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

[2017] EWCA Civ 439Case No B3/2016/0939
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
HIS HONOUR JUDGE PARKES QC
HQ12X05244
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21/06/2017
Before
LORD JUSTICE McFARLANELORD JUSTICE LEWISONLORD JUSTICE McCOMBE
Between
MEGAN LOUISE DODDAppellant(1) RAEBARN ESTATES LIMITEDRespondents(2) RAEBARN ESTATES (NO 2) LIMITEDRespondent(3) RAEBARN ESTATES (NO 3) LIMITEDRespondent
Howard Stevens QC and Andrew Young (instructed by Irwin Mitchell LLP) for AppellantGraham Eklund QC and Colm Nugent (instructed by Keoghs LLP) for RespondentsHearing Hearing dates: 13 June 2017
Judgment Approved
[1]Mr Paul Dodd was on honeymoon in London on Christmas Day 2007. He and his wife Megan were staying in Flat 2 on the first floor of a building at 194-196 Kensington Park Road, following ten days spent touring Europe. They celebrated Christmas in the flat with friends. At about 9.15 p.m. Mr Dodd went downstairs with some of his friends to have a smoke. He lost his footing on the lowest flight of stairs, and in falling suffered catastrophic head injuries from which he never recovered. Sadly, after some two years in a coma, he died in his native Australia.[2]There are three tiers of property interests in the building: i) The freehold. This was acquired in 1987 by Raebarn Estates Ltd and transferred to Raebarn Estates (No 2) Ltd and Raebarn Estates (No 3) Ltd in 2007. I refer to the freeholders as “Raebarn”. ii) The head lease. This was a 125 year lease of the upper parts of the building (including the staircase and entrance hall) granted by Raebarn to Southwind Holdings Ltd in 1987 and assigned to 194-196 Kensington Park Road 1995 Ltd in 2005. I refer to them collectively as the “head lessee”. The property comprised in the head lease included “all additions alterations and improvements to the premises made at any time”. iii) The underleases of the individual flats in the upper parts of the building. The lease of flat 2 was held by Mr Pereira.[3]Mrs Dodd has brought claims against the holders of all three tiers of interest. The sole question on this appeal is whether Raebarn, as freeholders of the building, are potentially liable for his injuries under section 4 of the Defective Premises Act 1972.[4]A number of tenant’s covenants in the head lease are relevant to the arguments before us. Clause 3 (3) provides:
“At the cost and charge of the Tenant from time to time and at all times during the term to put and thereafter throughout the term to keep the premises … in good and substantial repair order condition and decoration including the remedying of any inherent defect to the premises as and where necessary to keep the premises in such condition …”
[5]Clause 3 (7) provides:
“The Landlord may give or leave notice in writing upon the premises specifying any defaults defects decays wants of reparation or amendment found upon the premises for the Tenant to amend and repair the same and the Tenant will within the space of ninety days next after such notice well and substantially repair mend and make good the same according to the covenants and provisions of these presents AND if the Tenant shall at any time make default in the performance of any covenant hereinbefore contained for or relating to the repair reinstatement or decoration of the premises it shall be lawful for (but not obligatory for) the Landlord … to enter upon the premises and repair reinstate or decorate the same at the expense of the Tenant in accordance with the covenants and provisions of these presents …”
[6]Clause 3 (8) (a) contains a covenant by the head lessee to execute all such works as are required by Acts of Parliament local bye-laws and regulations. Clause 3 (9) contains a covenant against altering the structure of the premises without the landlord’s consent. Clause 3 (12) contains a covenant by the head lessee to comply in all respects with the requirements of all planning permissions so far as they relate to or affect the premises.