It was clear from the 46 or so visits by the Defendant and its contractors that no individual had considered the lack of banisters to be a hazard. Despite this the Defendant was found to be on notice of the defect. The case thus serves as a useful reminder to landlords to carry out appropriate inspections and/or to provide for contractors to report on all issues within the premises - whether those issues have affected their ability to carry out their work or not.
Landlords should note the interpretation of a structure under the Defective Premises Act 1972. It is not simply load bearing elements but those essential to the appearance, stability and shape of the premises. Floors are naturally part of the structure and for a two-storey house, the floors are connected by the staircase, making that an essential feature of the house. Building regulations confirm banisters as an integral part of a staircase, which completes the picture and makes the lack of banisters a required structural repair.
Furthermore, it was irrelevant that the tenant had created the defect, presumably preferring the open plan effect. The landlord was within its rights to require the tenant to replace the banisters. Landlords should not, therefore, be afraid to address such alterations with tenants, even if they may initially seem aesthetic in nature.
In February 2008, the then 42 year old Claimant fell down a staircase in a local authority owned property, whilst carrying out maintenance work to the central heating. The Claimant worked for an engineering company which had a long-term maintenance contract with the Defendant management company, through which the local authority owned and managed its housing stock.
The Claimant was working between two floors, which involved moving by way of a staircase which did not have a banister on its open side. On hearing a loud noise, the Claimant descended the staircase quickly and his left foot slipped, falling into an open area beside the staircase and injuring his left ankle. The banister had been removed in 1991 by the existing tenant.
The Claimant alleged that the Defendant was negligent under section 4 of the Defective Premises Act 1972 (DPA) for failing to repair the banisters at the property. The Defendant denied liability on the basis that the Claimant was "the author of his own misfortune" – he should not have carried out the work given the danger to him that the absence of banisters created. He should have informed the Defendant and declined to work. The Defendant pleaded contributory negligence in the alternative.
The Defendant accepted responsibility for any potential liability on behalf of the local authority under the DPA.
Judge Thornton QC was satisfied it was not unsafe for the Claimant to carry out his work: "a lawful visitor to a domestic property is entitled to use that property unless it has become so structurally unsafe that it is a dangerous structure into which no one may lawfully venture".
Thornton J observed that none of the previous visits by maintenance workers had led to a report being made to the local authority that the banisters were missing and none had refused to work – even though each visitor would have been required to undertake a risk assessment of potential hazards. The Claimant had applied his training and common sense. Whatever risks and dangers were created by the absence of the banisters, it was not reasonable to expect the Claimant to decline to undertake the maintenance work until the banisters had been reinstated.
Thornton J dismissed the suggestion of contributory negligence - the Claimant was not guilty of any unreasonable lack of care for his own safety. He was undertaking potentially hazardous maintenance work to a boiler which needed urgent attention. His slip did not occur as a result of an attempt to descend the stairs in a "foolhardy manner" – the problem was that there was an absence of a structural feature.
With regard to liability under s.4 DPA, Thornton J identified the following sub-issues:
- The banisters, in being an integral part of the staircase, were part of the structure covered by the Defendant’s express repairing obligation to keep it (and the exterior) in proper working order.
- The absence of the banisters was a "relevant defect" in the state of the property, which was continuing due the Defendant’s failure or omission to replace it (or to insist on its replacement by the tenant).
- The Defendant’s repairing obligation was wide enough to extend to all types of disrepair, including those caused by the tenant.
- The Defendant had been provided with sufficient notice of the defect. Each visit by workmen (which included direct employees of the Defendant) provided notice. Furthermore, notice did not need to be in writing – the tenant had given notice of the defect by giving access to the property. The Defendant should have also carried out its own inspections.
Finally, Thornton J accepted that the Defendant had an express right under the DPA to enter the property in order to inspect and repair the banisters over any time during the tenancy. It was, therefore, liable for not carrying out those repairs, even in the absence of notice.
Judgment for the Claimant.