there is a need to repair. Where by contract
between lessor and lessee there has been a covenant to keep in repair the
parties must have intended that the obligation of the lessor would only arise
if the lessor had notice of want of repair and a condition of stipulation to
that effect should be imported into the contract. The lessee in occupation
would be in the best position to know of any state of disrepair. On the other
hand, it has been said that if a lessor chooses or is required to covenant to
keep premises in repair then there is an absolute obligation upon him.
Alternatively, even if ordinarily there is no obligation on the part of a lessor
until he is told by his lessee of a need for repair a lessee can only give notice
of any condition of which he is aware and accordingly cannot give notice
of some unknown or unseen condition or latent defect: if, in these circum-
stances, the lessee suffers injury by reason of the premises not being in repair
liability should rest upon the lessor.

At times an argument was pressed to the effect that a lessor ought not to
be held liable upon a covenant because he would have no right of entry
to inspect the condition of the premises and so would be dependent upon
being told if something needed to be done. But by the Housing, Town
Planning Act, 1909 (see section 15(2)), a right upon notice was given in cases
to which the Act applied to enter for the purpose of viewing the state and
condition of the premises. Similar powers were given in later Acts and
by section 32(4) of the 1961 Act a right of entry (in the terms provided) is
given in the case of any lease in which the lessor's repairing covenant is
implied. But even if there is a right of entry for the purpose of viewing
the condition of the premises it has been argued that frequent visits by a
lessor would not be expected or desired and in order to acquire knowledge
of any want of repair a lessor would in fact be dependent largely upon
receiving information from his lessee.

It may here be stated that in the present case the learned Judge held that
the second Appellant was not a tenant. As a consequence of this any
liability of the Respondent to her would have to be established in reliance
upon the provisions of section 4 of the Occupiers Liability Act, 1957.

In the case of Morgan v. Liverpool Corporation [1927] 2 K.B. 131 one
basis of claim was that there had been a failure to perform the statutory
undertaking that the house would be "kept in all respects reasonably fit
" for human habitation ". As I have shown, there was at that date a statutory
right in a landlord to enter for the purposes of inspection. The accident
which gave rise to the claim was that when the upper portion of a window
was being opened one of the cords of the window sash broke with the result
that the top part of the window slipped down and caught and injured the
plaintiff's hand. In the argument on behalf of the plaintiff in the Court of
Appeal it was admitted that the defect was a latent one (of which the
plaintiff did not know and about which accordingly he could not give any



3

notice) but it was contended that (there was a statutory obligation on the
landlord which was different from that contained in an ordinary covenant
and that in the Act (Housing Act, 1925), there were no words requiring that
any notice should be given to the landlord. Furthermore, reliance was
placed on the statutory right of the landlord to enter and inspect. Apart
from any such statutory right the facts of the case showed that there was a
notice posted up in the house containing certain conditions which included
a reservation by the landlord of the right of entering the house at any time
without previous notice in order to view the state of repair. The Court of
Appeal held that the landlord was not liable and that any liability was
conditional upon his having been given notice of any defects even though
they were latent ones and that this result was not affected by the fact that
the landlord had a right to enter in order to inspect. There were divisions
of opinion on certain points which arose: in particular on the point whether
by reason of the breaking of the sash cord the particular dwelling (which
was most limited in size) was rendered unfit for human habitation. But
all three Lords Justices were of the opinion that the claim failed because
the landlord did not have notice and because in such a case as that under
consideration notice was required before the liability of the landlord to repair
existed. Lord Hanworth M.R. said (at p. 141) that it had long been estab-
lished that where there is a covenant on the part of a landlord to keep
premises in repair the tenant must give notice to the landlord of what is
out of repair. He held that notice was required whether or not the landlord
had means of access: he said that the fact that the origin of a covenant was
statutory did not give the covenant any higher authority than one inserted
in a contract by the parties. Atkin L.J. said that in ordinary circumstances
the obligation of a landlord to do repairs does not come into existence until
he has had notice of the defect which his contract to repair requires him to
make good. At p. 151 he said: " I think the power of access that is given,
" extensive though it may be, does not take the case away from the principle
" from which the Courts have inferred the condition that the liability is not
" to arise except on notice. The position is quite a satisfactory one, because
" as soon as the tenant is aware of the defect he must then give notice, and
" if the landlord does not repair it, the landlord will be liable. If in fact the
" tenant is not able to ascertain the defect, there seems to be no reason why
" the landlord should be exposed to what remains still the same injustice of
" being required to repair a defect of which he does not know, which seems
" to me to be the real reason for the rule. This was a case in which notice
" was not given to the landlord. As I have said, it appears to me that, as
" soon as the defect became so known by the fall of the sash, the tenant
" was able to give notice to the landlord and did give notice. In my view
" the landlord then became under a liability to repair in the circumstances
" of this case, because if he did not, the house would be in a state not in
" all respects fit for human habitation ; but as no notice was given, I think the
" landlord was not liable." Lawrence L.J. at p. 153 said: " On the question
" of notice I am in complete agreement with the judgments delivered by
" the Master of the Rolls and Atkin L.J. and have very little to add. In my
" opinion the established rule is that the obligation of the landlord to keep
" the premises in repair is not broken unless notice has been given to him
" of the want of repair, and that mere knowledge is not sufficient to saddle
" the landlord with liability. The foundation of such rule is that the tenant
" in occupation is generally in a far better position to know of any want
" of repair. I am further of opinion that for the reasons stated by Atkin L.J.
" the rule applies to latent as well as to patent defects, and certainly applies
" to the defect which existed in the present case."