[7]In 1988 the head lessee applied to the local planning authority for planning permission to reconfigure the flats in the upper part of the building. At the time of the demise there had been two staircases leading to the upper parts: one in 194 and the other in 196. The plans submitted in support of the application showed that part of the scheme involved the removal of both the existing staircases serving the upper parts and their replacement with a single new one in 196. Notes on the relevant plan showed that the new flight of stairs from the ground floor to the first floor would be equipped with a handrail and that the stairs themselves would have a maximum rise of 190mm and a minimum going (or tread) of 240mm. Planning permission was granted for the reconfiguration “as shown on the submitted drawings”. However, when the new staircase was constructed it is likely that the handrail was omitted on the flight of stairs from the ground floor to the half landing below the first floor, and the stairs themselves were steeper and shallower than the dimensions shown on the submitted plan. It also seems probable from a comparison between the lease plan and the plans submitted to the local planning authority that the replacement staircase was not in the same position as the old staircase: hence its comparative steepness. The staircase from the ground floor to the half landing was enclosed by two walls, as it had been before.[8]Although no document is in evidence, it is part of Mrs Dodd’s pleaded case that Raebarn gave written consent to the alterations under clause 3 (9) of the head lease. It is also part of her case that the old staircase in 196 that was replaced in the course of the alterations had been equipped with a handrail on the flight going from the ground floor to the half landing below the first floor. For the purposes of this appeal we must assume that both these parts of her case are factually correct.[9]An alternative theory is that the replacement staircase did have a handrail at the time of the reconfiguration, but that it was subsequently removed at some point between 1988 and 1995. There is no direct evidence to that effect, but it is argued that the judge was wrong to dismiss that theory summarily as “speculative and fanciful”.[10]It is common ground between the experts that the lack of a handrail and the steepness of the flight amounted to a breach of the Building Regulations in force at the time of the alterations.[11]Raebarn applied for summary judgment against Mrs Dodd on the ground that her claim had no real prospect of success. That application succeeded before Master Leslie. Her appeal against Master Leslie’s decision was heard by HH Judge Parkes QC. The case against Raebarn was put on various grounds before the judge. He rejected them all, dismissed the appeal and gave summary judgment in Raebarn’s favour. His judgment is at [2016] EWHC 262 (QB), [2016] PIQR P16. The only surviving ground on this second appeal is that Raebarn is said to be liable under section 4 of the Defective Premises Act 1972. The relevant parts of that section read as follows:
“(1) Where premises are let under a tenancy which puts on the landlord an obligation to the tenant for the maintenance or repair of the premises, the landlord owes to all persons who might reasonably be expected to be affected by defects in the state of the premises a duty to take such care as is reasonable in all the circumstances to see that they are reasonably safe from personal injury or from damage to their property caused by a relevant defect. (2) The said duty is owed if the landlord knows (whether as the result of being notified by the tenant or otherwise) or if he ought in all the circumstances to have known of the relevant defect. (3) In this section “relevant defect” means a defect in the state of the premises existing at or after the [commencement of the tenancy] and arising from, or continuing because of, an act or omission by the landlord which constitutes or would if he had had notice of the defect, have constituted a failure by him to carry out his obligation to the tenant for the maintenance or repair of the premises… (4) Where premises are let under a tenancy which expressly or impliedly gives the landlord the right to enter the premises to carry out any description of maintenance or repair of the premises, then, as from the time when he first is, or by notice or otherwise can put himself, in a position to exercise the right and so long as he is or can put himself in that position, he shall be treated for the purposes of subsections (1) to (3) above (but for no other purpose) as if he were under an obligation to the tenant for that description of maintenance or repair of the premises; but the landlord shall not owe the tenant any duty by virtue of this subsection in respect of any defect in the state of the premises arising from, or continuing because of, a failure to carry out an obligation expressly imposed on the tenant by the tenancy.”
