McAuley v Bristol City Council

JurisdictionEngland & Wales
JudgeLORD JUSTICE RALPH GIBSON,LORD JUSTICE NEILL
Judgment Date25 June 1991
Judgment citation (vLex)[1991] EWCA Civ J0625-7
CourtCourt of Appeal (Civil Division)
Date25 June 1991
Docket Number91/0659

[1991] EWCA Civ J0625-7

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE BRISTOL COUNTY COURT

(MISS ASSISTANT RECORDER SULLIVAN)

Royal Courts of Justice.

Before:

Lord Justice Neill

Lord Justice Ralph Gibson

91/0659

Michelle Lorraine McAuley
(Plaintiff) Respondent
and
The City Council of Bristol
(Defendant) Appellant

MR. D. O'MAHONEY (instructed by Messrs. Cooke, Painter & Co. of Bristol) appeared on behalf of the (Plaintiff) Respondent.

MR. D. FLETCHER (instructed by Mr. Dudley William Pearce Lewis, City Clerk) appeared on behalf of the (Defendant) Appellant.

LORD JUSTICE RALPH GIBSON
1

This is an appeal by the defendants, the City Council of Bristol, from the decision of the assistant recorder, Miss Linda Sullivan, of 6th July 1990 given at Bristol County Court, whereby the plaintiff, Mrs. McAuley, recovered damages for personal injuries in the agreed sum of £4,500 with interest of £270.

2

Mrs. McAuley, then aged 20, broke her ankle on 31st October 1984 when she fell in the back garden of the house where she lives with her husband as joint tenants of the council. The ground of liability of the council which the recorder held to have been proved was breach of the duty of care imposed by section 4 of the Defective Premises Act 1972.

3

The council now appeal and contend that, upon the proper construction of the terms of the tenancy agreement and of the statutory provisions, they were under no relevant duty of care to the plaintiff. If they fail on that point they contend that, having regard to the course of the proceedings, they should not have been ordered to pay the plaintiff's costs.

4

Mr. and Mrs. McAuley in January 1984 became tenants of No. 8 Hinchcliffe Road in Bristol, which is a house owned by the City Council. Behind the house, there is a garden which rises steeply with two flights of steps and a landing between them, which run up the centre of the garden away from the house.

5

Mr. and Mrs. McAuley discovered, on moving into the house, that a step at or near the top of the garden—it has been called step No. 11—was unstable: the step consisted of concrete set in the earth; it was not fixed to the next step; and it moved under a person's weight. Mr. McAuley, according to the findings of the recorder, complained to the repairs clerk of the council at the West Town Lane housing office in March 1984 about the state of the step but his complaint was made in such a way that the clerk, Mr. Moriarty, understood that the complaint was, in substance, about a "garden path" and not a "set of steps" and therefore not the responsibility of the council. Nothing, therefore, was then done by the council and, it seems, nothing was done by Mr. and Mrs. McAuley.

6

On 31st October 1984 Mrs. McAuley was hanging out washing on a line at the top of the garden steps. She knew of the instability of the step. The recorder held that she was standing on step No. 11, which rocked forward under her weight, so that she lost her footing and fell. The recorder rejected the defendant's allegations that, if the accident happened as she described, she had been guilty of contributory negligence.

7

Any liability of the council to the plaintiff must, as was recognised from the outset by the plaintiff's advisers, be based upon the terms of the tenancy agreement. The tenancy was a four-weekly tenancy. The plaintiff and her husband, as tenants, were given a tenant's handbook of some 34 pages which contained at page 31 the conditions of tenancy. The handbook also contained an explanation of the responsibilities of the council as landlord and the obligations of tenants with much useful advice and information. The handbook is, in my respectful opinion, an admirable document which demonstrates not only the care which the council has taken to discharge its obligations as a housing authority but also the desire of the council to carry those obligations out as well and as fully as possible.

8

In addition to the usual terms as to notice, the payment of rent, user, transfer and sub-letting, etc., the terms relevant to the issue in this appeal are as follows. Clause 6:

9

"The tenant shall:

  • (a) Keep the premises, including gardens, in a clean and orderly condition, and shall pay to the Council the cost of any special cleansing rendered necessary by his failure to comply with this condition.

  • (b) Maintain the interior of the premises in a reasonable decorative condition. (The tenant is advised to consult officers of the Housing Department if he is in doubt as to the most suitable materials to use.)

  • (c) Give the Council's agents and workmen all reasonable facilities for entering upon the premises at all reasonable hours for any purpose which may from time to time be required by the Council.

  • (d) Pay to the Council the cost of making good all damage to the premises (other than that resulting from ordinary fair wear and tear) including broken windows, on the fixtures and fittings therein, and of clearing stoppages in drains due to carelessness."

10

There was nothing in the conditions of tenancy with reference to repairs by either side save those set out above. In the handbook, under the heading "Duties of the City Council", after reference to security of tenure, there appears on page 9 :

"Repairs—the Council under takes to maintain the structure and exterior of the property in good repair, not including any internal decorations or repairs attributable to the tenant's misuse."

