Neutral Citation Number: [2017] EWCA Civ 439

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DNISION

ms HONOUR JUDGE PARKES oc

HO12X05244

Before:

LORD JUSTICEMcFARLANE

LORD JUSTICE LEWISON

and

LORD JUSTICEMcCOMBE

Between:

a e No: B3/2016/0939

Royal Courts of Justice

Strand, London. WC2A 2LL

Date: 21/06/2017

MEGANLOUISEDODDAppellant(widow and executrix of the estate of P UL JAMESDODD,

deceased)

- and-

(1)RAEBARN ESTATESLIMITED

(2)RAEBARN ESTATES (NO 2)LIMITED

(3)RAEBARN ESTATES (NO3)LIMITEDRespondents

Howard Stevens QC and Andrew Young (instructed by Irwin Mitchell LLP) for the Appellant

Graham Eklund QC and Colm Nugent (instructed by Keoghs LLP) for the Respondents Hearing dates: 13 June 2017

Approved Judgment

Lord Justice Lewison:

  1. Mr Paul Dodd was on honeymoon in London on Christmas Day 2007. He and his wife Megan were staying in Flat 2 on the first floor of a building at 194-196 Kensington Park Road, following ten days spent touring Europe. They celebrated Christmas in the flat with friends. At about 9.15 p.m. Mr Dodd went downstairs with some of his friends to have a smoke. He lost his footing on the lowest flight of stairs, and in falling suffered catastrophic head injuries from which he never recovered. Sadly,aftersometwoyearsinacoma,hediedinhisnativeAustralia.
  1. There are three tiers of property interests in thebuilding:

i)The freehold. This was acquired in 1987 by Raebarn Estates Ltd and transferred to Raebarn Estates (No 2) Ltd and Raebarn Estates (No 3) Ltd in 2007.Irefertothefreeholdersas"Raebarn".

ii)The head lease. This was a 125 year lease of the upper parts of the building (including the staircase and entrance hall) granted by Raebarn to Southwind Holdings Ltd in 1987 and assigned to 194-196 Kensington Park Road 1995 Ltd in 2005. I refer to them collectively as the "head lessee". The property comprised in the head lease included "all additions alterations and improvements to the premises made at anytime".

iii)The underleases of the individual flats in the upper parts of the building. The lease of flat 2 was held by MrPereira.

  1. Mrs Dodd has brought claims against the holders of all three tiers of interest. The sole question on this appeal is whether Raebarn, as freeholders of the building, are potentiallyliableforhisinjuriesundersection4oftheDefectivePremisesAct1972.
  1. A number of tenant's covenants in the head lease are relevant to the arguments before us. Clause 3 (3)provides:

"At the cost and charge of the Tenant from time to time and at all times during the term to put and thereafter throughout the term to keep the premises . . . in good and substantial repair order condition and decoration including the remedying of any inherent defect to the premises as and where necessary to keep the premises in such condition ..."

  1. Clause 3 (7)provides:

"The Landlord may give or leave notice in writing upon the premises specifying any defaults defects decays wants of reparation or amendment found upon the premises for the TenanttoamendandrepairthesameandtheTenantwillwithin the space of ninety days next after such notice well and substantially repair mend and make good the same according to the covenants and provisions of these presents AND if the Tenant shall at any time make default in the performance of any covenant hereinbefore contained for or relating to the

repair reinstatement or decoration of the premises it shall be lawful for (but not obligatory for) the Landlord . .. to enter upon the premises and repair reinstate or decorate the same at the expense of the Tenant in accordance with the covenants and provisions of these presents ..."