[12]It can be seen from my description of the relevant covenants that liability for repair rests on the head lessee. The freeholder is not liable to the tenant for carrying out any description of maintenance or repair. It follows that section 4 (1) of the Act cannot apply directly. That is why the case is confined to section 4 (4).[13]It was rightly accepted below that if section 4 (4) applies Mr Dodd was within the class of person to whom the duty under section 4 (1) is owed. It is true that the last five lines of section 4 (4) state that “the landlord shall not owe the tenant any duty by virtue of this subsection in respect of any defect in the state of the premises arising from, or continuing because of, a failure to carry out an obligation expressly imposed on the tenant by the tenancy.” However, that part of section 4 (4) does not impinge on a duty owed to a person who is not the tenant: Boldack v East Lindsey DC (1999) 31 HLR 41. The reason for the exclusion of liability to the tenant alone is that the landlord should not become liable to the tenant himself for the consequences of a defect arising from his own default. This is plain from the Law Commission report that preceded the 1972 Act (Civil Liability of Vendors and Lessors for Defective Premises (Law Com No 40) para 68).[14]The real debate between the parties, both in this court and before the judge, was whether the lack of a handrail on the flight of stairs between the ground floor and the half landing was a “relevant defect” as defined by section 4 (3). In determining this question the first step is to make the assumption required by section 4 (4) that to the extent that the landlord has the right to enter the premises to carry out any description of maintenance or repair, he is to be treated for the purposes of section 4 (1) as if he had an obligation to carry out that description of repair or maintenance. The second question is whether the lack of a handrail can be said to be a “a failure by [the landlord] to carry out his [deemed] obligation to the tenant for the maintenance or repair of the premises.”[15]It is important to note that the deemed obligation that arises under section 4 (4) is limited to the description of repair or maintenance for which the landlord has the right to enter: Lee v Leeds CC [2002] EWCA Civ 6, [2002] 1 WLR 1488 at[70]. The only right of entry to repair on which Mrs Dodd relies is the right given by clause 3 (7). That right arises if, and only if, there is an antecedent breach of covenant by the head lessee; and the right is a right limited to rectifying breaches of “any covenant hereinbefore contained”; that is to say a breach of clause 3 (3). If there is no breach of clause 3 (3), Raebarn has no right to enter under clause 3 (7).[16]It is clear that the phrase “maintenance or repair” is to be interpreted according to the meaning that it has in the general law of landlord and tenant, and does not extend to defects in a general sense. The obligation to repair does not arise unless the objects in respect of which it is imposed are out of repair: Lee at [81]. Thus the reach of the duty arising under section 4 is no longer than the reach of the covenant to repair owed (or treated as being owed) by the landlord in any particular case: Alker v Collingwood Housing Association [2007] EWCA Civ 343, [2007] 1 WLR 2230 at [11].[17]It is also clear that a duty to repair cannot be equated with a duty to make safe. In Alker the problem concerned the glass panel in a front door. It was made of ordinary glass rather than safety glass. Although it probably complied with building regulations at the time it was installed, it was nevertheless known to be a safety hazard. The claim under the 1972 Act failed. As Laws LJ put it at [14]:
“There is … much learning on this dichotomy between maintain and repair. It is not necessary to go into it in this case. No doubt the two concepts overlap. Neither of them, however, can in my judgment possibly be said to encompass or to include a duty or obligation to make safe. Moreover a duty to keep “in good condition”, the words used here, even if it encompasses a duty to put into good condition, again cannot encompass a duty to put in safe condition. A house may offer many hazards: a very steep stairway with no railings; a hidden step; some other hazard inside or outside the house of the kind often found perhaps in particular older properties. I do not think it can be said that the Act requires a landlord on proof only of the conditions I have described for the application of section 4 to make safe any such dangerous feature.”
[18]One of the examples that Laws LJ gave was a very steep stairway with no railings. That example came to be tested before this court in Sternbaum v Dhesi [2016] EWCA Civ 155, [2016] 2 P & CR 4, decided a month after the judge had given judgment in our case. Apart from the fact that the injuries concerned in that case had nothing like the catastrophic consequences for Mr Dodd, the facts bear a remarkable resemblance to the assumed facts of our case. The property concerned was a Victorian house in Leamington Spa. The back staircase was steep and was enclosed by walls on both sides. There may have been a bannister on the lower flight which had been removed at some stage in the building’s history. However, neither at the commencement of the tenancy nor at the time of the accident was there any handrail in place. Ms Sternbaum lost her footing on the stairs and suffered a nasty injury. The trial judge found that the accident would not have happened had there been a handrail. This court held that the landlord had no liability under section 4 of the 1972 Act because it could not be said that the staircase was out of repair even though it was unsafe. The argument for Ms Sternbaum was that when the bannister was removed, and the wall fitted, an essential safety feature was removed. No handrail was fitted in its place. From that point on the staircase was in a “worse” condition and in a state of disrepair so that the landlord was under a duty to repair. There was no change “in entity” as there would have been in major conversion works so that the “clock would start again”. The bannister had simply been removed and not replaced. A landlord cannot comply with his duty to his tenant to keep the premises in repair by simply removing an essential part of the structure.[19]This court unanimously rejected that argument. Hallett LJ said at [29]:
“The photographs show a staircase of a kind that one might find in hundreds of old buildings across the country. It looks very much like one of the examples given by Laws LJ in Alker of a hazard that is not in a state of disrepair, namely “a very steep stairway with no railings”
. Given the narrowness of the tread and the steepness of the flight of steps, particularly where it turns the corner, I have little doubt that, without a handrail, it was a hazard. But, as unsafe as it may have been, there is nothing about it that, to my mind, could possibly justify the description of being in disrepair. The walls and stairs themselves are apparently sound and there is nothing wrong with the floor covering.”[20]Briggs LJ said at [36]:
“Like my Lady, I consider that the photographic evidence about the relevant staircase (which was all the evidence available to the recorder) shows clearly that by no reasonable use of language could the staircase be said to have been in disrepair. It was simply an old fashioned, steep, narrow staircase without bannisters or hand rails, both at the time of the accident and at the commencement of the tenancy. The fact that at some date in the past it may well have had an open void on its left hand side (where there is now a wall) protected by a bannister, is in my view neither here nor there.”