11

Reference must be made to the course of the proceedings because of the appeal on costs. The action began by plaint on 3rd April 1987. The particulars of claim alleged that, by the tenancy agreement, the council undertook to keep the premises, including the concrete steps, in good repair or, in the alternative, that such a duty was owed at common law. The breach of duty alleged was failing to repair the step after notice of the defect given by Mr. McAuley's complaint. The defendants disputed the alleged duties and the making of the complaint. In May 1987 the defendants asked for particulars of any implied term or statutory provision relied upon by the plaintiff. The answer, settled by counsel and dated 10th September 1987 was to the effect that the term by which the council undertook to repair the premises, including the steps in the garden, was an express term, namely that at page 9 of the handbook which is set out above, and, in the alternative, that it was to be implied by operation of law.

12

In April 1990 those advising the council, who were well aware of the possible relevance of section 4 of the Defective Premises Act 1972 to this case, tried again: a further request invited the plaintiff to state whether reliance was placed upon a term implied by statute and, if yes, to identify it. The reply on 25th May 1990 made no mention of the 1972 Act: it asserted that the term, i.e. as to the council's repairing obligation, was to be implied at common law or, in the alternative, pursuant to section 32 of the Housing Act 1961. The provisions of that section, headed "Repairing obligations in short leases of dwelling-houses" are now contained in section 11 of the Landlord and Tenant Act 1985, which is a consolidation Act.

13

At the trial there was application for leave to amend the claim to add to the particulars a claim the following new paragraph 5A:

"The concrete steps and path were part of the premises (within the meaning of section 4 of the Defective Premises Act 1972). Further, by virtue of clause 8(c) of the conditions of tenancy the defendants had a right to enter on to the premises to carry out maintenance or repair to the premises. The defendants owed the plaintiff a duty of care by virtue of section 4(1) and (4) of the 1972 Act to take reasonable steps to see that the premises were reasonably safe for the plaintiff. In breach of this duty the defendants failed to repair or maintain the said steps in spite of being warned of the dangerous condition of the same."

14

The reference to clause 8(c) was to a print of the conditions of tenancy attached to the original offer of transfer of home made by the council to the plaintiff and her husband. It is the same clause as clause 6(c) in the handbook to which I have referred above.

15

At the trial, after reference to numerous authorities including Barrett v. Lunova Limited [1989] 1 All E.R. 251; Sleafer v. Lambeth B.C. [1960] 1 Q.B. 43; Brown v. Liverpool Corporation [1969] 3 All E.R. 1345; Duke of Westminster v. Guild [1985] Q.B. 668; Hopwood v. Cannock Chase D.C. [1975] 1 W.L.R. 373 and to Liverpool C.C. v. Irwin [1977] A.C. 239, counsel for the plaintiff acknowledged that the plaintiff could not rely upon section 32 of the 1961 Act. That concession was made, as I understand it, upon the basis that, under section 32, the obligation imposed upon the landlord is to keep in repair the structure and exterior of the dwelling-house, including drains, gutters and external pipes, and that that obligation could not be extended to a step in the back garden.

16

It was submitted for the plaintiff that a contractual obligation to repair the premises let, including the garden step, should be implied in law. The recorder rejected that submission and the plaintiff does not by cross-notice seek to rely upon the submission in this court. It is to be noted that what was rejected was an implied obligation in the council to repair and not, by contrast, an implied right to repair.

17

As to section 4 of the 1972 Act, upon which the recorder held that the plaintiff was entitled to succeed, I will, before stating the reasoning by which the recorder reached her conclusion, set out the relevant parts of the section.

18

The section, which was enacted...

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7 cases
  • Alker v Collingwood Housing Association
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 7 February 2007
    ...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 h......
  • Dunn and another v Bradford Metropolitan District Council
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 31 July 2002
    ...which I have already set out earlier in this judgment, I referred to the observations of Lord Justice Ralph Gibson in McAuley v Bristol City Council [1992] 1 QB 134 at page 145D: "'There is, I think, no warrant for a wide construction of the words of section 4. They apply to all landlords......
  • Lee v Leeds City Council; Ratcliffe and Others v Sandwell Metropolitan Borough Council
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 21 January 2002
    ...of the garden is reasonably safe from personal injury caused by such a defect arising from lack of repair or maintenance – see McAuley v Bristol City Council [1992] 1 QB 134. Prejudice to health 17 The obligations which may be imposed on a landlord in relation to property let for occupation......
  • Nili Sternbaum v Bal Binder Dhesi
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 18 March 2016
    ...My post hearing research suggests that determination of this point would require a far closer examination of decisions such as McCauley v Bristol City Council [1992] QB 134 referred to in Alker but not put before us. The analyses of section 4 in Sykes v Harry [2001] EWCA Civ 167 and Alker a......
  • Request a trial to view additional results

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