Duty to Repair is Not to be Equated with a Duty to Make Safe

Article

05 April, 2016

Megan Louise Dodd v Raebarn Estates Ltd and 5 Others [2016] EWHC 262 (QB)

This tragic case arises out of Paul Dodd's death on Christmas Day 2007. He and his wife, both Australians, were on their honeymoon. They were the guests of the sixth defendant, who was then the leasehold owner of a flat in Notting Hill. While leaving the flat to go out, Paul Dodd fell down the stairs from the first floor, suffered a major brain injury, and died two years later. It was alleged that defects in the staircase, and above all the lack of a handrail, were responsible for his fall.

The widow appealed against the striking out of her negligence claim against the defendant freeholder of the building. The widow claimed that the freeholder had failed to discharge its common law duty of care as occupier to the husband as a visitor under s.2 of the Occupiers' Liability Act 1957 (OLA), and had failed to take reasonable care under s.4 Defective Premises Act 1972 ("DPA") to see that those likely to be affected by the condition of the staircase were reasonably safe.

At a hearing before a High Court Master, it was questioned whether the first defendant had demised the staircase to the fourth defendant owing to some contradictory wording in the lease. The Judge held that the Master had been correct in applying the principle of corrective interpretation and concluded that the parties had obviously intended a means of access to the first floor to be demised. He therefore found that the first defendant had no control or duty of care over the replacement staircase under the OLA.

Furthermore, the High Court found that case law had established that the duty of repair under s.4 of the DPA was not to be equated with a duty to make safe or even to make habitable. It was limited to a duty to put right something that was in a worse condition than it was at some previous time.
The obligation to repair did not arise unless the item was out of repair, and there was no evidence that the staircase was other than well-constructed. The steep stairs and failure to install a handrail probably made it unsafe but, "potential dangerousness" is not the test for a relevant defect under the DPA.

Forbes comment

This case serves to limit the duty under section 4 of the DPA and will be largely welcomed by landlords. The Judge stressed that s.4 of the DPA should not be given a wide construction because that could impose a substantial burden on a landlord to put right matters that are under the control of the tenant.

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