[21]Moylan J said at [38]:
“However, the state of the relevant staircase in this case, following whatever works or alterations had in fact taken place, was not such as to cause it to be in disrepair.”
[22]As I have said, on the facts of that case there was no handrail in place at the start of the tenancy. The start of the tenancy was the “relevant time” for the purposes of section 4 (3) of the 1972 Act. The absence of a handrail at that time was, as I read the judgments of Hallett and Briggs LJJ, an additional reason for their decision. Hallett LJ put it thus at [30]:
“Furthermore, there never had been a handrail on the staircase at any relevant time. To place the respondent landlord under an obligation to fit a handrail in these circumstances would amount to placing him under an obligation to improve the premises or make them safe. This would be beyond the reach of his covenant, just as it was in Alker.”
[23]Briggs LJ referred to this point at [37]:
“I accept of course that an obligation on a landlord (or a tenant) to keep in repair extends to putting into repair anything which is out of repair at the start of the relevant tenancy. But it would be bizarre if in this case the tenant could have complained that this staircase was in need of repair at the start of this tenancy merely because it might at some earlier time have had an open side with a bannister, long since replaced by a wall.”
[24]On the face of it Sternbaum provides strong support for the judge’s conclusion in our case. Mr Stevens QC and Mr Young, for Mrs Dodds, seek to distinguish it on two bases. The first is that, unlike the position in Sternbaum, there was a handrail on the staircase at the start of the head lease before the reconfiguration of the upper parts. The second is that the failure to install a handrail as part of the works of reconfiguration was a breach of the building regulations then in force and was also a failure to comply with the terms of the planning permission. In Alker the glass panel complied with building regulations at the time of its installation and in Sternbaum there was no consideration of the building regulations.[25]Mr Stevens has referred us to a number of cases in which the courts have held that when a covenantor is obliged to carry out works of repair, those works must be carried out in accordance with applicable building regulations and in accordance with good practice current at the time when the work is carried out. There is no doubt that that principle is sound, as Mr Eklund QC accepted. In Lurcott v Wakely [1911] 1 KB 905 the rebuilding of a dangerous wall so as to comply with building regulations fell within the scope of a repairing obligation. In Ravenseft Properties Ltd v Davstone (Holdings) Ltd [1980] QB 12 the repair of defective cladding was held to require the insertion of expansion joints in accordance with good professional practice current at the date of the remedial works.[26]These cases illustrate the consequences that flow from an established breach of an obligation to repair. They define the scope of the remedial work required to remedy a breach. However, before one gets to that stage it is necessary to establish such a breach. Dillon LJ made this point in Quick v Taff-Ely BC [1980] QB 809, 818 D-G, emphasising that it is necessary to find damage to the subject matter of the covenant before there can be a breach of a covenant to repair. The reasoning of the court in Quick is equally applicable whether the original defect resulted from error in design, or in workmanship, or from deliberate parsimony or any other cause: Post Office v Aquarius Properties Ltd [1987] 1 All ER 1055, 1063. Chadwick LJ made a similar point in Lee at [13]:
“The cases show that, where there is a need to repair damage to the structure, the due performance of the obligation to repair may require the landlord to remedy the design defect which is the cause of the damage. They do not support the proposition that the obligation to repair will require the landlord to remedy a design defect which has not been the cause of damage to the structure; notwithstanding that the defect may make the premises unsuitable for occupation or unfit for human habitation.”
[27]Mr Stevens relied on what Lawton LJ said in Quick at 821G:
“As a matter of ordinary usage of English that which requires repair is in a condition worse than it was at some earlier time.”
