Relevant defects: functionality is not the test

23 Jun 2017

Dodd v Raebarn Estates Ltd & Others [2017] EWCA Civ 439

The ultimate aim is for a building to serve its intended purpose but if this doesn’t happen, does it mean it is in disrepair? This can be a more difficult question to answer than you would think when it comes to determining the scope of a landlord’s obligation to repair.

It’s an issue that the courts frequently have to wrestle with and the Court of Appeal has done so again in Dodd v Raebarn Estates specifically as to what is a ‘relevant defect’ for the purposes of a claim under section 4 of the Defective Premises Act 1972 (‘DPA’) so as to give rise to a landlord’s obligation to repair.

The facts
On Christmas day 2007, Paul Dodd was leaving a first floor flat in Notting Hill, when he fell down the stairs and suffered a major brain injury. Tragically he died some two years later. The claimant, his widow and executor, brought claims on her own behalf and on behalf of his estate alleging that defects in the staircase, in particular the lack of a handrail, were responsible for his fall.

Raebarn Estates was the freehold owner of the three-storey property.  In 1987 Raebarn granted a headlease of the upper floors to a developer.  The developer converted those floors into self-contained flats whilst the ground floor and basement remained as retail premises.  The available evidence indicated that the handrail was omitted at the time of the rebuilding of the flats in 1988.

Claim under the Defective Premises Act 1972
The claimant pursued a number of claims against Raebarn as landlord including that it had breached its duty of repair under the DPA. She alleged there had arguably been a handrail at the time of the headlease; after the staircase was replaced there was no handrail in breach of planning permission and Building Regulations, or it was later removed. Relying on the High Court case of Hannon v Hillingdon Homes Ltd, she claimed that the absence of a handrail was a defect which could be said to arise from failure by Raebarn to comply with its obligation to repair.

The crucial issue between the parties was whether the lack of a handrail was a relevant defect for the purposes of the DPA so that the landlord’s obligation to repair was triggered. Arguing that it was not, Raebarn pursued a successful application for summary judgment and the claimant’s claim was struck out. Her appeal to the High Court was dismissed by HHJ Parkes QC reiterating the findings at first instance albeit reluctantly given the tragic circumstances of the case.

The judge commented that the duty of repair under the DPA is not a duty to make safe, it is limited to a duty to put right something which is in a worse condition than before. Here there was no evidence that the staircase was other than well-constructed, it was probably unsafe but it was not in any sense out of repair.  So the claim under the DPA failed because the developer’s failure to install a handrail in 1988 did not constitute a ‘relevant defect’ within the meaning of s.4 (3) of the Act, in that it did not arise out of a failure to repair or maintain – it was constructed that way.  Even if that construction was arguably defective in a wider sense, it did not trigger the landlord’s liability under the Act.

The judge accepted that the position might have been different had there been any evidence that a handrail had been removed after the rebuilding of the flats in 1988. Removal then might have been a relevant defect under the DPA, following Hannon but there was no evidence a handrail was installed and later removed.

Decision of the Court of Appeal
The claimant pursued a second appeal to the Court of Appeal. Notwithstanding his sympathy for the claimant LJ Lewison agreed with the decisions below and indeed went further. He reiterated there was no direct evidence there had been a handrail that was subsequently removed (rejecting the possibility that something may turn up on cross examination of Raebarn’s witnesses as being enough to overturn the summary judgment) but then went on to consider whether, in any event, it would make any difference if the handrail had been removed sometime after the rebuilding of the flats.  Relying on Hannon the claimant had argued it would.

LJ Lewison disagreed. He criticised the judgment in Hannon commenting that “…the test he [Judge Thornton] appears to have applied is one of functionality, which is not the correct test. Part of a building may function inadequately but it does not follow that it is in disrepair.”

The argument that the lack of handrail  constituted a relevant defect because it did not comply with building regulations was also robustly rejected – the first hurdle is whether there is disrepair – if there is no disrepair then questions of compliance with building regulations simply do not arise.

What this means for you
The Court of Appeal judgment reiterates that section 4 of the DPA is not to be given such a wide construction so as to impose a substantial burden on a landlord to put right matters which are under the control of the tenant.

In casualty claims, this judgment assists with a defence to cases brought under section 4 where a tenant alleges that their accident was caused by the premises being in a state of disrepair as a result of non-compliance with building regulations, breach of planning permission or lack of functionality. Even though there may be a potential hazard in terms of safety, it supports the argument that this does not necessarily mean that the premises were in disrepair.

So as we’ve commented before and as echoed by this judgment:

  • Hannon is not authority for the proposition that the lack of a handrail is a relevant defect in itself – as LJ Lewison commented, “it is by no means self-evident” that what happened here meant that the staircase was in disrepair.  In Hannon, it was found that the bannister was part of the structure of the premises and the key factor was its removal by the tenant, meant that the structure was no longer in repair. The scope of the principles established by Hannon are now under real question in the light of this judgment;
  • The obligation to repair does not arise unless the object concerned is out of repair;
  • Breaches of planning permission and building regulations do not alter the position. Here the stairs were steep and there was no handrail, which probably made it unsafe, but it was not in any sense out of repair;
  • Potential dangerousness is not the test under the DPA although it is not advocated that landlords should leave dangerous premises in that condition if they know about it. Based on this judgment neither is the test one of functionality.

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to clients of BLM. Specialist legal advice should always be sought in any particular case.

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