The decision in Fisher v. Walters [1926] 2 K.B. 315 (a case where the
defects in the ceiling were latent) which counsel for the landlord had sub-
mitted had gone too far, was not expressly mentioned in the judgments.

If the decision in Morgan's case is correct it would, I think, govern the
present case. Though all three Lords Justices agreed as to the necessity for
notice it did not become necessary for the Court to decide whether such
notice had to be given by the tenant or whether knowledge in the landlord
of a necessity to do repairs or notice from some other source to him of



4

such necessity would also suffice to create a liability in the landlord to do
repairs. There was in that case neither notice, to the landlord of the existence.
of the defective or broken sash-cord nor was there knowledge in the landlord
of the state of affairs.

In Summers v. Salford Corporation [1943] A.C, 283 a case came to this
House in which the tenant did give notice to the landlord's agent that one
sash-cord in the only window of a bedroom had broken. No repair was
effected and about two months later the second sash-cord broke in circum-
stances causing injury to the tenant. The issue that arose was whether there
was a breach by the landlords of the implied undertaking (see section 2(1) of
the Housing Act, 1936), that the house would be kept by the landlord during
the tenancy in all respects fit for human habitation. In his speech Lord Atkin
said, at p. 290: " In the present case the point on which the Court of Appeal
" in Morgans case decided for the defendant does not arise, namely, that
" notice of the lack of repair complained of must be given to the landlord
" before his statutory obligation arises. I can see that different considerations
" may arise in the case of an obligation to repair imposed in the public
" interest, and I think that this question must be left open, and I reserve
" to myself the right to reconsider my former decision if the necessity arises."
Lord Thankerton also expressly kept the same question open. So did Lord
Russell of Killowen. So did Lord Wright. So did Lord Romer.

Then in McCarrick v. Liverpool Corporation [1947] A.C. 219 the question
whether Morgan's case was correctly decided was presented for consideration
in this House. The tenant's -wife had fallen by reason of the defective
condition of two stone steps leading from the kitchen to the back kitchen.
The provisions of the Housing Act, 1936, were applicable. It was held that
the house was not kept in the state required by section 2 of that Act. No
notice of want of repair was given to the landlords. They had the statutory
right of entry to view the state of the premises. The defects would appear
to have been patent. The tenant could therefore be aware of them: so also
could the landlords have been had they exercised their right of entry. It was
argued that Morgan's case was wrongly decided, that the Housing Act, 1936,
contained no provision requiring notice, that the duty imposed on a landlord
by the Act (particularly as he was given a right of entry to inspect) was
absolute and was analogous to that imposed on a factory occupier by the
Factory Acts, and that the effect of the legislation should not be minimised
or neutralised by introducing notions inspired by the old law.

