The Court of Appeal upheld the High Court's strict interpretation of Section 4 of the Defective Premises Act 1972 (the Act). It was found that although stairs were potentially dangerous, that is not the test for identifying a ‘relevant defect’ under section 4 of the Act.
Under the Act, a landlord owes all persons who will be affected by defects in the state of the premises a duty to protect them from personal injury or from damage to their property caused by a 'relevant defect'. This section 4 duty arises where the landlord is under an obligation to repair or maintain the premises. However it is not wide enough to encompass an obligation to remedy defects in a more general way. The repair obligation under the Act will only arise if the article concerned was out of repair and the staircase itself in this case was well constructed.
Raebarn were the landlords of a mixed use property. The upper floors had been leased to a developer who had installed a staircase as part of refurbishment works.
The Claimant, a visitor at the premises, fell down the stairs and subsequently died of his injuries. A fatal accident claim was brought against the landlord of the property and five others, under both the Occupiers Liability Act (OLA) and section 4 of the Act. It was argued that the staircase had a number of relevant defects, including a lack of handrail and narrow treads, which amounted to failures to comply with planning permission terms and Building Regulations.
At first instance and on appeal to the High Court, the Defendants successfully applied for summary judgment. The landlord was found not to be the occupier of the staircase, which had been demised to a tenant. Accordingly, as the landlord had no residual control or owed any duty of care in relation to the replacement staircase, the claim under the OLA failed.
The staircase was also found not to be 'defective' under section 4 of the Act.
The Court of Appeal upheld the decision of the High Court and found that the duty to repair under section 4 is not the same as a duty to make safe. This was considered to be a more limited duty to rectify something that was in a worse state than at some time previously.
Whilst the appellate court acknowledged that such failures may amount to a defect in the premises, in order for the section 4 duty to arise, the defect must arise due to an act or omission by the landlord, constituting a failure by him to carry out his duties to the tenant to maintain or repair the premises. This was not the position in this case, as the staircase was well constructed. The lack of handrail did not in itself amount to disrepair.
What can we learn?
- The case has given a strict interpretation of the duty under section 4 of the Act. It should be welcomed by landlords and insurers.
- As the Appellate Court stressed, giving section 4 wider construction would impose a substantial burden on a landlord to put right matters that are under the control of the tenant.
- A landlord has a duty to maintain and repair, however a duty to repair cannot be equated with a duty to make safe.
- The case can be considered with the recent case of Sternbaum v Dhesi  EWCA Civ 155 which also found that an absence of a bannister did not invoke the section 4 duty.
- On appeal to the High Court an alternative theory was raised by the Claimant that the new staircase did in fact have a handrail which was subsequently removed. The judge rejected this theory as being 'speculative and fanciful' with no direct evidence to support it. The Court of Appeal confirmed that even if the judge had erred in his decision, this would not have made a difference to the outcome of the case. Whilst a building may function inadequately, it did not follow that it was in disrepair. Accordingly it was not ‘self-evident’ that a staircase which had been deliberately modified was out of repair.