Megan Louise Dodd [widow and executrix of the estate of Paul James Dodd, deceased] (Claimant/Appellant) v Raebarn Estates Ltd and Others
| Jurisdiction | England & Wales |
| Judge | HH Judge Richard Parkes |
| Judgment Date | 15 February 2016 |
| Neutral Citation | [2016] EWHC 262 (QB) |
| Court | Queen's Bench Division |
| Date | 15 February 2016 |
| Docket Number | Case No: HQ12X12X0 |
[2016] EWHC 262 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Hh Judge Richard Parkes QC,
SITTING AS A JUDGE OF THE HIGH COURT
Case No: HQ12X12X0
Howard Stevens QC and Andrew Young, instructed by Irwin Mitchell LLP, for the Claimant
Colm Nugent, instructed by Berrymans Lace Mawer LLP, for the First to Third Defendants
Hearing dates: 25–26 November 2015
HH Judge Richard Parkes QC:
Introduction
This is an appeal by the claimant from a decision by Master Leslie dated 20 May 2015, by which the claim was struck out and summary judgment was ordered. Permission to appeal was given by Andrews J on 31 July 2015.
The claimant, represented by Mr Howard Stevens QC and Mr Andrew Young, is the widow and executrix of Paul Dodd. She brings claims on her own behalf under the Fatal Accidents Act 1976, and on behalf of her late husband's estate under the Law Reform (Miscellaneous Provisions) Act 1934. The claims arise out of Paul Dodd's death in tragic circumstances on Christmas Day 2007. He and his wife, both Australians, were on their honeymoon. At the time, they were the guests of the sixth defendant (D6), who was then the leasehold owner of flat 2, 194–196 Kensington Park Road, 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. It is alleged that defects in the staircase, and above all the lack of a handrail, were responsible for his fall, and that the freehold owner of the whole of 194–196 Kensington Park Road and head lessor of (at least) the first and second floors, is answerable for those defects.
Factual Background
The first defendant (D1) was until 2005 the freehold owner of 194–196 Kensington Park Road (together, 'the building'; separately, '194 KPR' and '196 KPR'). The building is a three storey Victorian structure, with basement. The ground floor and basement are now retail premises and the first and second floors contain residential flats. D1's freehold interest in the building was assigned to the second and third defendants (D2 and D3) on 14 March 2007. D1, D2 and D3 are represented by Mr Colm Nugent. No point is taken on any distinction between the three defendants, so for present purposes they can be treated as being one and the same, and will be referred to collectively as 'Raebarn'. According to the evidence of Matthew Burfield, Raebarn's solicitor, Raebarn is a commercial landlord, which neither develops residential properties nor has residential tenants.
On 18 December 1987 Raebarn granted a headlease for 125 years of the upper floors of the building to the fourth defendant (D4), a developer, which intended to create or update residential flats. There is an important issue as to exactly which parts of the building were demised by that headlease.
The headlease, dated 18 December 1987, was made between Raebarn and D4. Clause 2 of the lease provided that Raebarn demised to D4 for a term of 125 years all the premises more particularly described in the First Schedule, together with the rights mentioned in the Second Schedule, but reserving to Raebarn the rights mentioned in the Third Schedule.
By the First Schedule, the premises were defined as 'All that property known as the Upper Parts 194/196 Kensington Park Road London W11 which are shown edged red on the plans numbered 2 and 3 annexed hereto', to include all the various features elaborated at clauses (i) to (ix). In particular, by clause (viii), the demise included 'the structure of the Building above first floor joist level including the said joists at first floor level and in particular the exterior walls main timbers joists walls and boundary fences walls and structures of the Building', but it was provided that it should not include '(i) Any part or parts of the Building (other than any conduits expressly included in this demise) lying below the said joists at first floor level'.
The parts shown edged red on the annexed plans clearly include the staircases from ground to first floor, and entrance halls, of both 194 and 196.
