No Duty to Repair Uneven Driveway

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19 December, 2017

Powell v Lancaster City Council

The Claimant alleged that during the course of his employment as a paramedic he attended a property owned by the Defendant. It was dark and as he approached the property carrying a defibrillator he twisted his ankle on the driveway suffering a personal injury to his ankle.

The claim was brought pursuant to section 4 of the Defective Premises Act 1972. The Claimant argued that the Defendant had failed to keep the premises in good repair and had allowed the property to fall into and remain in a defective state. The Claimant also argued that the Defendant failed to have in place or operate any adequate inspection or repair.

The Defendant put the Claimant to proof and required the Claimant to prove that he fell as a result of a defect/disrepair in the demised property so as to engage the duty under the Defective Premises Act 1972. The Defendant contended that whilst the photographs of the Tenant's driveway did show a drop/ difference in levels which was perhaps less than ideal, there was no evidence of a repairable defect.

At trial, whilst the Judge was clearly sympathetic to the Claimant he found that the uneven ground and changing levels in the Tenant's garden was not a repairable defect which engaged the Landlord's repairing obligations under the Defective Premises Act 1972.

It was successfully established that the differing levels pre-dated the tenancy agreement between Lancaster City Council and the Tenant. It would only be considered a relevant defect under the Defective Premises Act 1972 if the area had fallen into disrepair after the start of the tenancy. The case of Alker v Collingwood Housing Association [2007] was successfully used to emphasise there is a distinction between the duty to repair and the duty to make safe. The Defendant was not under a duty to make the area safe despite the assertions from the Tenant that the area was hazardous.

Forbes comment

This is a good outcome for landlords of older housing stock with similar issues. Uneven surfaces are common place and if the Judge had found that the area should have been levelled then it would have imposed an onerous and unrealistic duty on the landlord to level out the paths and driveways at every property.

For more information contact Elizabeth Bower in our Insurance department via email or phone on 01254 222411. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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