[28]However, I do not consider that this observation was intended to suggest that whenever part of a building is replaced by an inferior product the building is for that reason alone out of repair, even though in a very general sense it may be said to be “worse”. If that were the law then it is difficult to see how Briggs LJ could have come to the view that he did in Sternbaum at [36].[29]In its most attractive form, the argument advanced by Mr Stevens ran as follows. When the original staircase was removed from the upper parts of 196 the subject matter of the covenant (i.e. the upper parts considered as a whole) was in disrepair, since it lacked a staircase which had been there before. That lack of a staircase was a deterioration in the physical condition of the upper parts and, to the extent necessary to sustain the argument, was also damage to them. At that point, therefore, there was a breach of clause 3 (3) of the head lease. In order to remedy that breach, consistently both with its covenant and also with the line of cases exemplified by Lurcott and Ravenseft, the head lessee was obliged to install a staircase compliant with building regulations and proper professional standards. It did not do so, and consequently the breach of covenant consisting of the removal of the original staircase remained unremedied. Accordingly, there was a continuing breach of clause 3 (3) of the head lease, in consequence of which Raebarn was entitled to enter under clause 3 (7) to rectify that breach. The existence of Raebarn’s right to enter in order to rectify the unremedied breach triggered the application of section 4 (4) of the 1972 Act, thus giving rise to a duty owed to Mr Dodd. It was on this basis that both Alker and Sternbaum should be distinguished.[30]The difficulty with this argument is that it does not take account of the scheme of the head lease as a whole. Clause 3 (3) does not stand alone. It stands together with clause 3 (9) which permits alterations with the freeholder’s consent. Where a lease expressly contemplates alterations the mere fact that part of the leased property is removed as part of a scheme of alterations does not without more amount to a breach of a repairing obligation (compare British Glass Manufacturers’ Confederation v The University of Sheffield [2003] EWHC 3108 (Ch), [2004] 1 EGLR 40 (which was not cited to us)). As I have said, we must assume that Raebarn consented to the alterations under clause 3 (9). I cannot see how, in those circumstances, it could plausibly have been argued by Raebarn that the removal of the old staircase amounted to a breach of clause 3 (3) of the head lease, when that removal was an integral part of a scheme of alteration to which Raebarn had expressly consented. Since it is the removal of the staircase which is said to have amounted to the breach of clause 3 (3) triggering the obligation to install a compliant staircase, and the removal itself cannot have amounted to a breach of that clause, the right to enter under clause 3 (7) cannot have been triggered by the fact of its removal.[31]We do not know to what precisely Raebarn consented, but I will assume that (as Mrs Dodd has pleaded) the scheme to which it consented was that shown in the plans accompanying the application for planning permission. The eventual staircase differed from the scheme to which Raebarn consented in two respects: the lack of the handrail and the steepness of the staircase. But that, in my judgment, would have been a breach of clause 3 (9) of the lease, not a breach of clause 3 (3). In addition it might well have been a breach of clause 3 (8) (a) or 3 (12) of the head lease. But none of these covenants is concerned with repair. Breach of these covenants does not empower Raebarn to enter under clause 3 (7) which is confined to covenants “hereinbefore” contained.[32]Once the new staircase had been installed clause 3 (3) would have attached to that staircase, since the demise included alterations and additions. To adopt a phrase used by counsel in advancing Ms Sternbaum’s case the “clock would have started again”. On the hypothesis that the new staircase never had a handrail, there has been no subsequent damage to or deterioration in the fabric of the staircase such as to give rise to an obligation to repair it. On that hypothesis, therefore, the claim under section 4 (4) must fail.[33]What of the alternative hypothesis, namely that the new staircase had a handrail which was subsequently removed? As mentioned the judge rejected this hypothesis as being “speculative and fanciful” and said that there was “simply no evidence” that a handrail was installed and later removed. Mr Stevens said that there was sufficient indirect evidence from which it could be inferred that this hypothesis was sufficiently plausible to sustain a real prospect that it would be found at trial to be correct. He pointed out that: i) The original staircase had a handrail. ii) A handrail was required both by building regulations and by the planning permission. iii) The building contractor must have expected that a building inspector would inspect the finished product and would not sign it off if there were no handrail. iv) The staircase was narrow which increased the likelihood that if installed the handrail was subsequently removed. Raebarn’s own expert said in his report:
“However, it is possible that a handrail was originally provided when the upper parts of the Building were converted into residential accommodation but that the handrail was subsequently removed by occupiers, as often happens in conversions where the handrail makes it difficult to move furniture up and down the stairs.”
