03/05/2016
Dodd v Raebarn Estates Ltd and others [2016] EWHC 262 (QB)
On Christmas Day 2007 Mr Dodd, an Australian citizen, was on his honeymoon. He and his wife were the guests of the tenant of a flat in a building in Notting Hill. While leaving the flat to go out, Paul Dodd fell down the stairs from the first floor, suffered a major brain injury and died two years later.
His widow made a claim under the Fatal Accidents Act 1976 and on behalf of her late husband's estate under the Law Reform (Miscellaneous Provisions) Act 1934. One of Mrs Dodd’s arguments was that the defendant was liable under the Defective Premises Act (DPA) 1972 for breach of repair and maintenance because no handrail had been installed on the stairs.
Surprisingly, the claim failed in both the County Court and the High Court.
Here’s why.
The facts of Dodd v Raebarn Estates Ltd and others [2016] EWHC 262 (QB)
The three defendants, known collectively as Raebarn were freeholders of the property in which Mr Dodd’s had his fatal fall. The ground floor and basement of the building were retail premises and the first and second floors contained residential flats.
Raebarn was a commercial landlord, who neither developed residential properties, nor had residential tenants. In 1987 Raebarn granted a headlease for 125 years of the upper floors of the building to a developer, which intended to create or update residential flats.
On or around 1988, the developer had converted the first and second floors and installed a new staircase with Raebarn’s consent. Mrs Dodd alleged that the defects in the staircase (including not installing a handrail) resulted from these works, which she claimed breached the terms of the relevant planning permission and the building regulations.
The High Court agreed that it seemed highly likely that the 'defects' were the product of the developer’s rebuilding. The defects were present when Mr Dodd had his accident and the staircase had been in that state for at least 12 years.
The DPA 1972 and its relation to the facts of the case
The DPA 1972 provides that:
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A landlord owes all persons who might logically be expected to be affected by defects in the state of a premises a duty to take such care as is judicious 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'.
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The duty arises where the landlord is under an obligation to repair or maintain the premises. If the landlord has express or implied consent to enter the premises to carry out maintenance or repair, they are under the obligation.
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A 'relevant defect' is 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 they had had notice of the defect, have constituted a failure by them to carry out their obligation to the tenant for the maintenance or repair of the premises.
His Honour Judge Richard Parkes QC held that there was no question that Raebarn owed a duty to the Dodds.
However, as in the summary judgment, His Honour Judge Richard Parkes QC decided that the developer’s failure to install a handrail did not constitute a 'relevant defect' under DPA 1972.
“My conclusion, reached not without regret, is that the claimant cannot succeed in her claim under the DPA because D4's failure to install a handrail and its apparent non-compliance with Building Regulations did not constitute relevant defects within the meaning of s4(3). It seems to me obvious that the lack of a handrail was potentially dangerous, and of course that is why a handrail was required by Building Regulations. But authority constrains me to hold that potential dangerousness is not the test under the DPA.
My conclusion might have been different had there been any evidence that the handrail had been removed after D4's reconstruction, between 1988 and 1995, because in that event there would have been an argument, along the lines of Hannon, that its removal gave rise to a relevant defect. But that scenario seems to be wholly speculative and fanciful, because the probability, as the claimant's pleaded case suggests, is that the non-compliance with planning permission and Building Regulations dated from the reconstruction. There is simply no evidence that a handrail was installed and later removed.
Given that there was, in my judgment, no relevant defect, the question of knowledge within s4(2) does not arise.”
The Decision’s Ramifications
One of the reasons the High Court interpreted the DPA 1972 strictly, was because doing otherwise may 'operate to impose a substantial burden on a landlord to put right matters which are under the control of the tenant'.
The key message is that although a premises may be dangerous; it can still be in ‘repair’ as defined in the DPA 1972. And if this is the case, no liability can arise under the Act.
Fisher Scoggins Waters are a London based law firm who are experts in construction, manufacturing and engineering matters. If you would like to discuss liability under the Defective Premises Act 1972, please phone us on 0207 993 6960.