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12 October 2017

The liability of a freehold owner where a visitor suffers fatal injuries

In the recent case of Dodd v Raebarn Estates Ltd and others (2017), the Court of Appeal considered whether a freeholder, who was the landlord of a headlease, could be held liable under the Defective Premises Act 1972 (“the DPA”) when a visitor fell down the stairs and suffered fatal head injuries.

Background

Under Section 4 of the DPA, a landlord owes a duty of care to anyone who may reasonably be expected to be affected by a defect in the state of the premises and owes a duty to protect them from personal injury caused by a “relevant defect”.

However, this duty only arises where the landlord is under an obligation to repair or maintain the premises and according to the case of Lees v Leeds City Council (2002), this duty is limited to the description of repair or maintenance, for which the landlord has the right to enter the property under the lease.

The courts take the view that a duty to repair or maintain does not equate to a duty to make safe and therefore this duty is not wide enough to encompass an obligation to remedy defects in a more general way. In Alker v Collingwood Housing Association (2007), the landlord was not obliged to fit safety glass, where the front door of the premises was fitted with glass that presented a safety hazard. Similarly, in Sternbaum v Dhesi (2016), it was held that the landlord was not liable when a tenant fell down a staircase without a bannister, where there was no bannister in place at the date of the tenancy agreement.

Facts

Raeburn Estates Ltd was the landlord of mixed use premises and the upper floors of the premises were demised to a developer who had installed a staircase as part of the refurbishment.

Mr Dodd, a visitor of the premises, fell down the stairs and tragically died of his head injuries. His estate issued proceedings against the landlord under both Section 4 of the DPA and the Occupiers Liability Act 1957 (“the OLA”) for a claim in excess of £1,000,000.

It was argued that the landlord owed a duty of care, as the staircase had a number of relevant defects, including the lack of handrail and narrow treads. This was in breach of building regulations and the terms of the planning permission, which made reference to a handrail. Furthermore, the landlord was entitled to enter the premises, under the terms of the headlease, to undertake any repairs, reinstatement or decoration which the tenant had failed to undertake.

Decision

The High Court rejected the claim under the OLA as the landlord, as the superior landlord, did not have residual control over the premises and therefore could not be considered the occupier.

With regards to the claim under the DPA, the court held that even if the staircase was defective and potentially dangerous, it was not “out of repair”; the staircase itself was well-constructed and there was no damage to the structure which the landlord was required to make good. The lack of handrail did not amount to disrepair in itself.

The Court of Appeal upheld this decision as a duty to repair under Section 4 of the DPA is not the same as a duty to make safe. The duty under Section 4 of the DPA will only arise if the defect is due to an act or omission by the landlord, which amounts to a failure to undertake the duties to the tenant under the lease to maintain or repair the premises. Giving this duty wider construction would impose a considerable burden on the landlord to rectify matters that are under the control of the tenant.

Conclusion

This case is likely to be welcomed by landlords and insurers, as it adopts a strict interpretation of the duty of care under the DPA. However, both landlords and practitioners should still be mindful of the duty of care obligations under the DPA and the circumstances in which these could arise.

For further advice on the issues highlighted in this article, or for assistance with any commercial property matter, please contact us.

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