A helpful landlord is not liable for carrying out improvement works
Articles, News | Wed 31st Jan, 2024
What happens when a landlord carries out improvement works and the tenant subsequently has an accident and argues that the improvement works, whilst improving and making safer the premises, did not go far enough? Is the helpful landlord liable to the tenant? And if so, to do what? This is precisely what was considered in the recent case of Shelbie Haynes v Cannock Chase District Council (2023), at a three-day liability trial before Recorder Camp at the County Court at Stoke on Trent. In this case, improvement works had taken place by the Defendant Council (the landlord) to a flight of steps to the rear of the demised property, making those steps safer. The Claimant (whose mother leased the property) had subsequently fallen at the steps and argued that the works carried out did not go far enough. In this case, it was held that whilst carrying out the improvement works the Defendant was under a duty to take reasonable care not to create a danger, this duty did not extend to works that improved the safety of the steps. This is a welcome judgment which will assist and comfort local authority landlords who carry out such improvement works.
- A landlord is not the occupier of demised premises (property rented pursuant to a lease). It owes no ‘common duty’ of care under the Occupiers Liability Act 1957 to see that a visitor is reasonably safe, even if it has obligations in respect of maintenance and repair under the tenancy agreement.
- Rather, a landlord’s statutory duty to visitors is contained exclusively in section 4 of the Defective Premises Act 1972 (‘DPA’): to take reasonable care to see that they are reasonably safe from injury or damage caused by a ‘relevant defect’
- A relevant defect is one which flows from the obligation to maintain or repair under the tenancy agreement.
- It has therefore been held – repeatedly – that the obligation under section 4 of the DPA 1972 does not extend to ‘making the premises safe’ or improving them, or conferring a benefit which did not exist at the date of letting. Accordingly, premises with a steep unguarded staircase, or lacking a handrail, or dangerously thin glass, are not ‘out of repair’ and there is no obligation on a landlord to ‘make them safe’ under the DPA 1972 or under a contractual obligation to maintain or repair. In Alker v Collingwood, Laws LJ stated as follows:
“A house may offer many hazards : a very steep stairway with no railings ; a hidden step ; some other hazard inside or outside the house of the kind often found perhaps in particular older properties. I do not think it can be said that the Act requires a landlord on proof only of the conditions I have described for the application of Section 4 to make safe any such dangerous feature.”
- At common law, the starting position is the rule in Cavalier v Pope (1906) AC 428, to the effect that a bare landlord owes no duty to its tenant, or to subsequent visitors to the property, in respect of hidden or concealed dangers which were present when the property was let. Mrs Cavalier therefore had no remedy when the kitchen floor of the property collapsed and she fell through, sustaining injury. The rule in Cavalier v Pope applies even though the Defendant is on notice of the danger and has been asked to remedy it.
- However, in Rimmer v Liverpool City Council (1985) 1 QB 1 the Court of Appeal, whilst upholding the continuing application of Cavalier, recognised a specific exception to it, namely that ‘a landlord who designed or built premises’ which were subsequently let, owed a tortious duty to all persons (whether tenant or visitor) who might reasonably be expected to be affected by negligence in its capacity as a designer or builder. On the facts of Rimmer, the Defendant had installed dangerously thin glass in the lounge door of a property. The Claimant tenant tripped over his son’s toys and fell through the glass, sustaining injury. The Court of Appeal held that ‘there was a duty on these landlords to take reasonable care to see that this flat was reasonably safe for the plaintiff …and they failed in their duty by designing and constructing a dangerous feature in this glass panel”.
- Rimmer was followed in Targett v Torfaen Borough Council (1992) PIQR P125. The Defendant council had designed and constructed two flights of unlit steps. It had installed a handrail on one flight but not the other. It subsequently let the property to the Claimant who, using the steps at night, missed his footing and fell off the side of the lower flight, sustaining injury. The court rejected the submission that Rimmer was distinguishable on the ground that the absence of a handrail was not a case of ‘defective manufacturer’ at all. It used the illustration of an electrical cable without insulation which remained an effective means of transmitting electricity but ‘its effect was to create danger’.
- Each of the cases above concerned defects which predated the tenancy agreement but caused injury after it had taken effect. They fall into two camps. There are those (Rimmer, Targett) where the defect was created by the council in its capacity as designer and builder and the property was subsequently let. On the other hand, there are those where the defect also pre-dated the tenancy agreement but the local authority landlord had no role in bringing it about. The difference in outcome arguably reflects the imposition of liability for negligent commission in the former group, and the refusal to impose liability for negligent omission in the latter.
- But what of the situation where the Defendant is alleged to have been negligent in carrying out works after the date of the tenancy against the background of a pre-existing danger? This is the situation that arose in the recent decision of Recorder Camp in Shelbie Haynes v Cannock Chase District Council (2023) Stoke on Trent County Court.
