Elizabeth Rogerson v Bolsover District Council  EWCA Civ 226
30th May 2019
Whether s.4 of the DPA 1972 requires a landlord to implement a system of regular inspection is fact specific, one aspect is the landlord’s knowledge as to any likely or known risks in the property.
While mowing her lawn a local authority tenant stepped on a manhole cover in her garden, the cover gave way resulting in the tenant’s leg and body passing into the hole beneath causing her injury. The manhole cover was owned by Seven Trent Water Limited. The tenant produced expert evidence that the inspection cover was a clear and obvious risk in light, inter alia, of its age and condition. The landlord did not provide any expert evidence.
- Did s.4 DPA 1972 require the landlord to implement a system of inspection
- Was reasonable care taken in carrying out the inspections
Deputy District Judge Haskey held that it was for the landlord to show that it had complied with the duty of care imposed by s.4 (1) DPA 1972. The judge found that the landlord had not known of the defect to the manhole cover but should have done and that the defect would have been revealed by a pressure test. The judge accepted the opinion of the tenants expert and held that the manhole cover was a clear and obvious safety risk. The judge ordered awarded the tenant £15,082.88.
Bolsover District Council appealed to a Circuit Judge. On appeal His Honour Judge Owens QC did not interfere with the District Judge’s findings of fact but held that the tenant had not established a breach of s.4 (1) DPA 1972 as the landlord’s inspections had been carried out with reasonable care. Ms Rogerson appealed to the Court of Appeal.
Decision on appeal
s.4 (1) DPA 1972 provides that 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 relevant defect.
A landlord was not necessarily required to implement a system of regular inspection in order to satisfy the requirements of s.4 DPA 1972, Clarke v Taff-Ely Borough Council (1983) 10 HLR 44 did not support a general proposition that s.4 (1) required a program of inspections. Whether a landlord was required to conduct such inspections depended on the facts of each case, one factor was whether the landlord has any knowledge of likely or known risks at the property. In this case there was insufficient evidence to say that the landlord had been obliged to carry out regular inspections.
However, on the facts, the landlord had conducted inspections, one the previous summer at the start of the tenancy, the other as part of a 10- year stock review.
The nature and extent of the landlord’s inspections was not readily apparent. The District Judge had been entitled to find that the inspection covers represented a clear and obvious safety risk. Having accepted the tenant’s explanation as to how the accident occurred the evidential burden had shifted to the landlord. A pressure test would have revealed the defect and it was a defect that the landlord would have been aware had the inspection been properly carried out.
The Circuit Judge had erred in finding that there was no duty on the landlord to inspect to ensure that relevant defects did not develop, s.4 (1) provides that the duty is owed of the landlord ‘ought in all the circumstances to have known of the relevant defect’. The Circuit Judge had imposed an unworkable limitation on s.4.
The concurring Judgement of Lord Justice Males suggests that the Circuit
Judge’s ultimate decision may in fact have been induced by a poor-quality
transcript of the trial before the Deputy District Judge.
It remains the case that whether a system of regular inspections is
required is fact specific and in reaching a conclusion as to the necessity of
the inspection the court will have regard to the known or likely risks at the
property. An overly restrictive approach as to the extent of s.4 would be contrary
to its purpose.
The case emphasizes the risk for parties who disagree with the expert
evidence of another party in not calling their own evidence.
Expertise: Residential Landlord & Tenant
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