Nili Sternbaum v Bal Binder Dhesi
| Jurisdiction | England & Wales |
| Judge | Lady Justice Hallett DBE,Lord Justice Briggs,Mr Justice Moylan |
| Judgment Date | 18 March 2016 |
| Neutral Citation | [2016] EWCA Civ 155 |
| Date | 18 March 2016 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2014/3857 |
[2016] EWCA Civ 155
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Coventry County Court
Recorder Davies
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Hallett DBE
Lord Justice Briggs
and
Mr Justice Moylan
Case No: B3/2014/3857
Charles Davey for the Appellant
Jonathan Mitchell for the Respondent
Hearing dates: 23rd February 2016
Facts
The Respondent was the owner of 11 St Mark's Road, Leamington Spa. By a tenancy agreement dated 12 May 2009, he let the premises to a company in which both the Appellant and her business partner Dr Diamond had an interest. The agreement contained the following clause at 8.4.1:
"Sections 11–16 of the Landlord and Tenant Act 1985 (as amended by the Housing Act 1988) apply to this Agreement. These require the Landlord to keep in repair the structure and exterior of the Premises (including the drains, gutters and pipes) and keep in repair and proper working order the installations in the Premises for the supply of water, gas, electricity, sanitation, and for space and water heating. …"
By clause 6.3.1 the tenant was obliged to permit the landlord to enter the premises for the purpose of inspection and repair.
We have limited information about the history of the property save that we know it is Victorian and has two staircases: the main staircase and a back or service staircase. The back staircase, with which we are concerned, at the time of the tenancy agreement was steep and enclosed by walls on both sides. There was no hand rail or bannister fitted. A remaining post or half post embedded in the wall at the bottom of the stairs and its equivalent with a bannister at the top of the stairs suggest a bannister may have been removed from the lower flight at some stage in the building's history. On 25 May 2009 the Appellant slipped and fell as she walked up the stairs on a visit to her business partner. She sued in negligence and breach of statutory duty.
By the time of trial before Mr Recorder Rhodri Davies QC, the issues had narrowed to the Appellant's claim under section 4 of the Defective Premises Act 1972 (" DPA"). It was her case that without a handrail the stairs were in a dangerous condition and had there been a handrail the accident would not have happened. Further, she contended that the staircase was part of the structure of the premises, the bannister/handrail was part of the staircase and therefore was also part of the structure. It was the landlord's responsibility to maintain and repair the structure. When the bannister was removed the staircase became unsafe and the absence of a bannister/handrail was a "relevant defect" which the landlord had a duty to repair under the agreement and under section 4 of the DPA.
Both parties invited the court to note that section 4 of the 1972 Act (which replaced section 4 of the Occupier's Liability Act 1957) was introduced to remedy a lacuna in the Common Law by which a landlord had no liability for injuries suffered by a tenant's family or visitors to premises. Section 4 of the DPA provides:
"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."
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.
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; and for the purposes of the foregoing provision "the material time" means—
where the tenancy commenced before this Act, the commencement of this Act; and
in all other cases, the earliest of the following times, that is to say—
(i) the time when the tenancy commences;
(ii) the time when the tenancy agreement is entered into;
(iii) the time when possession is taken of the premises in contemplation of the letting.
(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 subsection (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.
(5) For the purposes of this section obligations imposed or rights given by any enactment in virtue of a tenancy shall be treated as imposed or given by the tenancy.
The Appellant placed heavy reliance on a first instance decision of HHJ Anthony Thornton QC in Hannon v Hillingdon Homes 2012 EWHC 1437 QB. HHJ Judge Thornton found the defendant landlord Hillingdon Homes liable for breach of section 4 by failing to 'repair' a bannister that had been deliberately removed by the existing tenant twenty years prior to the accident. A thorough analysis of the building led him to the conclusion that the staircase in question was part of the structure of the premises and the bannister a necessary part of that structure. He noted that the bannister was part of the demised premises and its removal occurred after the material time when the tenancy commenced. This constituted a continuing defect which the landlord was obliged to remedy (repair). The failure to re-install a handrail was therefore a "relevant defect" within the meaning of section 4 of the DPA.
For his part, the Respondent admitted that the District Council served an improvement notice on him to install a handrail in relation to a "Category 1 Hazard", but nevertheless denied that without a handrail the stairs were unsafe. He pointed to the fact there was no handrail when the tenancy commenced and argued that imposing upon him an obligation to install a handrail amounted to imposing on him an obligation to improve or make safe the premises. His only obligation was to repair and maintain. Counsel then acting for the Respondent distinguished Hannon on the basis that in Hannon a handrail was present at the time the tenancy began and had been removed, whereas in this case there had never been a bannister/handrail present during the relevant period. She, in turn, placed heavy reliance on the decision in Alker v Collingwood Housing Association [2007] 1 WLR 2230, CA, in which Laws LJ (with whom the other members of the court agreed) stated in clear terms that a duty to repair and or maintain could not be equated with a duty to make safe. In Alker the front door of the demised premises was (and always had been) fitted with glass that presented a safety hazard. The court held that there was no duty on the landlord under the tenancy agreement or under section 4 to fit safety glass. The glass was not broken and was not per se in a state of disrepair. 'Unsafe' does not mean in disrepair. The "reach of the duty arising under section 4 is no longer than the reach of the covenant to repair and/or maintain" (see paragraph 11).
Mr Recorder Davies found as a fact that the accident happened as described by the Appellant and would not have happened had there been a handrail. At paragraph 17, he noted that it was clear from Alker that "there is no general duty on a landlord to make the premises safe for the tenant" and concluded "the duty is to keep the premises, taken as they are at the beginning of the tenancy, in repair and maintained thereafter in so far as that is a matter for the landlord as relating to structure". He added that
"it is clear from the judgment of Lord Justice Lawton ( in Quick v Taff Ely BC 1986 QB 809) that a landlord can offer to let a wreck and a tenant can take it. The obligation to maintain and repair relates to the property in the state it is at the beginning of the tenancy. There is not…… an obligation to reinstate features which may have existed at some unknown time prior to the tenancy. Alker cannot ….be distinguished on that basis and to do so would be would be inconsistent with the scheme and purpose of the Act as explained in Alker…..
In other words, there was no obligation to fit a handrail, removed before the tenancy began, so as to make the staircase safe. On that basis alone the claim failed. He did not therefore consider the issue of knowledge (if that was in issue) and he did not make a specific finding that there was any structural defect. In his final paragraph 18 however he said this:
"In consequence, I do not have to address the question whether there was in the meaning of the Act a defect here but I will indicate the view I had formed, which was that it was a defect in this staircase that it...
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Megan Louise Dodd (Widow and Executrix of the Estate of Paul James Dodd, Deceased) v Raebarn Estates Ltd and Others
...that Laws LJ gave was a very steep stairway with no railings. That example came to be tested before this court in Sternbaum v Dhesi [2016] EWCA Civ 155, [2016] 2 P & CR 4, decided a month after the judge had given judgment in our case. Apart from the fact that the injuries concerned in that......