Very important questions of principle were therefore raised. The significant
previous authorities were considered. It was held that the decision in
Morgan's case was correct. Lord Thankerton said that the effect of section
2(1) of the Act of 1936 was to incorporate the prescribed condition in the
contract so that it became an integral part of it and the statutory origin of
•the condition did not differentiate it, in any question of construction, from
any of the conventional stipulations in the contract: it followed, therefore,
that a condition as to notice of the material defect (established by a long line
of authority) fell to be implied. Lord Porter said that whatever view might
have been taken of the section if no previous history lay behind it it had to
be remembered that similar provisions in earlier Acts had been interpreted
as only requiring the landlord to repair after notice: he considered that it
was too late to re-interpret its meaning. That was in 1946. Since then there
have been the Housing Act, 1957, and the Act now being considered. Lord
Simonds' speech was concurred in by Lord Thankerton and by Lord
Macmillan: after reviewing the authorities he clearly held that the provision
which the Statute imported into the contract of tenancy fell to be construed
in the same way as any other term would be construed and that the correct
construction of the provision was that no obligation was imposed on the
landlord unless and until he had notice of a particular defect. Lord Uthwatt
said that it was an implied term (resulting from the comprehensiveness of
the statutory term and the circumstances necessarily involved in the tenancy)
that in a case where the tenant knows the defect and the landlord does not,
the obligation to do a specific act directed to repairing the defect does not
arise until at least the landlord becomes aware of the need for it.

5

The decision in McCarrick's case must have guided landlords and tenants
in their business transactions in the years since 1946. Later legislation has
followed. In my view, it would not be within the intendment of the power
reserved in 1966 now to disturb a decision which as Lord Porter indicated
was given in 1946 " finally to determine " the point first decided in Morgan's
case in 1927 and then left open in Summer's case in 1943. The question does,
however, arise whether the decision of this House in McCarrick's case governs
the present appeal which concerns a latent defect.

In McCarrick's case the defects were there to be seen by the tenant. In the
present case no defect was visible and so there was no visible defect to which
the landlord's attention could be called. In McCarrick's case Lord Simonds
said that the decision in Fisher v. Walters could not stand and his speech
was concurred in by Lord Thankerton and by Lord Macmillan. Lord Porter
said that no question of the latency of the defect came in issue as it did in
Fisher v. Walters and that if it did the decision in that case would require to
be " carefully scrutinized ". Lord Uthwatt remarked that latent defects were
not in question and he expressed no opinion as to their position.

Though there were these reservations, Morgan's case was approved and
Morgan's case must, I think, be regarded as a case in which the defect was
latent even though some defects in a window sash-cord might be visible.
I have cited above a passage from the judgment of Atkin L.J. at p. 151.
At p. 150 he said: " Here is a case of something which arose quite suddenly.
" It is possible that a very careful inspection of the window cords might have
" revealed the state in which they were, but there are many other defects
" which arise quite suddenly, leaks quite suddenly spring up in joints of
" water pipes and gas pipes, and so on, and to say that the landlord is
" responsible for the consequences of those not being in repair in circum-
" stances in which no time could have elapsed between the time when the
" defect first arose and the time when the injury from it occurred, would
" certainly be to impose a very harsh obligation upon a landlord which the
" Courts do not impose except subject to a condition that he must receive
" notice of the defect. To my mind in those circumstances it is clear that,
" if the landlord gives the exclusive occupation to the tenant, the landlord
" does not in fact know, and in this case could not know of the defect." In
my view, these and other parts of the judgment of Atkin L.J. were based on
the reasoning that it is only when defects (though previously latent or
invisible) becomes patent and are made known to the landlord that his ability
to repair arises. Furthermore, it seems to me that both the words of Lord
Simonds and his reasoning in McCarrick's case show that a landlord's obliga-
tion to take action only arises when he has notice of a defect. He will not
have notice if no one knows that there is a defect.

The question does not now arise for express decision as to whether a
landlord's obligation to repair will arise not only when he receives notice
from his tenant of a defect but also if he receives such notice aliunde or if
he has knowledge of it: but I observe that in Griffin v. Fillet [1926] 1 K.B. 17,
where a lessee gave notice that steps to a dwelling-house needed attention
but where the lessee did not know that the steps were in fact actually
dangerous, Wright J. held that a liability rested upon the lessor when sub-
sequently he, though not his lessee, did acquire knowledge that the steps were
actually dangerous. The purpose of a notice is to impart knowledge that
the moment for action under a covenant to repair has or may have arisen.
If a lessor who is under an obligation to keep premises in repair acquires
knowledge that there is a state of disrepair which may be dangerous then
even if such knowledge is not shared by the lessee I would consider that there
arises an obligation on the part of the lessor to take appropriate action.