[34]Mr Stevens did not suggest that there was any further relevant evidence which might be called at trial apart from what might turn up in cross-examination of Raebarn’s witnesses.[35]Mr Stevens reminded us of Lord Hobhouse’s observation in Three Rivers DC v Bank of England (No 3) [2003] 2 AC 1 at [158] that the criterion which must be applied at the stage of summary judgment is “not one of probability; it is absence of reality.” Precisely what that means was amplified by this court in ED & F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472 in which Potter LJ said at [8] that the party against whom summary judgment is sought must have “a case which is better than merely arguable”, and as I read his judgment he said that such a case must carry “a real conviction”.[36]Moreover as Lord Hobhouse himself said in Three Rivers in the same paragraph:
“The important words are 'no real prospect of succeeding'. It requires the judge to undertake an exercise of judgment. He must decide whether to exercise the power to decide the case without a trial and give a summary judgment. It is a 'discretionary' power, i.e, one where the choice whether to exercise the power lies within the jurisdiction of the judge. Secondly, he must carry out the necessary exercise of assessing the prospects of success of the relevant party. If he concludes that there is 'no real prospect', he may decide the case accordingly . . . . Whilst it must be remembered that the wood is composed of trees some of which may need to be looked at individually, it is the assessment of the whole that is called for. A measure of analysis may be necessary but the 'bottom line' is what ultimately matters.” (Emphasis added)
[37]In addition Lord Hobhouse said at [160]:
“The hope that something may turn up in cross-examination of a witness at the trial does not suffice.”
[38]Thus the role of the judge was to conduct an evaluation. An appeal court should be slow to interfere with an evaluation carried out by a first instance judge. Given the extent of the evidence before the judge, and Mr Stevens’ inability to point to any further evidence that might become available at trial (apart from what might turn up in cross-examination) I consider that the judge was entitled to conclude that the alternative hypothesis that there was a handrail which was subsequently removed was “speculative and fanciful”. He may have slightly overstated the position in saying that there was “simply no evidence” rather than the more nuanced “no direct evidence”, but in my judgment that does not invalidate his conclusion. The only evidence was that subsequent removal could have happened. There is no evidence that it actually did.[39]Let me assume, however, that the judge was wrong in that respect. Would it make any difference if the handrail had been removed at some time after the new staircase was installed? Mr Stevens relied on Hannon v Hillingdon Homes Ltd [2012] EWHC 1437 (QB) in submitting that it would. The property in question in that case was a two-storey house. The ground floor of the house was open plan. The staircase leading from the ground to the first floor had originally been equipped with a handrail and newel posts and spindles on its open side. The other side of the staircase was a solid wall. At some stage the tenant of the house had, for aesthetic reasons in order to enhance the open plan aspect of the ground floor, removed the handrail, newel post and spindles on the open side of the staircase and instead affixed a handrail to the solid wall on the closed side of the staircase. The landlord in that case had an obligation to keep the structure and exterior of the dwelling in repair. One of the issues in the case was whether the absence of a handrail, newel post and spindles on the open side of the staircase amounted to a “relevant defect” as defined by section 4 (3) of the 1972 Act. HHJ Thornton QC’s reasoning on this topic is extremely brief. What he said was:
“The evidence shows that the bannisters in question was removed by the tenant after she had first become a tenant. This removal occurred after the “material time” which is defined in the DPA as being, on the facts of this case, after the time when the tenancy commenced. Given its integral function, it is self-evident that the absence of the bannisters was a defect in the state of the property which was continuing because of the failure or omission of the party responsible for the repairs of the structure to replace it or to insist on its replacement by the tenant.”
[40]Judge Thornton does not appear to have considered any of the case law on the question whether there was disrepair such as to trigger liability under the 1972 Act. The test that he 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. It is by no means “self-evident”, to me at least, that a staircase which has been deliberately altered in the way described is out of repair. In Sternbaum, in a passage I have already quoted, Hallett LJ held that the staircase in question could not possibly be said to be in disrepair because the walls and stairs themselves were apparently sound and there was nothing wrong with the floor covering. That is the position in our case too. I do not consider that Sternbaum can be properly distinguished. If there is no disrepair the questions of compliance with building regulations do not arise.[41]Although I have profound sympathy for Mrs Dodd for her tragic loss, in my judgment Raebarn is not the culprit. I would dismiss the appeal.[42]I agree.[43]I also agree.