- The Claimant was born with a range of medical conditions including Congential Varicella Syndrome, as a result of which she was registered blind. In July 2009 her mother entered into a tenancy agreement with the Defendant in respect of a three bedroom property with a garden.
- When the property was leased, the rear entrance path ran down the centre of the garden. In or around 2010 the Claimant’s mother carried out works at the property. She removed a shed to reveal a path and breeze block steps against the side fence which pre-dated her tenancy. The steps may have been created by a former tenant. They were not created by the Defendant. The Claimant’s mother chose to use this side path and steps as a new access route to the rear of the property. She carried out further improvements and alterations to the rear garden such as constructing a wall across the end of the garden where the previous path had been, built flowerbeds, turfed the grass and constructed a greenhouse.
- For a period of approximately 6 years the Claimant and her mother used the rear steps without apparent incident or complaint. It was not alleged that the steps ever deteriorated or fell out of repair in this time. Instead, the issue was that as the Claimant grew older, her independence increased and she wanted to do more on her own. In February 2016 the Claimant tripped over whilst using the steps, which had plainly become unsuitable for her due to their height and lack of support. In or around August 2016 her mother asked the Defendant to make adaptations to the steps to reduce their depth and add a handrail.
- The Defendant advised that it would be necessary to consult and obtain an assessment from occupational therapists at the social services authority (Staffordshire County Council) before it carried out any major adaptation works to accommodate the Claimant’s particular needs. Accordingly, it refused to install a handrail or any lighting.
- However, in October 2016 the Defendant sent a member of its maintenance department to the property to carry out temporary works pending the OT assessment. A job sheet suggested that the builder had been instructed to replace the existing 3 steps with 4. However, the work undertaken only involved re-laying the existing breeze-block steps on bricks, thereby reducing the drop of each step. New slabs were used to reduce the overhang and the steps were evened out.
- The evidence of the Claimant was that she found the steps slightly easier to use because they were not as deep. However, the steps remained unsuitable for her due to the lack of handrail, their significant depth and the lack of any visual markings or textured treads.
- Further delays occurred in arranging an OT assessment and implementing the proposed adaptation works. Before the works were commenced, the Claimant fell down the steps, sustaining serious injury to her knee. The judge accepted that if a handrail had been in place, the accident would not have occurred. He was also satisfied that if the drop of the steps had been reduced to the height of steps that were installed post-accident, the fall would have been avoided.
The Claimant’s case
- The Claimant’s case, which was based exclusively on the common law, was that this was a situation to which Rimmer and Targett applied. She argued that the correct formulation of the Rimmer duty was that the Defendant “undertook substantial design and construction work, [and] in so doing it assumed a duty of care at common law, to the Claimant, as someone who might reasonably be expected to be affected by the condition of the steps, to see that she was reasonably safe”
- The Claimant argued that this duty, once identified, was breached by failing, in October 2016, to make the adaptations that were ultimately made post-accident, in particular in failing to install a handrail.
The Defendant’s case
- The Defendant accepted that it owed a duty of care at common law. However, it contended that the critical question was the scope of that duty. The Defendant argued that parliament’s decision to limit the landlord’s duty of care in tort under the DPA 1972 only to defects arising under the tenancy agreement, combined with the effect of Cavalier v Pope, meant that the duty of the landlord carrying out works post-tenancy must be carefully defined so as not to cut across or undermine the existing law in this area.
- The Defendant placed particular reliance on the decision of the High Court in Drysdale v Hedges (2012) EWHC 4131 (QB). In this case, the Claimant was injured when her foot slipped on the stone steps leading up to a property that she rented from the Defendant. She fell over the unguarded edge and sustained serious injury. Her case was that there should have been a handrail on the steps, and that the application of paint by the Defendant had made the steps dangerously slippery. Applying Cavalier and the case law under the DPA 1972, the Court rejected the argument relating to the unguarded drop: the danger had existed at the date that the tenancy was entered into and the Defendant had no obligation to make it safe.
- With regard to the Defendant’s actions in painting the steps, however, the Court stated as follows:
99. I am bound both by Cavalier v Pope, Rimmer and Targett. In Rimmer and Targett the danger was caused by the defendant when acting in a different capacity from that of landlord, indeed before becoming a landlord. In the present case in having the steps painted the Defendant was doing something that a landlord in her position could well do. I do not regard her as acting in any different capacity so as to justify distinguishing Cavalier v Pope on that ground.
100. In this connection it appears to me relevant to distinguish between the unguarded drop and condition of the steps due to the presence of paint. The unguarded drop pre-existed the Defendant’s acquisition of the property whereas the paint was applied, at her instance, after the Defendant acquired the property.
