Megan Louise Dodd (Widow and Executrix of the Estate of Paul James Dodd, Deceased) v Raebarn Estates Ltd and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison,Lord Justice McCombe,Lord Justice McFarlane |
| Judgment Date | 21 June 2017 |
| Neutral Citation | [2017] EWCA Civ 439 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2016/0939 |
| Date | 21 June 2017 |
[2017] EWCA Civ 439
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
HIS HONOUR JUDGE PARKES QC
HQ12X05244
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice McFarlane
Lord Justice Lewison
and
Lord Justice McCombe
Case No: B3/2016/0939
Howard Stevens QC and Andrew Young (instructed by Irwin Mitchell LLP) for the Appellant
Graham Eklund QC and Colm Nugent (instructed by Keoghs LLP) for the Respondents
Hearing dates: 13 June 2017
Approved Judgment
Mr Paul Dodd was on honeymoon in London on Christmas Day 2007. He and his wife Megan were staying in Flat 2 on the first floor of a building at 194–196 Kensington Park Road, following ten days spent touring Europe. They celebrated Christmas in the flat with friends. At about 9.15 p.m. Mr Dodd went downstairs with some of his friends to have a smoke. He lost his footing on the lowest flight of stairs, and in falling suffered catastrophic head injuries from which he never recovered. Sadly, after some two years in a coma, he died in his native Australia.
There are three tiers of property interests in the building:
i) The freehold. This was acquired in 1987 by Raebarn Estates Ltd and transferred to Raebarn Estates (No 2) Ltd and Raebarn Estates (No 3) Ltd in 2007. I refer to the freeholders as "Raebarn".
ii) The head lease. This was a 125 year lease of the upper parts of the building (including the staircase and entrance hall) granted by Raebarn to Southwind Holdings Ltd in 1987 and assigned to 194–196 Kensington Park Road 1995 Ltd in 2005. I refer to them collectively as the "head lessee". The property comprised in the head lease included "all additions alterations and improvements to the premises made at any time".
iii) The underleases of the individual flats in the upper parts of the building. The lease of flat 2 was held by Mr Pereira.
Mrs Dodd has brought claims against the holders of all three tiers of interest. The sole question on this appeal is whether Raebarn, as freeholders of the building, are potentially liable for his injuries under section 4 of the Defective Premises Act 1972.
A number of tenant's covenants in the head lease are relevant to the arguments before us. Clause 3 (3) provides:
"At the cost and charge of the Tenant from time to time and at all times during the term to put and thereafter throughout the term to keep the premises … in good and substantial repair order condition and decoration including the remedying of any inherent defect to the premises as and where necessary to keep the premises in such condition …"
Clause 3 (7) provides:
"The Landlord may give or leave notice in writing upon the premises specifying any defaults defects decays wants of reparation or amendment found upon the premises for the Tenant to amend and repair the same and the Tenant will within the space of ninety days next after such notice well and substantially repair mend and make good the same according to the covenants and provisions of these presents AND if the Tenant shall at any time make default in the performance of any covenant hereinbefore contained for or relating to the repair reinstatement or decoration of the premises it shall be lawful for (but not obligatory for) the Landlord … to enter upon the premises and repair reinstate or decorate the same at the expense of the Tenant in accordance with the covenants and provisions of these presents …"
Clause 3 (8) (a) contains a covenant by the head lessee to execute all such works as are required by Acts of Parliament local bye-laws and regulations. Clause 3 (9) contains a covenant against altering the structure of the premises without the landlord's consent. Clause 3 (12) contains a covenant by the head lessee to comply in all respects with the requirements of all planning permissions so far as they relate to or affect the premises.
In 1988 the head lessee applied to the local planning authority for planning permission to reconfigure the flats in the upper part of the building. At the time of the demise there had been two staircases leading to the upper parts: one in 194 and the other in 196. The plans submitted in support of the application showed that part of the scheme involved the removal of both the existing staircases serving the upper parts and their replacement with a single new one in 196. Notes on the relevant plan showed that the new flight of stairs from the ground floor to the first floor would be equipped with a handrail and that the stairs themselves would have a maximum rise of 190mm and a minimum going (or tread) of 240mm. Planning permission was granted for the reconfiguration "as shown on the submitted drawings". However, when the new staircase was constructed it is likely that the handrail was omitted on the flight of stairs from the ground floor to the half landing below the first floor, and the stairs themselves were steeper and shallower than the dimensions shown on the submitted plan. It also seems probable from a comparison between the lease plan and the plans submitted to the local planning authority that the replacement staircase was not in the same position as the old staircase: hence its comparative steepness. The staircase from the ground floor to the half landing was enclosed by two walls, as it had been before.
Although no document is in evidence, it is part of Mrs Dodd's pleaded case that Raebarn gave written consent to the alterations under clause 3 (9) of the head lease. It is also part of her case that the old staircase in 196 that was replaced in the course of the alterations had been equipped with a handrail on the flight going from the ground floor to the half landing below the first floor. For the purposes of this appeal we must assume that both these parts of her case are factually correct.
An alternative theory is that the replacement staircase did have a handrail at the time of the reconfiguration, but that it was subsequently removed at some point between 1988 and 1995. There is no direct evidence to that effect, but it is argued that the judge was wrong to dismiss that theory summarily as "speculative and fanciful".
It is common ground between the experts that the lack of a handrail and the steepness of the flight amounted to a breach of the Building Regulations in force at the time of the alterations.
Raebarn applied for summary judgment against Mrs Dodd on the ground that her claim had no real prospect of success. That application succeeded before Master Leslie. Her appeal against Master Leslie's decision was heard by HH Judge Parkes QC. The case against Raebarn was put on various grounds before the judge. He rejected them all, dismissed the appeal and gave summary judgment in Raebarn's favour. His judgment is at [2016] EWHC 262 (QB), [2016] PIQR P16. The only surviving ground on this second appeal is that Raebarn is said to be liable under section 4 of the Defective Premises Act 1972. The relevant parts of that section read as follows:
"(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 [commencement of the tenancy] 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."
It can be seen from my description of the relevant covenants that liability for repair rests on the head lessee. The freeholder is not liable to the tenant for carrying out any description of maintenance or repair. It follows that section 4 (1) of the Act cannot apply directly. That is why the case is confined to section 4 (4).
It was rightly accepted below that if section 4 (4) applies Mr Dodd was within the class of person to whom the duty under section 4 (1) is owed. It is true that the last five lines of section 4 (4) state that "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...
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