I pass, then, to consider whether the Respondent had either knowledge or
notice that the ceiling of the bedroom was defective. It is impossible to
consider the facts of the case without entertaining great sympathy with the
Appellants. Those who as tenants of the Respondent in the early part of
1965 were in occupation of the rooms above the rooms of the Appellants
undoubtedly caused disturbance and annoyance for the Appellants. There



6

were frequent parties with music and dancing and there was noise and banging
on the floors: even the windows were caused to rattle and the lights to swing.
The Appellants complained both to the upstairs tenants and to the
Respondent. In his evidence the first Appellant said: " I told him that I
" could not get any sleep at night through banging and jumping upstairs
" and if there was not something done, that the ceiling would eventually fall
" down." Further complaint followed: " I told him if something was not
" done about the all-night parties that my wife would be in bad health and
" so would I and also that probably the ceiling would fall down." Matters
were sufficiently serious as to involve the bringing of proceedings, relating to
the nuisance of noise, in the Croydon County Court. On the giving of specific
undertakings to the Court the action was, in July 1965, withdrawn. Shortly
afterwards those who had been responsible for the nuisance moved away.
That was in 1965. No defects in the ceiling were or became visible. Three
years passed. Then on the 26th November, 1968, the ceiling fell. The
learned Judge considered that it was probable, though perhaps difficult to
prove conclusively, that it was the behaviour of the young people in 1965
rather than old age alone which brought the ceiling down in 1968. But once
the nuisance and the annoyance of the noise had ceased in 1965 there is
nothing to suggest that either lessor or lessee thought that there was need
to take any action in regard to the ceiling. There is no evidence that there
was any apprehension or any nervousness concerning its condition. The
question naturally arises whether by reason of the events to which I have
referred the Respondent had such measure of knowledge or notice as would
require that he should take some action. But it does not appear that anyone
thought that the ceiling had in fact been weakened: the fear had been
expressed that it might or would become affected if the nuisance continued.
The nuisance was then abated. Much as I regret that recovery of damages
by the Appellants is not possible I am unable to say that the decision of
the learned Judge was in any way erroneous.

I would dismiss the appeal.

Lord Diplock

MY LORDS,

When Parliament first decided by section 12 of the Housing of the Working
Classes Act, 1885, to impose upon landlords of dwelling houses for the
working classes obligations as to the physical state of the demised premises,
the method chosen was to provide by statute that a term should be implied
in every contract for letting for habitation a house or part of a house to
which the Act applied. The term originally implied related only to the
physical condition of the house at the commencement of the letting, viz., that
it was at that time in all respects reasonably fit for human habitation. It
did not impose upon the landlord any duty to do any work upon the premises
to make them reasonably fit for human habitation after the commencement
of the letting nor did it give him any right to do so, unless a right of entry
for this purpose was reserved to him by the contract of letting. Any breach
of this implied contractual term occurred once and for all at the commence-
ment of the letting and any right to damages accrued then.

By the Housing, Town Planning etc. Act, 1909, section 15, the landlord's
obligations were extended to the physical state of the premises during the
continuance of the letting. Again the method chosen was to provide by
statute for a further term to be implied in the contract for letting, viz.,
" an undertaking that the house shall, during the holding, be kept by the
" landlord in all respects fit for human habitation."

This implied term did impose upon the landlord an obligation owed to the
tenant to carry out such work upon the premises during the continuance of
the tenancy as might from time to time be needed to keep them reasonably
fit for human habitation. But although created by statute the legal nature
of this obligation was contractual. Its characteristics were the same as those



7

of an obligation created by a repairing covenant in a lease. What the statute
was providing was that any contract for the letting of premises to which
it applied should be read and given effect to as if it contained an express
covenant by the landlord to keep the premises in such a state of repair as
would make them reasonably fit for human habitation. The landlord's
obligation lies in the field of contract not of tort. His duty is not one of
reasonable care to avoid injury to the tenant. It is a duty to perform his
contract.

Provisions in substantially the same form were re-enacted in the Housing
Acts of 1925 and 1936. Their legal effect was the subject of consideration
by the Divisional Court in Fisher v. Walters ([1926] 2 K.B. 315), by the Court
of Appeal in Morgan v. Liverpool Corporation ([1927] 2 K.B. 131) and
finally by this House in McCarrick v. Liverpool Corporation ([1947] A.C. 219)
where the decision in Morgan's case, and in particular the reasoning of
Atkin L.J. in that case were approved. I shall be returning to these cases
later. At this stage it is sufficient to say that as I read Morgan's and
McCarrick's cases their ratio decidendi was based upon (a) the contractual
nature of the landlord's obligation resulting from the statutory requirement
that it should be implied as a term in the contract of letting and (b) the legal
characteristics of a repairing covenant by a landlord in a lease or tenancy
agreement.

