Rogerson v Bolsover District Council

Defective premises – Liability – Duty of care – Appellant tenant appealing against decision of county court that respondent local authority having no duty under section 4 of Defective Premises Act 1972 to inspect property – Whether landlords under duty, without more, to implement system of regular inspection to satisfy section 4 – Whether respondent complying with duty to take reasonable care when carrying out inspections – Appeal allowed The appellant was the tenant of a council house owned by the respondent at 49 Gladstone Avenue, Blackwell, Alfreton, Derbyshire pursuant to a tenancy agreement dated 15 July 2013. On 7 September 2014, the appellant was mowing the lawn in the front garden when she stepped backwards with her left foot onto an inspection cover which gave way, causing the appellant’s left leg and body to fall through the cover into an underground chamber used for water sewage. The inspection cover, underlying equipment and structure were the property of Severn Trent Water Ltd. The cover was metallic and should have been supported by a metal frame supported by mortar or similar material. By schedule 2 of the tenancy agreement, the landlord was obliged to maintain the structure and exterior of the property. The appellant brought proceedings against the respondent for personal injury, loss and damage. She relied on a report from a chartered civil engineer which stated that the cover was between 40 and 60 years old and was corroded. The respondent relied on documents produced by an operational repairs manager relating to inspections of the property in May 2013 and January 2014. It was common ground that it was for the respondent to show that it had complied with its duty of care pursuant to sections 4(1)-(3) of the Defective Premises Act 1972. The district judge concluded that there was no sufficient evidence before the court to show that the respondent had complied with its duty to take such care as was reasonable to see that the premises were reasonably safe to protect people from personal injury caused by a relevant defect. He awarded damages in the sum of £15,082.88. On the respondent’s appeal, the county court concluded that the appellant had failed to establish a breach of section 4(1). The respondent had no duty under section 4 of the 1972 Act to inspect the appellant’s property. The appellant appealed. Held: The appeal was allowed. (1) The question raised by section 4(1) was whether the landlord took such care as was reasonable in all the circumstances to ensure that all persons who might reasonably be affected by defects in the state of the premises were reasonably safe from personal injury or damage which could be caused by a relevant defect. That was a fact specific question to be answered in the circumstances of the individual case. The respondent had submitted that the garden and the inspection cover did not fall within the parameters of its obligation under schedule 2. However, it had also conceded that if the visual inspection revealed an apparent defect which might place the appellant at risk of injury, there would still be a duty to act reasonably by taking such care as was reasonably required to see if the tenant was reasonably safe. The inspections carried out on behalf of the respondent in May 2013 and January 2014 had included the garden as an identified area which required inspection. Within the front garden was the inspection cover. The fact that the cover, the void and structure beneath it belonged to a third party did not obviate the need for an inspection of the cover. (2) A landlord was not under a duty, without more, to implement a system of regular inspection in order to satisfy the provisions of section 4. In each case it was a question of fact, one aspect of which was the knowledge of the landlord as to any likely or known risks or problems in the property. In this case there had been inspections: one triggered by the commencement of a new tenancy; another by a ten-year stock review. Those were occasions when it was reasonable to implement inspections. However, on the facts, there was insufficient evidence to provide a sound basis for stating that section 4 required the respondent, without more, to institute a system of regular inspection of the property: Clarke v Taff-Ely Borough Council (1983) 10 HLR 44, Sykes v Harry [2001] EWCA Civ 167; [2001] PLSCS 28 and Lafferty v Newark and Sherwood District Council [2016] EWHC 320 (QB); [2016] PLSCS 84 considered. (3) It was not clear from the limited evidence before the court the nature and extent of the inspections carried out. The district judge had been entitled to find that there was nothing to show that the duty of care to carry out a reasonable inspection of the premises had been fulfilled as regards the state of the garden and that the inspection covered represented a clear and obvious safety risk. There was no sound evidential basis to enable the county court to conclude that each inspection had been carried out with reasonable care without evidence as to how either inspection had in fact been carried out nor what had been inspected within the garden. (4) The purpose of section 4 was to ensure that the landlord was unable to avoid liability to those to whom the duty was owed, to maintain the premises free from any (relevant) defect. On the facts found, there was a physical defect. A pressure test would have been sufficient to reveal the defect which entailed no more than a measure of lateral pressure on the cover itself. Such a test at the time of either inspection would have identified a problem in the stability of the cover caused by the absence of adequate support. It was a defect of which the respondent knew, or ought to have known, had the inspection been properly carried out. The county court erred in finding that, without more, the respondent was under no duty to inspect to ensure relevant defects did not develop. Such a finding negated the purpose and spirit of section 4 which imposed upon a landlord a duty to take reasonable care to ensure that persons who might reasonably be affected by a defect were reasonably safe. Tom Russell and Ben Chapman (instructed by Hopkins Solicitors LLP) appeared for the appellant; Angela Rainey and Michael Standing (instructed by BLM Law LLP) appeared for the respondent. Eileen O’Grady, barrister Click here to read a transcript of Rogerson v Bolsover District Council