“Knowledge is power” (Francis Bacon) but what does section 4(4) of the Defective Premises Act 1972 actually mean?
PP v Caerphilly County Borough Council
Here, the Claimant brought a claim for compensation for personal injury against her landlord, Caerphilly County Borough Council (the “Council”), having sustained injury in her Council owned property. Allegations pursuant to Section 4 of the Defective Premises Act 1972 (the “DPA”) were made, together with negligence.
The importance of the case lay in the parties’ differing interpretation of section 4(4) of the DPA and, in particular, whether a landlord can be liable for personal injury caused by a relevant defect in its premises, notwithstanding that it did not have constructive, implied or imputed knowledge of the same.
It may assist, or not, to recite the relevant part of section 4(4):
"Where premises are let under a tenancy which expressly or impliedly gives the landlord the right to enter the premises to carry out any description of maintenance or repair of the premises, then, as from the time when he first is, or by notice, or otherwise, can put himself in a position to exercise the right, and so long as he is, or can put himself, in that position, he shall be treated for the purposes of subsections (1) to (3) above (but for no other purpose) as if he were under an obligation to the tenant for that description of maintenance or repair of the premises…"
Section 4(1) contains the double reasonableness test; ie – a landlord is under a duty to take such care as is reasonable in all the circumstances to keep all persons who might be affected by defects in the state of the premises to be reasonably safe from personal injury caused by a relevant defect. Section 4(2) further qualifies this by stating that the duty is owed if the landlord knows (whether as the result of being notified by the tenant or otherwise) or ought, in all the circumstances, to have known of the relevant defect. Section 4(3) defines a “relevant defect” as one which the landlord is under a duty to repair.
The facts of the case were simple.
The Claimant had been a tenant of a Council flat since 29 March 2010. On 12 May 2010, she was descending a set of internal stairs whilst using a handrail for support. As she did so, the handrail came away from the wall, causing her to fall and suffer a sprain to her ankle.
The parties agreed that the handrail constituted a “relevant defect” for the purposes of section 4(3) of DPA, applying the case of Hannon v Hillingdon Homes Ltd (2012).
The Claimant accepted that she was not aware of any issues with the handrail prior to her accident, despite using it on a daily basis. She accepted, therefore, that this was a latent, as opposed to a patent, defect, which was not ascertainable or knowable prior to the handrail giving way.
However, Counsel on behalf of the Claimant contended that the wording of Section 4(4) meant that where a landlord had allowed itself a right of re-entering the premises (as the Council had done here), it was liable for the defect, notwithstanding that it did not, or could not, have known of it.
The case was dealt with at first instance by Deputy District Judge Holmes at Blackwood County Court, who, whilst finding that the accident did occur as alleged, dismissed the claim on the basis that section 4(4) required the Court to consider whether the Council had met the two stage reasonableness test set out in section 4(1). In doing so, it found that the Council was not in breach of its duty to the Claimant.
Immediately following Judgment, the Claimant made an Application for permission to appeal, which, unusually, DDJ Holmes granted on the basis that he considered the issue to be an interesting one.
The Appeal subsequently came before His Honour Judge Seys-Llewellyn QC at Cardiff Civil Justice Centre.
At the Appeal Hearing, the Claimant maintained her position that section 4(4) did not require the Court to consider whether or not the Council had knowledge or the means to know of the defect. By the mere fact that there was a relevant defect in the property and the fact the Council had allowed itself a right in the tenancy to enter the premises to carry out repairs meant that it became automatically liable. If the duty was simply one of reasonable care, as wholly defined by section 4(1), there would have been no need to include section 4(4). It could not be a defence that the Council knew that the defect was a latent one as this would fly in the face of the clear language of section 4(4).
The Claimant sought to rely on various extracts from cases where, arguably, the facts were very different than in the present case, since they involved patent defects.
The Council argued that in a nutshell, the Claimant’s case was that the effect of Section 4(4) was to impose strict liability on landlords, in respect of all defects, be they patent or latent, in circumstances where the tenancy agreement reserved a right of re-entry for the landlord. It was submitted that it was clear from subsections (2) and (3) that ‘knowledge’ of the defect was an essential element of the obligations imposed upon the landlord. It could not have been the intention of the drafters to override the ‘knowledge’ requirements of section 4(2), which is clearly framed with reference to the landlord having actual knowledge. The Court still had to apply the test in section 4(1); ie – the duty on the landlord remained, not withstanding the wording of section 4(4), to take such care as is reasonable, in all the circumstances, to see that all persons who might reasonably be affected by defects in the premises are reasonably safe from personal injury. Therefore, it was still relevant and appropriate to consider the level of knowledge the landlord had prior to the alleged accident.
Interestingly, neither party could identify any previous case law which dealt directly with this point, despite the statute being over 40 years old.
HHJ Seys Llewellyn QC found that the purpose of section 4(4) was to render a landlord liable where he has a right to repair and does not exercise it, therefore, transforming the terms of the agreement into an obligation to repair. He further found that subsections (1) to (3) should be read together with subsection (4).
Accordingly, HHJ Seys Llewellyn QC found that DDJ Holmes was not wrong to take into account whether there was knowledge, or the means of knowledge, of the defect in assessing whether there was liability under section 4(4) and agreed with his construction of the statute. The Claimant’s Appeal was, therefore, dismissed.
This Judgment dealt with a far from straight forward subsection and HHJ Seys-Llewellyn considered decisions and extracts from various cases in reaching his findings.
The writer considers this to be a Judgment of common sense, since a provision imposing liability upon landlords for personal injury from relevant defects, regardless of whether they knew or could ever be in a position to know of it, akin to a strict liability scenario, would surely dissuade individuals from becoming landlords and letting out premises in the first place.
This case will hopefully assist Defendant landlords in cases where similar arguments are made on behalf of Claimants in respect of the interpretation of section 4(4).
