High Court Swallows Up Sinkhole Case

Article

04 May, 2016

Robina Lafferty v Newark & Sherwood District Council (2016)[2016] EWHC 320 (QB)

The tenant had been standing in her garden when a hole suddenly opened up in the ground. She fell into it and sustained minor injuries. She appealed after her claim under s.4 Defective Premises Act (DPA) against the local authority landlord was dismissed. The question for the High Court to determine was whether s.4(4) of the DPA 1972 created strict liability for latent and undetectable defects?

The Judge found that an underground pipe leading to a soakaway was fractured, which had allowed water to escape. The ground eroded over time causing the void. There were no external signs or warnings and no reasonable inspection of the garden could have discovered it.

The tenancy agreement provided that the local authority would keep the property's structure, exterior and essential installations for the supply of utility services in repair. The local authority had a right of entry to inspect the property and carry out work. The Claimant argued that s.4(4) imposed strict liability on landlords, regardless of notice.

The Court held that the purpose of s.4(4) DPA 1972 was to extend s 4(1) to relevant defects which were beyond its scope and, therefore, to bring them within the bounds of the section as a whole. Its purpose was not to provide an alternative route of recovery where the claim under s 4(1) failed on its facts because s 4(2) was unsatisfied.

The Defective Premises Act 1972 s.4(4) did not create a form of strict liability and the claim was dismissed.

Forbes comment

Whilst the landlord's system of inspection was not mentioned in the first instance judgment, it was accepted that no reasonable inspection could have identified this defect. The Judge however commented that in such cases the Court ought to consider the landlord's system for inspecting the property and whether an entirely reasonable system would have discovered the presence of a defect. Liability could be established in a s.4(4) case where a landlord's inspection was negligently performed or where the landlord failed to carry out a proper inspection because of a failure to implement a reasonable system for performing them. It is crucial that landlords carry out thorough inspections which are documented and retained on the house file.

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