Alker v Collingwood Housing Association
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lord Justice Carnwath,Lord Justice Moore-Bick |
| Judgment Date | 07 February 2007 |
| Neutral Citation | [2007] EWCA Civ 343 |
| Docket Number | Case No: B3/2006/1442 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 February 2007 |
[2007] EWCA Civ 343
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER COUNTY COURT
(MR RECORDER CLAYTON QC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws
Lord Justice Carnwath and
Lord Justice Moore-Bick
Case No: B3/2006/1442
MR A UNDERWOOD QC and MR M LEMMY (instructed by Messrs Keoghs) appeared on behalf of the Appellant.
MR R HARTLEY and MS R PEARSON (instructed by Messrs Linder Myers) appeared on behalf of the Respondent.
This is the defendant's appeal against the decision of Mr Recorder Clayton QC handed down in the Manchester County Court on 7 June 2006 by which he gave judgment in favour of the respondent claimant with damages to be assessed for injury suffered by her in an accident which occurred on 2 July 2001. The appellant is the respondent's landlord. The respondent was injured in circumstances which may be described very shortly. The property in Stockport where she lived has a front door with a ribbed glass panel. On the occasion in question the respondent was going into the property with her two and-a-half year old son. On the Recorder's finding (paragraph 42) there was a dispute about how exactly the accident happened. The little boy had tried to open the door but was not strong enough so the respondent put her left hand to the glass and pushed. The glass broke. Her left arm went through the pane. She was very badly cut. The Recorder described her injuries as “horrific and traumatic”. Permission to appeal was granted by the Recorder himself.
A number of issues were canvassed before the Recorder at trial. Only one remains for consideration on this appeal. The respondent's counsel had in opening the case abandoned (see judgment paragraph 30) any reliance on a common law duty of care. The judge found that the appellant was not on actual notice of any disrepair to the door or glass panel so there was no viable claim for breach of the implied repairing obligation arising under section 11 of the Landlord and Tenant Act 1985 (see judgment paragraphs 59 and 66). There remained the respondent's claim for damages for breach of the statutory duty arising under section 4 of the Defective Premises Act 1972 (“the Act”). The Recorder found this case to have been made out and as I have said gave judgment for the respondent with damages to be assessed.
Before coming to the statute I should notice these features of the case: the glass panel in the door was not safety glass but ordinary annealed glass. Before the accident the glass was not broken nor, as the Recorder put it (paragraph 44), was it per se in disrepair. The property had, as a matter of probability, been constructed in accordance with the applicable building regulations (judgment paragraph 64). However, the use of ordinary annealed glass in doors presents a safety hazard and that has been understood since at least 1963 (paragraphs 62 and 76).
In addition by force of clause 3.12 of the tenancy agreement the respondent was obliged to grant entry to the appellant's workers to inspect and carry out repairs and improvements. That is significant in the light of the structure of section 4 of the Act to which I will shortly come. The repairing covenant itself was also important. It is contained in clause 3.1 and provides:
“We must keep your home in good condition. We will repair and maintain:
• the structure and exterior of the building – roofs, walls, floors, ceilings, window frames, external doors, drains, gutters, outside pipes.
• kitchens and bathroom fixtures – basins, sinks, toilets, baths.
• electrical wiring and gas and water pipes.
• heating equipment and water heating equipment.
• any communal areas around your home – stairs, lifts, landings, lighting, entrance halls, paving, shared gardens, parking areas and rubbish chutes.”
In order to understand the Recorder's reasoning and the arguments on the appeal I should next set out the material terms of the Act:
“Section 4
(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 of 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.”
I have omitted that part of section 4(3) which defines the expression “the material time”. Nothing in this case turns on that.
It can be seen that the duty under section 4(1) arises if and only if the following conditions are fulfilled:
1. The landlord owes an obligation to the tenant under the tenancy for the maintenance or repair of the premises – section 4(1).
2. The landlord knew or ought to have known of whatever is the “relevant defect”– section 4(2).
However those requirements are qualified by section 4(4): the landlord is treated as under a section 4(1) duty if he can exercise a right enjoyed by him to enter the premises in order to carry out works of maintenance or repair. The duty itself, however, is only to take reasonable care to protect potentially affected persons from injury or damage caused by a “relevant defect”. That is defined by section 4(3). I repeat the definition for convenience:
“… a defect in the state of the premises … 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—that is a failure by him to carry out his obligation for maintenance or repair”.
Here it is common ground that the conditions are met. The appellant owed an obligation for maintenance or repair (clause 3.1 of the Tenancy Agreement). Section 4(2) (the second condition) was not fulfilled because the appellant had no notice of the putative defect, but that omission is repaired by the application of section 4(4) which, as I have said, qualifies the conditions. The appellant had a right of entry for the purpose of repair or maintenance by force of clause 3.12. Accordingly, the only question in the appeal is whether the state of the glass panel constituted a “relevant defect”. The appellant, by Mr Underwood QC, said that it did not because the glass panel was in no need of repair or maintenance. The respondent, by Mr Hartley, says that it did because it was dangerous. That antithesis articulates in essence the short and important point on which the appeal turns.
The Recorder essentially adopted the approach urged by the respondent. He said this at paragraph 74:
“The question of fact is whether the replacement of the door or glass panel was something which ought to have been done 'in the interests of all persons who might be expected to be affected by the defect' or 'to remedy any defects which might expose visitors to the premises (or the tenant herself) to the risk of injury.' In other words, did it pose a reasonably foreseeable risk of injury?”
In arriving at this formulation the Recorder purported to draw on the reasoning of this court in McAuley v Bristol City Council [1992] QB 134. That case concerned a garden step which was in disrepair and was unstable. The plaintiff tenant fell on it and broke her ankle. In her subsequent claim she relied on section 4 of the Act.
The court's lengthy reasoning was much taken up with the question whether the landlord had impliedly reserved a right to carry out repairs to remove a risk of injury. In the circumstances the court held that such a right was reserved. Ralph Gibson LJ said this ( McAuley v Bristol City Council [1991], [1992] QB 134 para 47):
“I think that, to give business efficacy to the agreement, as Somervell LJ put it in Mint v Good, a right should be implied in the council to carry out repairs for the removal of that risk of injury. A reasonable tenant could not sensibly object to such a right. If the council became aware of a dangerous defect in the steps of a steep garden, as in this case, and asked the tenant for access to repair it, in the interest of all persons who might be expected to be affected by the...
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