Section 4(4) of the Defective Premises Act 1972 does not create strict liability for undetectable defects.

The Defective Premises Act 1972 provides an important cause of action for personal injury claims. It was enacted to replace section 4 of the Occupiers’ Liability Act 1957, which was passed in response to Cavalier v Pope [1906] AC 428. In that case, the court ruled that a landlord was under no liability to his tenant’s family or visitors for injuries suffered due to the condition of premises let to a tenant, and that liability rested with the tenant. Section 4 of the 1957 Act provided that a landlord who was under a repairing obligation to his tenant owed a duty of care to visitors as well. The 1972 Act extended a landlord’s liability further still. To put things very simply, it provides that a landlord is responsible for any injury caused by a relevant defect that it knew about, or ought to have known about, and applies in cases where landlords have an express or implied right to enter premises to carry out maintenance or repairs (section 4(4)). The opinions of members of the legal profession and judiciary differ about the effect of section 4(4). Does it impose a form of strict liability on landlords by fixing landlords with knowledge of defects? Lafferty v Newark & Sherwood District Council [2016] EWHC 320 (QB) suggests not. The tenant sustained injuries – which, fortunately, were not particularly serious – when a hole opened up in her back garden. The hole appeared because an underground pipe had been leaking. This eroded the soil, which created a void. The parties agreed that the council was responsible for repairing the pipe, but the trial judge accepted that there were no external signs or warnings and that no reasonable inspection of the garden could have discovered the problem. Did section 4(4) of the 1972 Act extend the landlord’s liability, even though it was not at fault? On the one hand, the Law Commission report that led to the enactment of the 1972 Act did not support the proposition that the duty under section 4(4) is strict. However, comments in some previous authorities and, in particular, a judicial aside in the Court of Appeal, in Alker v Collingwood Housing Association [2007] 1 WLR 2230, tended to support the tenant’s argument. The judge considered that, if section 4(4) imposed strict liability, section 4(1) would be otiose because tenants would always have better rights under section 4(4). In his view, section 4(4) does not create an alternative route to recovery where a claim under section 4(1) fails. The sub-section is a deeming provision, which treats the landlord as being under a section 4(1) obligation in circumstances where the landlord is not under any contractual or statutory repairing obligations. The deemed obligation is the same, in terms of its nature and content, as the obligation owed under section 4(1). Therefore, in establishing the content of the duty, the court must ask whether the landlord “ought in all the circumstances to have known of the relevant defect”, had he inspected properly. No careful inspection could have disclosed this defect located some distance below the surface of the garden lawn. Therefore, the landlord was not liable for the tenant’s injuries. Allyson Colby is a property law consultant