A steep staircase without a handrail that was ‘potentially dangerous’ is not a relevant defect for the purposes of the Defective Premises Act 1972

Helen Pooley looks at the case of Megan Louise Dodd v Raebarn Estates Ltd and 5 Others [2016] EWHC 262 (QB) which reminds practitioners of the narrow interpretation of a ‘relevant defect’ under the Defective Premises Act 1972.

The Defective Premises Act (“DPA”) is an important, but often misunderstood, cause of action for personal injury claims. The section 4 duty was originally enacted to plug a gap in the law – previously, landlords had been able to frequently escape liability for harm caused by the dangerous state of properties they had rented out (authority had held that a potential claimant in this scenario had no cause of action in either common law or under the Occupiers Liability Act (“OLA”)). Since its introduction, the DPA has remained a constant source of confusion for practitioners and this month’s high court case is a useful reminder of some of the key issues to consider and why the section 4 duty is often a more narrow one than might be expected.

Background Facts

The immediate case was brought by a widow, who appealed against the striking out of her negligence claim against the Defendant freeholder of a building. Her husband had fallen down a staircase in the building some years previously – he suffered from brain damage as a result of the fall and subsequently died two years later.

The building in question had three storeys. In 1987, the freeholder Defendant had kept the ground floor (for retail premises) and granted a lease over the first and second floors to a developer. The developer went on to create residential flats and as part of the work, replaced the staircase between the ground and first floor. The new stairs were steep and had no handrail.

In 2007, the widow’s husband fell down the said staircase in 2007 whilst visiting a flat on the first floor of the building.

The Initial Claim

The widower brought a claim against the Defendant freeholder on two grounds:

1. first of all arguing that the Defendant freeholder had failed to discharge the common law duty of care as occupier to her husband, as a visitor under the OLA;
2. secondly, and if it were found that the Defendant found not to be occupier, the Defendant freeholder had alternatively failed to take reasonable care under s.4 of the DPA to see that those likely to be affected by the condition of the staircase were reasonably safe in using it.

A High Court Master heard an application for summary judgment. The OLA claim centred on whether the Defendant freeholder had demised the staircase to the developer. The Defendant developer argued that given they had demised the staircase to the developer, they were therefore not the occupier of the staircase. There was argument over some potentially contradictory wording in the lease between the freeholder and the developer.

The Master concluded that the freeholder and developer had obviously intended a means of access to the first floor to be demised and he therefore found that the Defendant freeholder had no control or duty of care over the replacement staircase under the OLA. He also concluded the staircase was not defective under s.4 DPA. Summary judgment was entered and the claim was dismissed.

The Appeal

The appeal was dismissed – the court found that the Master had entered summary judgment correctly.

The basis of the widow’s appeal was two fold:

• the construction of the lease was an issue that was too important to determine on a summary basis and should have been decided at trial and after hearing evidence as to how it was negotiated; and
• the lack of a handrail was a relevant defect that the freeholder as landlord had a duty to repair under s.4 DPA.

It was held that the Master had been correct in his approach to the lease and the construction of the lease. The appellant court found it “thoroughly implausible” that commercial entities such as the Defendant freeholder and developer would have entered into a lease for the demise of the upper floors of a building without providing for access for the residential occupants of said floors. The staircase in question did nothing other than lead to the upper floors so there was no point in the freeholder retaining them. The contradictory wording the Master had considered was ‘plainly, a clumsy error in the drafting of the headlease’. On this basis, the appellant court decided that the widow had no real prospect of succeeding in the OLA claim.

The appeal court then went on to look at section 4 of the DPA as the alternative cause of action. It was not disputed that the deceased had fallen within the category of persons to whom a section 4 was owed. The widow’s case was that the staircase had a number of defects – no handrail, lack of permanent artificial lighting, over-narrow treads and over-high risers. The widow’s case was that these amounted to  failures to comply with the terms of planning permission and Building Regulations and amounted to a relevant defect under section 4. The extent of the duty owed under section 4 was argued at length.

The appellant court concluded that case law had established that the duty of repair under section 4 is not to be equated with a duty to make safe. It is a more limited duty – to put right something that was in a worse condition that it was at some previous time. ‘Moreover, the words of s4 should not be given a wide construction, because they can operate to impose a substantial burden on landlords to put right matters that were under the control of the tenant’.

The appellant court went on to accept that ‘it is arguable that the lack of a handrail, and such other failures as there may have been by [the Defendant freeholder] to comply with the terms of planning permission and Building Regulations, may amount to a defect in the state of the premises. However, for liability to attach under the DPA, it must have amounted to a relevant defect as defined in s4(3). That is to say, the defect must be one which arose from or continued because of an act or omission by the landlord which constituted, or would – if he had had notice of the defect – have constituted, a failure by him to carry out his obligation to the tenant for the maintenance or repair of the premises‘.

A reminder of what the test is for a section 4 DPA defect

The duty of care imposed by s4(1) is linked to the landlord’s obligation ‘for the maintenance or repair’ of the premises: it is not linked to an obligation to remedy defects in any more general sense.

Furthermore, the obligation to repair does not arise unless the object concerned was out of repair – in the immediate case, there was no evidence that the staircase was anything other than well constructed. The steepness of the stairs and the lack of handrail probably made it unsafe (and indeed, that is why a handrail is required by the Building Regulations). However, existing authority meant that potential dangerousness was not the test for a relevant defect under the 1972 Act.