The difficulty with the headlease is therefore plain. On the one hand, the demise includes the staircase and ground floor common parts; on the other, it is stated not to include any parts of the building below the level of the first floor joists. On the face of it, there is or may be a conflict between the wording of the demise and the plan, or rather between two aspects of the wording of the demise. One of the issues to be decided is how that conflict can be resolved, and whether it can be resolved at all on a summary basis.
Among other provisions of the headlease were the following:
By clause 3( 3), D4 was bound 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 in order to keep the premises in that condition;
By clause 3(7), Raebarn had the right to enter on the premises and repair or reinstate them at D4's expense if D4 defaulted in the performance of any covenant relating to repair, reinstatement or decoration of the premises;
By clause 3( 9), D4 was bound not to alter any of the structure, floors, ceilings, windows, partitions or principal or main walls without the prior written consent of Raebarn (not to be unreasonably withheld).
It is clear that on 17 March 1988 D4 sought (and on 11 May 1988 obtained) planning permission to convert the first and second floors of the building into self-contained flats. It is not in dispute that Raebarn gave its written consent to those alterations.
The drawings submitted with the application specified a new staircase between the ground and first floor of 196 KPR, with the same specification as the staircase from first to second floor, which featured specified tread and riser measurements and a handrail. This, according to the claimant's solicitor, Ms Edwards, made it clear that the staircase which (as she would have it) 'caused the accident' was not the original, but a replacement which was installed in around 1988, when the conversion of the first and second floors was carried out. That appears to be correct.
It is the claimant's case or proposed case (in the draft amended Particulars of Claim) that the staircase as built both breached the terms of planning permission and offended against Building Regulations, principally by omission of the handrail and by the installation of treads which were shorter, and risers that were higher, than they should have been.
There seems to be force in that case. It seems that the treads and risers did not accord with the plans, and if (as appears to be the case) no handrail was installed, that would have been a breach of planning permission and of the Building Regulations. A report by Mr McCartney for the claimant dated 27 October 2014, with addendum of 22 March 2015, shows that the lack of a handrail between ground and first floor would probably have been a breach of the basis on which planning permission was granted (the drawings having shown a handrail) and of Building Regulations, which would have required one. There were further breaches (either of Building Regulations or planning consent) in the height and depth of the treads. It may have been also that the timing of the lighting of the common parts was inadequate or unsafe. Mr Kevin Woudman, Raebarn's expert, agreed in his report dated 6 October 2014 that Building Regulations required a handrail, that the plans submitted with the application for planning consent showed one, and that the absence of a handrail made the staircase potentially dangerous. Indeed, the local authority should not have signed off the development if there was no handrail. It was unclear to him whether the risers and treads would have been in breach of Building Regulations, because although they differed from the requirements of the Regulations, the Building Control Officer had a discretion to accept minor variations.
Certainly, there was no handrail at the time of Mr Dodd's fall, and there had not been one between 1995 and April 1997, as the witness statement of Francis Nouyou makes clear. There is no evidence (and it does not appear to be the claimant's primary pleaded case) that the handrail was originally installed as part of the rebuilding in 1988 but then removed at some point before 1995. It seems improbable that the steps and risers were altered at some stage after the rebuilding, because that would have involved substantial work, so it is likely that the issue of the handrail was also a non-compliance dating from 1988. Indeed, absent any evidence of later removal, the natural inference must be that it was omitted during the rebuilding work.
It is significant that there was a surrender back by D4 to Raebarn dated 8 July 1988 of the ground floor access of 194 KPR, including the staircase to the first floor, for the sum of £18,000. The staircase in 194 KPR was taken out, with the result that the only access to the flats on the first and second floors of the building was by the staircase in 196 KPR.
Between 1988 and 1991 D4 granted underleases of flats 1 and 2 on the first floor of the building and flats 3 and 4 on the...
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Megan Louise Dodd (Widow and Executrix of the Estate of Paul James Dodd, Deceased) v Raebarn Estates Ltd and Others
...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 Premis......