  1. Clause 3 (8) (a) contains a covenant by the head lessee to execute all such works as are required by Acts of Parliament local bye-laws and regulations. Clause 3 (9) contains a covenant against altering the structure of the premises without the landlord's consent. Clause 3 (12) contains a covenant by the head lessee to comply in all respects with the requirements of all planning permissions so far as they relate to or affect thepremises.
  1. In 1988 the head lessee applied to the local planning authority for planning permission to reconfigure the flats in the upper part of the building. At the time of the demise there had been two staircases leading to the upper parts: one in 194 and the other in 196. The plans submitted in support of the application showed that part of the scheme involved the removal of both the existing staircases serving the upper parts and their replacement with a single new one in 196. Notes on the relevant plan showed that the new flight of stairs from the ground floor to the first floor would be equipped with a handrail and that the stairs themselves would have a maximum rise of 190mm and a minimum going (or tread) of 240mm. Planning permission was granted for the reconfiguration "as shown on the submitted drawings". However, when the new staircase was constructed it is likely that the handrail was omitted on the flight of stairs from the ground floor to the half landing below the first floor, and the stairs themselves were steeper and shallower than the dimensions shown on the submitted plan. It also seems probable from a comparison between the lease plan and the plans submitted to the local planning authority that the replacement staircase was not in the same position as the old staircase: hence its comparative steepness. The staircase from the ground floor to the half landing was enclosed by two walls, as it had beenbefore.
  1. Although no document is in evidence, it is part of Mrs Dodd's pleaded case that Raebarn gave written consent to the alterations under clause 3 (9) of the head lease. It is also part of her case that the old staircase in 196 that was replaced in the course of the alterations had been equipped with a handrail on the flight going from the ground floor to the half landing below the first floor. For the purposes of this appeal we must assume that both these parts of her case are factuallycorrect.
  1. An alternative theory is that the replacement staircase did have a handrail at the time of the reconfiguration, but that it was subsequently removed at some point between 1988 and 1995. There is no direct evidence to that effect, but it is argued that the judge was wrong to dismiss that theory summarily as "speculative andfanciful".
  1. It is common ground between the experts that the lack of a handrail and the steepness of the flight amounted to a breach of the Building Regulations in force at the time of thealterations.
  1. Raebarn applied for summary judgment against Mrs Dodd on the ground that her claim had no real prospect of success. That application succeeded before Master Leslie. Her appeal against Master Leslie's decision was heard by HH Judge Parkes QC. The case against Raebarn was put on various grounds before the judge.He

rejected them all, dismissed the appeal and gave summary judgment in Raebarn's favour. His judgment is at [2016] EWHC 262 (QB), [2016] PIQR P16. The only surviving ground on this second appeal is that Raebarn is said to be liable under section 4 of the Defective Premises Act 1972. The relevant parts of that section read asfollows:

"( 1) Where premises are let under a tenancy which puts on the landlord an obligation to the tenant for the maintenance or repair of the premises, the landlord owes to all persons who might reasonably be expected to be affected by defects in the state of the premises a duty to take such care as is reasonable in all the circumstances to see that they are reasonably safe from personal injury or from damage to their property caused by a relevantdefect.

(2)The said duty is owed if the landlord knows (whether as the result of being notified by the tenant or otherwise) or if he ought in all the circumstances to have known of the relevant defect.

(3)In this section "relevant defect" means a defect in the state of the premises existing at or after the [commencement of the tenancy] and arising from, or continuing because of, an act or omission by the landlord which constitutes 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 thepremises...

(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; but the landlord shall not owe the tenant any duty by virtue of this subsection in respect of any defect in the state of the premises arising from, or continuing because of, a failure to carry out an obligation expressly imposed on the tenant by the tenancy."

  1. It can be seen from my description of the relevant covenants that liability for repair rests on the head lessee. The freeholder is not liable to the tenant for carrying out any description of maintenance or repair. It follows that section 4 (1) of the Act cannot apply directly. That is why the case is confined to section 4(4).
  1. It was rightly accepted below that if section 4 (4) applies Mr Dodd was within the class of person to whom the duty under section 4 (1) is owed. It is true that the last fivelinesofsection4(4)statethat"thelandlordshallnotowethetenantanydutyby

JudgmeolAuprovcdbytl1ccourtrorl111ndlngdowu,Dodd vRaebarn

virtue of this subsection in respect of any defect in the state of the premises arising from, or continuing because of, a failure to carry out an obligation expressly imposed on the tenant by the tenancy." However, that part of section 4 (4) does not impinge on a duty owed to a person who is not the tenant: Boldack v East Lindsey DC (1999) 31 HLR 41. The reason for the exclusion of liability to the tenant alone is that the landlord should not become liable to the tenant himself for the consequences of a defect arising from his own default. This is plain from the Law Commission report that preceded the 1972 Act (Civil Liability of Vendors and Lessors for Defective Premises (Law Com No 40) para68).