My Lords, section 32(1) of the Housing Act, 1961, which your Lordships
have now to construe is not in the same terms as the earlier legislation. But
it has the same essential characteristics: (a) that the landlord's obligation
results from a statutory requirement that it should be applied as a term in
the contract of letting and (b) that the term to be implied has the legal
characteristic of a repairing covenant by a landlord in a lease. I can see
nothing in section 32 or 33 of the Housing Act, 1961, which alters either
of these essential characteristics of the obligation imposed upon the landlord
by section 32(1). Reliance has been placed by the Appellant upon section
33(7) which avoids any covenant or agreement "so far as it purports to
"exclude or limit the obligations of the lessor" under section 32(1). But
this merely refers one back to section 32(1) to see what are the obligations
of the lessor thereunder.

At the root of any analysis of the landlord's obligations under a repairing
covenant lies the initial question whether it is an undertaking by the landlord
to prevent the premises ever getting out of repair during the continuance
of the tenancy or whether it is an undertaking to do work of repair upon
the premises from time to time as and when they have become out of repair.
If it is the former the breach occurs as soon as the premises are in fact out
of repair and continues until he has put them back into repair. If it is the
latter, there is involved the subsidiary question as to the time at which the
landlord's obligation to do the necessary work of repair first arises. Until
that time arrives there can be no breach of the obligation: nor can there
be any breach thereafter if the landlord then carries out the necessary work
of repair with reasonable expedition.

In all the cases on this subject decided before Fisher v. Walters to which
attention has been directed in the argument, starting with Makin v. Watkinson
((1870) L.R.6 Ex.25) and ending with Griffin v. Fillet ([1926] 1 K.B. 17), it
has been assumed, even though not expressly stated, that a landlord's repair-
ing covenant is of the latter kind, viz., an undertaking to do work of repair
upon the premises from time to time if and when they have become out of
repair. This appears most clearly in a passage in the judgment of Wright J.
in Griffin v. Fillet upi sup at p. 22) where he says: " the lessor in my
" judgment was not liable for breach of covenant until he had been able to
" ascertain the nature of the repairs required. This he knew by 8th April,
" and I think he acted at his peril if he did not at once remedy the non-repair,
" either by temporary measures, if the permanent repairs could not be
" immediately effected, or by doing the permanent repairs, if this was
" practicable. If he did not do this he committed a breach of covenant ".

The cases to which I have referred were concerned with the time at which
the obligation of the landlord to start works of repair arose. I do not




8

propose to deal with them individually. They do not show a continuing
logical development in the law nor any great consistency in reasoning. But
by 1926 the result of half-a-century of judicial decision was that it was well-
established that, at any rate where the state of disrepair was known to the
tenant, the landlord's obligation to start carrying out any works of repair
did not arise until he had information about the existence of a defect in the
premises such as would put a reasonable man upon enquiry as to whether
works of repair were needed.

Though this at least was well-established by 1926, two matters remained
open to doubt. The first is whether, notwithstanding that the landlord has
previous information from some other source about the existence of a defect,
his obligation to start carrying out works of repair arises until he has been
given notice of the defect by the tenant. It is unnecessary to decide this
in the instant appeal, because the only information relied upon is that which
was given to the landlord by the tenant. But the second is a much broader
question. It is whether the rule that the landlord must have information of
the existence of a defect in the premises before any obligation on his part
to start carrying out works of- repair arises, applies at all when the defect
is latent, i.e., is of such a nature that the tenant did not know and could not
have discovered by reasonable examination that the premises were out of
repair. In such a case is the landlord under an obligation to start carrying
out works of repair as soon as the premises are in fact out of repair even
though he has no such information as would put a reasonable man upon
enquiry as to whether works of repair are needed?

