O'Brien (A.P.) and Another (A.P.) v Robinson
| Jurisdiction | UK Non-devolved |
| Judge | Lord Reid,Lord Morris of Borth-y-Gest,Lord Diplock,Lord Simon of Glaisdale,Lord Cross of Chelsea |
| Judgment Date | 21 March 1973 |
| Judgment citation (vLex) | [1973] UKHL J0219-1 |
| Docket Number | Parliamentary Archives, HL/PO/JU/4/3/1245 |
| Court | House of Lords |
| Date | 19 February 1973 |
[1973] UKHL J0219-1
HOUSE OF LORDS
Lord Reid
Lord Morris of Borth-y-Gest
Lord Diplock
Lord Simon of Glaisdale
Lord Cross of Chelsea
Parliamentary Archives, HL/PO/JU/4/3/1245
My Lords,
For the reasons given by my noble and learned Mend, Lord Diplock, I would dismiss this appeal.
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 obligation 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).
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 circumstances, 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 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 established 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...
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