EDWARDS v KUMARASAMY (2016) UKSC 40
On 1 July 2010 the Appellant was taking rubbish from his flat to the communal dustbins outside, when he tripped on an uneven paving stone. He sustained an injury to his right hand and right knee.
He brought his claim against the landlord of the second floor flat he lived in (the Respondent). The flat was in a block. The Respondent did not own the block but had sublet his flat to the Appellant. The Appellant claimed that the Respondent was in breach of S.11(1)(a) and S11(1A)(a) of the Landlord and Tenant Act 1985 as he had failed to keep the paved area in repair.
At first instance, Deputy District Judge Gilman found in favour of the Appellant and awarded damages of £3,750. The Respondent accepted the decision on fact and quantum but appealed against the conclusions of the DDJ that he was liable as a matter of law. That appeal was allowed by the Circuit Judge, overturning the original Judgment and indicating that the Respondent was not liable as he did not have knowledge of the defect.
The Appellant then appealed to the Court of Appeal, challenging the finding that the Respondent was not liable and the Court of Appeal allowed the appeal. The Respondent appealed again, now reaching the Supreme Court, and seeking a determination of 3 questions, all of which had to be answered in the affirmative in order for the Appellant to succeed:
- Is the paved area part of the structure or exterior of the building such to bring it within the ambit of S11?
- Does the Respondent have an estate of interest in that part of the building, as required by S11?
- Could the Respondent be liable to the Appellant even without notice of the disrepair?
The Court held that the definitions in the Landlord and Tenant Act must be given their ordinary English meaning. In that way, a pathway, although a means of access to a building, cannot be part of the exterior of that building. The Appellant therefore failed at the first question, and his appeal could not therefore be successful. Nevertheless the Court went on to consider the remaining 2 questions.
Again the word “interest” is to be given its proper meaning in the context of a property issue and as the Respondent was granted a right of way over the path in the head lease, he therefore had an interest in that land. He did not have an estate in the land and was not in possession so this “interest” was not sufficient to displace the requirement for notice (see below).
Since the case of Makin v Watkinson (1870), it has been a generally accepted principle that a landlord is not liable under a repair covenant to his tenant, for premises which are in the possession of the tenant, unless and until the landlord has notice of the disrepair. The main reason for this is that the landlord has no knowledge of the condition of the property to be able to ensure compliance with the covenant.
The Court considered whether this rule applied to common parts of a block of flats and held that it would apply to the disrepair of parts which were included within the property demised to the tenant.
If the tenant is not however in possession of the location in disrepair, and the landlord is, then the requirement for knowledge does not apply as the landlord has more and free access to that area.
The present situation however was more complicated as the location of the accident was not in the possession of either the landlord or the tenant, although it was property over which they each had a right of way. The Court concluded however that as tenant uses the common parts every time he enters or leaves the flat, he is in the best possible position to know about any disrepair. The Supreme Court therefore held that the rule did apply to this case and the Respondent could not be held liable unless and until he had knowledge.
The Court considered finally that if the Respondent had owned the building, then the rule would not apply because the landlord would be in possession of the communal parts, but this wasn’t a reasoned conclusion as it did not arise as an issue in this case.
MG v CHIEF CONSTABLE OF NOTTINGHAMSHIRE CONSTABULARY AND MITIE LANDSCAPES LIMITED (2016)
The Claimant, an employee of the First Defendant, was walking along a footpath outside his place of work on 13 February 2013, when he slipped on snow and ice, fell and landed on his shoulder.
The footpath was maintained by the Second Defendant. The Claimant brought his claim against the First and Second Defendants alleging failures to risk assess, provide a safe means of access, and failing to grit.
Liability was agreed, split equally between the Defendants, with a reduction of 10% for contributory negligence.
The Claimant sustained a rotator cuff tear, requiring physio and arthroscopy. He made a full recovery within 2 years. He was awarded £20,000 broken down as approximately £11,000 for general damages and £9,000 for special damages.