This question arose in the Divisional Court in Fisher v. Walters ([1926]
2 K.B. 315). It was a case of latent defect—a falling ceiling, as in the instant
appeal. The tenant relied upon the undertaking of the landlord implied
under section 15 of the Housing, Town Planning etc. Act, 1909, that the
house should be kept by the landlord in all respects fit for human habitation.
Finlay J. decided it in favour of the tenant on the broad ground that irrespec-
tive of whether the defect were patent or latent the common law rule that
the landlord must have information about the existence of the defect did
not apply to the covenant implied by statute. Mackinnon J. held that the
common law rule did not apply to latent defects, but left it open whether
it would apply to patent defects.

In the same year a similar question came before the Court of Appeal in
Morgan v. Liverpool Corporation ([1927] 2 K.B. 13). It was a case of a
broken window cord which was held by the trial judge to be a latent defect.
All three members of the Court of Appeal held that the implied covenant
under the Housing Act, 1925, was to be treated as creating a contractual
obligation on the landlord to keep the premises in repair and that the land-
lord's obligation to start to carry out works of repair did not arise until he had
notice of the defect. While Lord Hanworth M.R. expressed doubt as to
whether the defect was truly latent, Atkin and Lawrence L.J.J. decided the
case upon the basis that the defect was latent and held expressly that the
common law rule applied to all defects, latent as well as patent.

Finally, there is the decision of your Lordships' House in McCarrick v.
Liverpool Corporation ([1947] A.C. 219). Although the defect in that case
was patent the appeal was brought to this House, as Lord Simonds said (at
p. 227), to test the correctness of the decision of the Court of Appeal in
Morgan's case. Lord Simonds' speech was concurred in by Lords Thankerton
and Macmillan. He approved expressly the decision in Morgan's case and
in particular the judgment of Atkin L.J. He drew no distinction between
latent and patent defects and said that the decision in Fisher v. Walters
(ubi sup) was inconsistent with higher authority and could not stand. He
summarised the law as follows: —" I conclude, then, that the provision
" imported by statute into the contractual tenancy must be construed in the
" same way as any other term of the tenancy and, so construed, does not
" impose any obligation on the landlord unless and until he has notice of
" the defect which renders the dwelling not 'reasonably fit for human
" 'habitation'. That is the only question which your Lordships have to



9

" decide and I do not think it desirable or necessary to consider what may
" constitute such notice."

Lord Porter and Lord Uthwatt delivered separate speeches. Although
Lord Porter contented himself with expressing the view that Fisher v. Walters
would have required to be carefully scrutinised if the latency of the defect
had been in issue in McCarrick's case he concluded by expressing his agree-
ment with the reasoning and decision of Atkin L.J. in Morgan's case which
was on the basis that the defect there was latent. Lord Uthwatt simply said
that he expressed no opinion as to latent defects.

My Lords, unless your Lordships are prepared to over-rule Morgan v.
Liverpool Corporation despite its express approval by this House in McCarrick
v. Liverpool Corporation, and to hold that Lord Simonds' statement of the
law that I have cited was wrong, I think you are compelled to hold that
this appeal must fail unless the tenant can show .that before the ceiling fell
the landlord had information about the existence of a defect in the ceiling
such as would put him on enquiry as to whether works of repair to it were
needed.

While it would be open to your Lordships to do so, this is not I think a
suitable case in which to exercise the recently asserted power of this House
to refuse to follow one of its own previous decisions. An examination of the
reasoning in the judgments in the cases on this subject during the last hundred
years suggests that the law might easily have developed on different lines
from those which it in fact followed. But, for my part, I am not persuaded
that this development was clearly wrong or leads to results which are clearly
unjust. McCarrick's case has stood for 25 years ; Morgan's case for 45 years.
Landlords and tenants and their insurers have entered into leases and con-
tracts and Parliament has passed statutes on the basis that the law is as stated
in those judgments. This House would not be justified in altering it now.

The only remaining question in this appeal is whether what the tenant
said to the landlord in 1965 at a time when the tenants of the flat above were
still holding parties which involved stamping on the ceiling, three and a half
years before the ceiling fell, would have put a reasonable landlord upon
enquiry as to whether works of repair were needed at that time. Bristow J.,
who heard the evidence of the plaintiffs, found that the complaints which
the tenant then made were not to the effect that the structure of the ceiling
might already be defective, but that if the stamping continued it would one
day bring down the ceiling while it was going on. This finding was amply
supported by the evidence and was, I think, clearly right.

My Lords, I would dismiss this appeal and in doing so express my entire
concurrence with the judgment of Bristow J.

