Was a landlord liable for a defect that caused an accident?

Section 4 of the Defective Premises Act 1972 provides that a landlord with repairing obligations under a lease owes a duty – to all persons who might reasonably be expected to be affected by defects in the state of the premises – to take such care as is reasonable in all the circumstances to see that they are reasonably safe from personal injury or damage to their property. The category of persons to whom the duty is owed includes the tenant: Sykes v Harry [2001] EWCA Civ 167. Section 4(4) applies where landlords have an express or implied right to enter premises to carry out maintenance or repairs. In such cases, the landlord is responsible for any injury caused by a relevant defect that it knew about or ought to have known about (unless arising from the tenant’s failure to perform its own obligations under the lease). Rogerson v Bolsover District Council [2019] EWCA Civ 226; [2019] PLSCS 40 concerned a tenant who stepped backwards onto an inspection cover while mowing her front lawn. The cover was over 40 years old; it had deteriorated over time and was not properly supported. It gave way and the tenant fell, injuring herself. Was the landlord, who was responsible for maintaining the structure and exterior, liable? The inspection cover was owned by Severn Trent, but the Court of Appeal rejected the landlord’s argument that this exonerated it from responsibility. Lord Justice Males explained that, as between the parties to the tenancy agreement, the landlord was entitled to carry out repairs – and the fact that that the landlord might have needed to ask Severn Trent to carry out any work was not the tenant’s concern. Should the landlord have implemented a system of regular inspection?  And, if it was under a duty to inspect, was the duty satisfied by a purely visual inspection, or should the landlord have applied a pressure test? Lady Justice Nicola Davies took the view that none of the authorities cited to the court required landlords to make regular inspections, “without more”, for the purposes of section 4. Each case will turn on its facts – and on the landlord’s knowledge of any likely or known risks or problems. There had been two inspections in this case. Should the defect have been discovered, as a result? On the basis of the findings at first instance, the defect was there to be spotted and the landlord ought to have known about it, had the inspections been properly made. Males LJ agreed, endorsing Lafferty v Newark & Sherwood District Council [2016] EWHC 320 (QB). In that case, the judge ruled that section 4(4) of the 1972 Act does not fix landlords with knowledge of defects, thereby subjecting them to a form of strict liability that goes beyond the duty of care in section 4(1). He considered that the findings at first instance meant that there was a clear and obvious danger. What is needed will depend on the nature of the property. Sometimes a visual inspection will be required, but in other circumstances something more may be needed. A pressure test would have involved the simple application of moderate pressure, without lifting the inspection cover – and such a test would have revealed the defect, which was longstanding.   Allyson Colby, property law consultant