Housing Update: Duty to inspect?
The Court of Appeal considered the appeal in the case of Rogerson v Bolsover District Council (2019) EWCA Civ 226 which concerned a landlord’s duty pursuant to s4 Defective Premises Act 1972 and whether the duty extended to a duty to inspect.
Ms Rogerson was the tenant of Bolsover DC and occupied a house with a garden. One day she was mowing the lawn and the drain cover gave way and she fell injuring herself. The cover and sewer beneath were the property of Severn Trent Water.
At first instance
In the County Court she was awarded damages of around £15,000 based on breach of s4. The expert evidence concluded that the support to the cover had corroded. In evidence it was discovered that the Council had inspected it 16 months earlier and had carried out a “survey” 9 months prior to the incident. The DDJ found that the Council should have carried out a pressure test as the cover in the garden was an obvious risk even though the cover and sewer were the responsibility of Severn Trent, in essence, finding a duty to inspect in s4.
The first appeal
The Council appealed successfully to a Circuit Judge who found that there was no duty to inspect in s4 and that the duty only extended so far as to take such care as was reasonable to ensure that occupiers were reasonably safe. However, it was also held that such a misdirection was not material because “it was conceded that had such an inspection revealed a patent defect or risk of injury to the tenant the duty to take reasonable care would arise notwithstanding the fact that the cover was not their property or that s4 did not imply a duty to inspect”. The Circuit Judge concluded that the fault to the framework of the cover was not apparent and therefore there was not duty to further inspect.
Court of Appeal
The tenant appealed to the Court of Appeal who upheld the appeal but for different reasons to the DDJ. The headline was that there was no general duty to inspect in s4. However, each case would turn on its facts and in this case the Appeal Court found that 2 inspections had been carried out and the relevant question was whether the Council exercised reasonable care and so whether the defect should have been discovered so as to prevent the resulting injury.
The evidence as to how the accident occurred was accepted as was the expert evidence as to the defect so it was for the Council to show that the steps taken on inspection were reasonable and there was little documentary evidence to support their contention that it was. The Court found that the simple pressure test suggested by the DDJ would have revealed the defect. The Council had a right of entry to inspect and it did not matter that the actual repairs would be the responsibility of Severn Trent. Once a visual inspection revealed an apparent defect which might place the tenant at risk of injury there would still be a duty to act reasonably. This was the leading judgment of Lady Justice Nicola Davies DBE. Lord Justice Males’ differed slightly by suggesting that that might be a duty to inspect where there is a clear and obvious danger and Mr Justice Moors concurs with both so there is not a clear answer given by the Court of Appeal as to if there is a duty to inspect or when it arises.
In conclusion, it seems that there is not a wide duty to inspect but landlords should, if there is a “clear and obvious danger”, carry out an inspection and take necessary steps to remedy.