Lord Simon of Glaisdale

MY LORDS,

I have had the advantage of reading in advance the speech prepared by
my noble and learned friend, Lord Diplock. I agree with it; and I would
therefore dismiss the appeal.

Lord Cross of Chelsea

MY LORDS,

For the reasons given by my noble and learned friends Lord Morris of
Borth-y-Gest and Lord Diplock in their speeches which I have had the
opportunity of reading I would dismiss this appeal.

(J02633) 80 2/73 StS

Lord Reid

Lord Morris of
Borth-y-Gest

Lord Diplock

Lord Simon of
Glaisdale

Lord Cross of
Chelsea

HOUSE OF LORDS

O'BRIEN (A.P.)
and ANOTHER (A.P.)

v

ROBINSON

(No. 2)

LEGAL AID COSTS
Lord Reid

MY LORDS,

For the reasons given by my noble and learned friend, Lord Diplock, I
would allow the Respondents to recover their costs from the Legal Aid
Fund.

Lord Morris of Borth-y-Gest

MY LORDS,

I am of the opinion, for the reasons given by my noble and learned friend,
Lord Diplock, that the Respondent should recover from the Legal Aid
Fund the costs incurred by him in resisting this appeal.

Lord Diplock

MY LORDS,

This appeal came direct from the High Court to your Lordships' House
pursuant to section 12 of the Administration of Justice Act, 1969, upon a
certificate of the Judge that a point of law of general public importance
was involved and that that point of law was one in which the Judge was
bound by a decision of the House of Lords in previous proceedings and
was fully considered in the judgments given by the House of Lords in those
previous proceedings.

In the High Court none of the parties was legally aided and the plaintiffs'
action was dismissed with costs. For the proceedings on the direct appeal
to this House the plaintiffs/Appellants were granted legal aid. The
defendant/Respondent was not. His liability for the costs incurred by him
to his own solicitors in successfully resisting the appeal was covered by
insurance.

The financial position of the unsuccessful appellants is such that no order
for payment of costs could properly be made against either of them per-
sonally. Application has accordingly been made by the Respondent for an
order under section 1(1) and (2) of the Legal Aid Act 1964, that the costs
incurred by him in the appeal should be paid out of the Legal Aid Fund.

The application was resisted by the Law Society upon the same grounds
as those advanced in a similar application in Davies (A.P.) v. Taylor where
the successful Respondent was also covered by insurance in respect of his
costs. I would adopt, without repeating, the reasons for rejecting the
submissions of the Law Society which are to be found in the speech of my
noble and learned friend, Lord Cross of Chelsea, in that appeal. So we are
left with the broad question whether we are " satisfied that it is just and
equitable in all the circumstances " to make the order.

The only relevant circumstances which distinguish the present appeal from
that in Davies (A.P.) v. Taylor is that in the latter the unsuccessful plaintiff
in the action had appealed successively to the Court of Appeal and to this
House; each time unsuccessfully, whereas in the present appeal there was
but one appeal direct from the High Court to this House.

2

My Lords, as the judge had certified and as this House has held, the
law was well settled adversely to the Appellants' claim by a decision of the
Court of Appeal which had been approved by your Lordships' House.
Neither the Respondent himself nor his insurers, as a company engaged in
the business of insuring property owners against liability to third parties,
had any business interest in altering it. They were content with the law
as it had previously been laid down and as it would remain unless your
Lordships could be persuaded to hold that the reasoning of a previous
decision of this House was wrong.

The point of law involved was one of general public importance. The
Judge had so certified before a legal aid certificate was granted to the
Appellants. No criticism can be made of the Legal Aid authorities for
granting it. But in the result the Respondent's insurers have been put to
the expense of successfully resisting an attempt to alter the law as previously
laid down by your Lordships' House. In these circumstances, I am satisfied
that it is just and equitable that they should recover their costs of doing so
from the Legal Aid Fund.

Lord Simon of Glaisdale

MY LORDS,

I have had the advantage of reading in draft the speech prepared by my
noble and learned friend, Lord Diplock. I agree with it and with the order
which he in consequence proposes.

Lord Cross of Chelsea

MY LORDS,

For the reasons given by my noble and learned friend, Lord Diplock, I
am of opinion that the Respondent should recover from the Legal Aid Fund
the costs incurred by him in resisting this appeal.

303623 Dd 197094 50 3/73 St. S.