Mann v Martin

Defective premises – Liability – Duty of care – Claimant living with mother holding tenancy of dwelling house – Defendant landlord retaining right of entry to effect repairs – Claimant sustaining injury following collapse of boundary wall – Claimant alleging breach of duty under Defective Premises Act 1972 – Whether defendant failing to take reasonable care to see claimant reasonably safe – Claim dismissed In 2013, the claimant’s mother entered into a tenancy agreement with the defendant in respect of 19 Riviera Garden, Chapel, Leeds. The property was a dwelling house at all material times and the defendant retained a right of entry to effect repairs. On, or around 4 April 2013, the claimant moved into the property with her mother. A pre-tenancy inspection was carried out on behalf of the defendant by property consultants instructed by the defendant’s estate agents. The claimant was seven years old when she was involved in an accident when part of the back garden boundary wall was alleged to have fallen on to her leg, causing her to sustain a compound fracture. Prior to the accident, a fence panel adjacent to the wall was replaced by an agent on the instruction of the next-door property owner who had joint responsibility with the defendant for the wall. The claimant brought proceedings against the defendant alleging breach of her duty of care as a landlord under section 4(1) of the Defective Premises Act 1972. Section 4(4) provided that, where landlords had an express or implied right to enter premises to carry out maintenance or repairs, they were responsible for any injury caused by a relevant defect that they knew about or ought to have known about (unless arising from the tenant’s failure to perform its own obligations under the lease). Held: The claim was dismissed. (1) A landlord was placed under a section 4 duty if he had the obligation or right to repair the premises (or part thereof). In this case, the defendant had a right (but probably not an obligation) to repair the wall. Under section 4, the landlord owed a duty to all persons (not just tenants) who might reasonably be expected to be affected by defects in the state of the premises, to take such care as was reasonable in all the circumstances to see that that person was reasonably safe from personal injury caused by a relevant defect, provided always that the landlord knew or ought to have known of the defect. A relevant defect, for present purposes, was a defect in the state of the premises occasioned by a failure by the landlord to maintain or repair the premises.   (2) A section 4(4) duty might apply: (i) where the relevant defect fell outside the ambit of section 4(1) altogether, either in the absence of an express repairing covenant or because the implied covenant under section 11 of the Landlord and Tenant Act 1985 was inapplicable; and (ii) where the relevant defect fell within the ambit of section 4(1) but section 4(2) could not be satisfied on the facts. The present case fell under the first category.   It was common ground that the defendant owed the claimant a duty of care in relation to the relevant defect. The issue between the parties appeared to be whether the duty under section 4(4) extended the duty under section 4(1) to a “duty to make safe”, such that a duty might be owed in relation to a latent, inherent or construction defect. (3) Section 4(4) was a deeming provision. It did nothing to change the nature of the obligation under section 4(1) but merely brought within its scope a description of maintenance and repair not otherwise caught by section 4(1), but in relation to which description of maintenance and repair the landlord had retained a right (expressly or impliedly) to enter the premises and carry out the said maintenance or repair: Lafferty v Newark & Sherwood District Council [2016] EWHC 320 (QB); [2016] PLSCS 84 considered. It followed that, if the defect complained of came about not as a result of a failure to maintain or repair (for example an inherent defect) it was not covered by section 4(1). Accordingly, although the defendant owed the claimant a duty of care under section 4(4), that did not extend to a duty to “make safe”. (3) On the evidence, the likely cause of the collapse of the wall was neither some sort of inherent defect nor the application of excessive force to it by the claimant on the day she was injured. The damage and removal of support occasioned by the work to the fencepost by the contractor hired by the neighbour was the most likely cause. It was the defendant’s clear evidence that she did not know, at the material time, that the wall was in a state of disrepair. The court accepted the defendant’s evidence that she would have carried out repairs had she been aware of any disrepair, there being no evidence to the contrary. (4) Where the landlord, as in the present case, did not have actual knowledge then the question of whether they ought to have known of the defect would usually depend upon what steps they ought reasonably to have taken to inspect the premises; and where, as in this case, an inspection was carried out the issues were whether reasonable care was taken in carrying out the inspections and whether the defect was, or should have been, discovered as a result of the inspection: Rogerson v Bolsover District Council [2019] EWCA Civ 226 ; [2019] PLSCS 40 applied. The defendant was under no duty to carry out a structural survey or examination of the wall and what was required was a reasonable visible examination for obvious defects. (5) There was no evidence that the defendant ought to have known that a defect in the wall arose as a result of the work carried out to the adjacent fence post: the work was not performed by the defendant’s agent and she could not be said to be under an obligation to carry out a specific (as opposed to a routine periodic) inspection of the work, once completed. Further, the defendant did not fail to take such care as was reasonable in all the circumstances, to see that the claimant was reasonably safe. She had no knowledge of the defect in the wall and it could not be shown that she ought to have known. Accordingly, it could not be said that she failed to take reasonable care to ensure that the claimant was reasonably safe. Colin Baran (instructed by Avery Walters, of Leeds) appeared for the claimant; James Hurd (instructed by DWF, of Leeds) appeared for the defendant. Eileen O’Grady, barrister Click here to read a transcript of Mann v Martin