101. I have no difficulty in concluding that I am bound by Cavalier v Pope so far as the unguarded drop is concerned and therefore conclude that the Defendant had no duty to guard it. But so far as the application of the paint is concerned I see no reason why the Defendant should not have a duty to take reasonable care to ensure its application did not create an unnecessary risk of injury. Otherwise a landlord would have carte blanche to act with impunity and create dangers which would not be caught by the 1972 Act.
102. I would therefore conclude that where personal injuries result from a failure to repair then the duty of care is that set out in the 1972 Act but where the Act does not apply, as is the case here, then a landlord owes a duty to take reasonable care not to create an unnecessary risk of injury.”
- The Defendant argued that the Court in Drysdale had carefully analysed the scope of the duty owed by a landlord carrying out positive activities post-tenancy and concluded that the obligation was only to take reasonable care not to create a danger or to create an unnecessary risk of injury. It had not formulated the duty in broader terms equivalent to that owed by an occupier under the 1957 Act.
- In this case, there was already a danger caused by the original steps which pre-dated the tenancy. It was clear, pursuant to Cavalier and the authorities under the DPA 1972, that the Defendant had no liability to remove that danger or to improve the premises more generally. Accordingly, its only duty was to avoid creating a new or additional danger through the works it carried out. It was contended that this was entirely consistent with Rimmer and Targett because although they concerned pre-tenancy works, in both those cases the Defendant had still created a danger which did not previously exist (since they were building the properties for the first time). Indeed, in Rimmer Stephenson LJ accepted, at 15D, that “this appeal is concerned with defects created by the vendor or lessor”. Accordingly, whilst the Court of Appeal in Rimmer had framed the duty where there was an obligation to ‘take reasonable care to see that the visitor was reasonably safe’, in the context of the manufacture of a defective product, or the construction of a building, that necessarily meant performing a positive act which introduced danger which was not there beforehand.
- The Defendant emphasised that if there was a broader duty to take ‘reasonable care’, equivalent to an occupier’s duty under section 2 of the 1957 Act, it would have a clear deterrent effect on landlords who tried to assist tenants. It would reward the idle or obstinate landlord who fails or refuses to remedy a danger about which it has express notice, yet would impose liability on the helpful landlord who intervenes, in response to the very same request, and improves the situation, even if only by a small amount. The Defendant argued that that this was a far reaching proposition and not a sound basis for the imposition of liability in this particular corner of the law.
What did the judge say?
- The Court agreed with the Defendant’s arguments and dismissed the claim. The judge held that Drysdale had correctly interpreted and applied Rimmer and Targett. The duty on a landlord carrying out construction work on the facts of the case was to take reasonable care not to create danger as a result. The duty did not extend to the adaptation of premises to improve their safety. To impose a broad duty on a landlord who carried out minor improvement works to go further and carry out major adaptations would act as a deterrent and was not capable of sensible application. The Court cited the example of a landlord which renewed a single step and, in so doing, fell under a duty to adapt the entire flight. The proposed duty would also cut across the existing framework under the DPA 1972 and the rule in Cavalier.
- Alternatively, the Court held that even if it was wrong, and there was a wider duty to ‘take reasonable care’, there was no breach of that duty either. It was reasonable for the Defendant to wait for an occupational therapy assessment before carrying out the works and the Defendant had not been at fault for the delays. Nor was the Court satisfied, in the absence of expert evidence, that the actual work carried out by the builder in October 2016 had been negligent.
- This case follows a string of authorities which affirm the position that a landlord’s duty in carrying out construction works does not extend to carry out adaptations which improve the safety of the property. Rather, there is a duty on a landlord to carry out construction works so as to only take reasonable care not to create a danger. The case represents a welcome reminder that it is not enough for a claimant simply to assert, without more, that a ‘duty is owed’. The next question is a duty to do what? Properly analysed, the issue on the facts was the true scope of the Defendant’s duty in all the circumstances. In this field of the law, those circumstances included the legislative background under the DPA 1972 and the particular effect of the rule in Cavalier. For now at least, landlords who do their best to improve an existing state of affairs, without making matters worse, can breathe a sigh of relief in the knowledge that they are unlikely to be found liable for doing so. Of course, there is always room for an argument on the facts of any given case that a landlord has specifically assumed responsibility to carry out further or wide-ranging acts such as making disabled adaptations. However, in this case the obverse was true: the Defendant had expressly stated that it would not carry out any adaptation work unless or until the occupational therapy team from the County Council carried out their assessment. In so doing, the Court accepted that they had acted entirely reasonably in the circumstances.
This article was written by Sonia Ravat, Associate at Weightmans and Jack Harding of Deka Chambers.
 Drysdale v Hedges (2012) EWHC 4131, followed in Essex CC v Davies (2020) PIQR P7 (AB331)
 Sternbaum v Dhesi (2016) EWCA Civ 155
 Sternbaum, ibid
 Alker v Collingwood HA (2007) 1 WLR 2230