Defective Premises Act 1972 – No Strict Liability

22/04/2016

The recent case of Lafferty v Newark and Sherwood District Council [2016] EWHC 320 (QB), considered whether s.4(4) of the Defective Premises Act 1972 imposes a form of strict liability.

The facts

Ms L, who was hanging out washing in her garden, fell into a hole which suddenly opened up in her garden.  The hole was caused by a fractured underground drainage pipe which had led to soil erosion.  She sustained injuries that would have been assessed at £12,000 of damages, subject to liability.

The pipe fell under the council’s repairing obligations. The Judge in the first instance found “that there were no external signs or warnings of this potential problem. In short, no reasonable inspection of the garden could have discovered it”.  Therefore, the defect was classified as a ‘latent defect’.

Ms L argued that s.4(4) of the Defective Premises Act, amounted to a strict liability on the Council, meaning that she only had to show damage had occurred and it made no difference that the defect could not have been found on reasonable inspection.

To understand the decision, it is worth detailing out s. 4 in full.

‘4. 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; …

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

In the first instance the Judge dismissed the argument that s. 4(4) created a strict liability.  Ms L appealed to the High Court.

The legal arguments

Ms L argued that the point of s. 4(4) is to prevent landlords from hiding behind the fact that they had no knowledge of any defects.

According to Jay J, the key question to be decided was ‘whether the core wording in section 4(4) served to extend the Respondent's liability in the absence of fault, or served merely to confer a concomitant or equivalent obligation on the Respondent (consonant with the s. 4(1) duty) which remained subject to the constraints set out within s. 4(2), namely the requirement that an element of fault be proven’.

The Judge distinguished the case of Sykes v Harry [2001] QB 1014, where ‘the Court of Appeal held that liability under section 4(1) of the DPA 1972 did not require proof that the landlord had actual or constructive notice of the actual defect which caused injury, but rather that in all the circumstances of the case he had failed to exercise reasonable care in relation to the safety of his tenant as regards a relevant defect about which he ought to have known.’  Justice J noted that this case was a decision on sub-section 3 of the Defective Premises Act rather than sub-section 4, which the Appellant was relying on.

The Decision

In his decision, Jay J held that s. 4(4) could apply in two situations:

1.    where the relevant defect falls outside the scope of s.4(1); or

2.    where the defect does fall under sub-section 1 but sub-section 2 cannot be satisfied by the facts of the case.

The Judge concluded that this case fell under the second category.

He then went on to conclude that:

‘I agree with Mr Godfrey that the purpose of section 4(4) is not to create a strict liability but to extend the application of section 4(1) to relevant defects which are outwith its scope (the first of my foregoing situations), and therefore to bring them within the scope of the section as a whole. The purpose of section 4(4) is not to confer an additional or alternative route to recovery where the claim under section 4(1) fails on its facts because section 4(2) is unsatisfied.’

Consequences for the industry

The decision clarifies that there is no strict liability under the Defective Premises Act 1972.  Therefore, although there is an obligation for those subject to the Act to ensure others are reasonably safe from injury caused by defect, if a reasonable inspection could not have picked up a particular defect, then there is no liability.