  1. The real debate between the parties, both in this court and before the judge, was whether the lack of a handrail on the flight of stairs between the ground floor and the half landing was a "relevant defect" as defined by section 4 (3). In determining this question the first step is to make the assumption required by section 4 (4) that to the extent that the landlord has the right to enter the premises to carry out any description of maintenance or repair, he is to be treated for the purposes of section 4 (1) as if he had an obligation to carry out that description of repair or maintenance. The second question is whether the lack of a handrail can be said to be a "a failure by [the landlord] to carry out his [deemed] obligation to the tenant for the maintenance or repair of thepremises."
  1. It is important to note that the deemed obligation that arises under section 4 (4) is limited to the description of repair or maintenance for which the landlord has the right to enter: Lee v Leeds CC [2002] EWCA Civ 6, [2002] 1 WLR 1488 at [70]. The only right of entry to repair on which Mrs Dodd relies is the right given by clause 3 (7). That right arises if, and only if, there is an antecedent breach of covenant by the head lessee; and the right is a right limited to rectifying breaches of "any covenant hereinbefore contained"; that is to say a breach of clause 3 (3). If there is no breach of clause 3 (3), Raebam has no right to enterunder clause 3 (7).
  1. It is clear that the phrase "maintenance or repair" is to be interpreted according to the meaning that it has in the general law of landlord and tenant, and does not extend to defectsinageneralsense.Theobligationtorepairdoesnotariseunlesstheobjectsin respectofwhichitisimposedareoutofrepair:Leeat[81].Thusthe reachoftheduty arising under section 4 is no longer than the reach of the covenant to repair owed (or treated as being owed) by the landlord in any particular case: Alker v Collingwood HousingAssociation[2007]EWCACiv343,[2007]1WLR2230at[11].
  1. It is also clear that a duty to repair cannot be equated with a duty to make safe. In Alker the problem concerned the glass panel in a front door. It was made of ordinary glass rather than safety glass. Although it probably complied with building regulations at the time it was installed, it was nevertheless known to be a safety hazard. The claim under the 1972 Act failed. As Laws Ll put it at[14]:

"There is ... much learning on this dichotomy between maintain and repair. It is not necessary to go into it in this case. No doubt the two concepts overlap. Neither of them, however, can in my judgment possibly be said to encompass or to include a duty or obligation to make safe. Moreover a duty to keep "in good condition", the words used here, even if it encompasses a duty to put into good condition, again cannot encompass aduty

to put in safe condition. 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 dangerousfeature."

  1. One of the examples that Laws Ll gave was a very steep stairway with no railings. That example came to be tested before this court in Sternbaum v Dhesi [2016] EWCA Civ 155, [2016] 2 P CR 4, decided a month after the judge had given judgment in our case. Apart from the fact that the injuries concerned in that case had nothing like the catastrophic consequences for Mr Dodd, the facts bear a remarkable resemblance to the assumed facts of our case. The property concerned was a Victorian house in Leamington Spa. The back staircase was steep and was enclosed by walls on both sides. There may have been a bannister on the lower flight which had been removed at some stage in the building's history. However, neither at the commencement of the tenancy nor at the time of the accident was there any handrail in place. Ms Sternbaum lost her footing on the stairs and suffered a nasty injury. The trial judge found that the accident would not have happened had there been a handrail. This court held that the landlord had no liability under section 4 of the 1972 Act because it could not be said that the staircase was out of repair even though it was unsafe. The argument for Ms Sternbaum was that when the bannister was removed, and the wall fitted, an essential safety feature was removed. No handrail was fitted in its place. From that point on the staircase was in a "worse" condition and in a state of disrepair so that the landlord was under a duty to repair. There was no change "in entity" as there would have been in major conversion works so that the "clock would start again". The bannister had simply been removed and not replaced. A landlord cannot comply with his duty to his tenant to keep the premises in repair by simply removing an essential part of the structure.
  1. This court unanimously rejected that argument. Hallett Ll said at[29]:

"The photographs show a staircase of a kind that one might find in hundreds of old buildings across the country. It looks very much like one of the examples given by Laws Ll in Alker of a hazard that is not in a state of disrepair, namely "a very steep stairway with no railings". Given the narrowness of the tread and the steepness of the flight of steps, particularly where it turns the corner, I have little doubt that, without a handrail, it was a hazard. But, as unsafe as it may have been, there is nothing about it that, to my mind, could possibly justify the description of being in disrepair. The walls and stairs themselves are apparently sound and there is nothing wrong with the floorcovering."

  1. Briggs l.J said at[36]:

"Like my Lady, I consider that the photographic evidence about the relevant staircase (which was all the evidence available to the recorder) shows clearly that by no reasonable useof

language could the staircase be said to have been in disrepair . It was simply an old fashioned, steep, narrow staircase without bannisters or hand rails, both at the time of the accident and at the commencement of the tenancy. The fact that at some date in the past it may well have had an open void on its left hand side (where there is now a wall) protected by a bannister, is in my view neither here northere."

  1. Moylan J said at[38]:

"However, the state of the relevant staircase in this case, following whatever works or alterations had in fact taken place, was not such as to cause it to be in disrepair."

  1. As I have said, on the facts of that case there was no handrail in place at the start of the tenancy. The start of the tenancy was the "relevant time" for the purposes of section 4 (3) of the 1972 Act. The absence of a handrail at that time was, as I read the judgments of Hallett and Briggs UJ, an additional reason for their decision. Hallett U put it thus at[30]:

"Furthermore, there never had been a handrail on the staircase at any relevant time. To place the respondent landlord under an obligation to fit a handrail in these circumstances would amount to placing him under an obligation to improve the premises or make them safe. This would be beyond the reach of his covenant, just as it was in Alker."