Lafferty v Newark and Sherwood District Council

Defective premises – Liability – Landlord – Defective Premises Act 1972 – Appellant injured when hole opening suddenly in her garden – Claim against respondent landlord for damages under section 4 of 1972 Act – Claim dismissed on ground that defect latent and no evidence that respondents ought reasonably to have known of it – Whether liability extended under section 4(4) where landlord having right of entry under tenancy – Whether knowledge to be imputed to landlord in such cases – Appeal dismissed In November 2010, the appellant sustained injuries to her left leg and foot, and grazes to both legs, when she fell into a hole which suddenly opened up under her while she was hanging out washing in the back garden of her home. She brought proceedings against the respondent council, which let the property to her family on a tenancy, claiming damages under section 4 of the Defective Premises Act 1972. The judge found that the accident had occurred as a result of erosion of the ground over time where it had been saturated by water leaking from a fractured underground pipe that led to a soakaway. He further found that the soakaway pipe was part of the drainage of the premises, which the respondents were under an obligation to maintain and repair pursuant to section 11 of the Landlord and Tenant Act 1985, and that the broken soakaway was a relevant defect for the purposes of section 4(3) of the 1972 Act. However, he also found that the defect was a latent one of which there were no external signs or warnings and which would not have been discovered on a reasonable inspection of the garden. He accordingly held that the respondents were not liable since there was no evidence that they ought in all the circumstances to have known of the relevant defect. In reaching that conclusion, he rejected the appellant’s contention that section 4(4) of the 1972 Act, which treated the landlord’s repair and maintenance obligations under the tenancy as extending to matters in respect of which it had a right of entry, had the effect of extending the landlord’s liability in the absence of fault. He held that the effect of section 4(4) was merely to treat the landlord as being under an equivalent obligation regarding repair and maintenance to those created by the preceding subparagraphs of section 4, and did not involve imputing knowledge of a defect to a landlord where none existed. The appellant appealed. Held: The appeal was dismissed. The purpose of section 4(4) of the 1972 Act was not to create a strict liability but to extend the application of section 4(1), and thus the section as a whole, to relevant defects which, not being the subject of a repairing or maintenance obligation under the tenancy, would otherwise fall outside its scope. Section 4(4) was not intended to confer an additional or alternative route to recovery where there was a relevant obligation under the tenancy but where the claim under section 4(1) failed on its facts because the test of knowledge under section 4(2) was unsatisfied. Subsection 4(4) was a deeming provision which treated the landlord as being under a section 4(1) obligation in circumstances where the lease and statute did not confer such an obligation. As a matter of statutory language, that deemed obligation was exactly the same in its nature and content as the obligation that would have been owed under section 4(1) had that subsection been applicable. The obligation under section 4(1) was an obligation to exercise reasonable care in all the circumstances; it was not a strict obligation. The obligation under section 4(4) was no different. Section 4(4) did not serve to create a fresh, standalone obligation, but instead made clear that the deemed obligation was the same as that owed elsewhere in the section. It had nothing to do with imputing knowledge but was solely concerned with imputing an obligation. It followed that the section 4(4) obligation, being the same as the section 4(1) obligation, was similarly subject to sub-sections (2) and (3). Accordingly, where section 4(4) applied, so did section 4(1), for the purpose of which, in establishing the content of the duty, it was necessary to ask whether the landlord “ought in all the circumstances to have known of the relevant defect” within the meaning of section 4(2). That required an inquiry by the court into what information the landlord had obtained, or ought to have obtained, during the course of carrying out any inspections, and what information it would have obtained had it carried out such inspections as it ought to have performed properly. The paradigm cases where liability would be established in a section 4(4) case were where a landlord’s inspections were negligently performed, or where the landlord failed to carry out proper inspections because it did not implement a reasonable system for performing them. In the instant case, the proper course would have been to scrutinise the respondents’ system for inspecting the property and whether even an entirely reasonable system would have discovered the presence of the defect. The judge had made no finding as to whether the respondents, in the discharge of their deemed obligation to enter the demised premises for the purposes of inspection, maintenance and repair, had exercised reasonable care. However, that omission made no difference to the outcome since it was an irresistible inference from the facts found by the judge that no careful inspection could have disclosed the defect: Alker v Collingwood Housing Association [2007] EWCA Civ 343; [2007] 1 WLR 2230; [2007] 2 EGLR 43 and Hannon v Hillingdon Homes Ltd [2012] EWHC 1437 (QB) considered. Iain Colville (instructed by Hopkins Solicitors LLP, of Mansfield) appeared for the appellant; Philip Godfrey (instructed by Clyde & Co Claims LLP, of Manchester) appeared for the respondents. Sally Dobson, barrister Click here to read a transcript of Lafferty v Newark and Sherwood District Council