Landlord's liability for injury – when is a danger not a defect?

The claim arose out of a tragic incident. An Australian, on honeymoon in London, fell down a flight of stairs in flats where he and his wife were staying. He subsequently died of his injuries. His wife brought a claim against a number of Defendants, including the landlord of the property.

The stairwell in question had no handrail, and it seems that the size of the treads and risers on the stairs were in breach of Building Regulations. The Judge concluded that the stairs were "potentially dangerous", but had to decide whether that was sufficient to make the landlord of the property liable to the Claimant under the Defective Premises Act ("DPA").

Section 4 of the DPA states that where a tenancy agreement obliges the landlord to repair or maintain the premises, the landlord owes a duty to anyone who might be affected by defects in the premises to take reasonable care to ensure that they are not injured by a "relevant defect".

That obligation will effectively extend to any lawful visitors to the premises, which begs the question of what is a "relevant defect"?

Section 4 goes on to define a "relevant defect" as one which arises from, or continues because of, the landlord's failure to carry out their maintenance/repair obligations under the lease.

Despite his finding that the stairs were potentially dangerous, the Judge concluded (albeit "not without regret") that the absence of a handrail, and the size of the treads and risers, did not arise from the landlord's failure to repair the property. Crucially, he found that the stairs had always been in this condition, and in particular that there had never been a handrail in place.

The Judge concluded that

“the duty of repair is not to be equated with a duty to make safe or even to make habitable. It is limited to a duty to put right something that is in a worse condition than it was at some previous time.”

The landlord's obligation to repair only arises once some aspect of the property falls into disrepair. Although the stairwell here was probably unsafe, it had always been in this condition. The stairwell was well constructed, and the danger it posed did not arise out of a failure to keep it in good repair.

The Judge was wary of giving Section 4 a wider interpretation than this, as he felt that it could otherwise "impose a substantial burden on a landlord to put right matters which are under the control of the tenant".

Commentary

A landlord in these circumstances could arguably still be liable to an injured Claimant via another route – such as the Occupier's Liability Act 1957, or in negligence. However as far as the DPA is concerned, this decision makes it clear that it is not enough for a Claimant to show that the premises are dangerous – the Claimant must go on and show that the danger arose out of the landlord's failure to repair.

The Judge gave other examples of circumstances where a danger in tenanted property would not arise from lack of repair. One example was a glass door panel which is fitted with normal glass, instead of safety glass. The panel would be unsafe, but that danger could not be said to arise from lack of repair. Again, a claim under the DPA by a person injured by the glass panel breaking would fail.

In the Dodd case, the situation might have been different had a handrail originally been installed on the stairs. If that handrail had then fallen off or been removed, and the landlord had failed to take reasonable steps to replace it, then the claim would probably have succeeded.

This might seem rather arbitrary, as in this scenario the stairs would have been precisely as dangerous as they were when the accident actually occurred. However the landlord's liability can only arise from failure to repair – as the Judge in Dodd concluded, "potential dangerousness is not the test under the DPA".