“16. I do not consider from the evidence that I have seen that the danger that was posed to the claimant and which materialised was one that has come into being very quickly. An examination of one photograph, which shows the inspection cover coned off by the defendant prior to the repair, shows the inspection cover does not fit well into the ground. It shows a gap in the soil near to the void. This is the best evidence that we have. 17. There is also the evidence of Mr Hill, the chartered engineer. He said that the manhole, the void itself and the cover, would be about 40 to 60 years old, that is (sic) would have been in place for this time. It is clear that it is beginning to corrode away and he says that the most logical explanation of what has happened is that support for the inspection cover provided by the framework around it has deteriorated over a period of time and, as a result, the inspection cover was not able to take the claimant’s weight. He said that it is likely that corrosion with rain water in this area of the garden has affected the mortar and, therefore, the stability of the inspection cover and that this is a likely cause for it eventually failing. 18. Mr Hill postulates another potential cause; impact damage. This could be responsible also for the instability of the inspection cover. This, if that is the correct cause, must have predated the claimant coming into the tenancy because there was nothing in the claimant’s evidence at all to show that the claimant used heavy machinery upon it or was responsible for any mechanical damage. This was not put to her or alleged by the defendant, that in any way she was the author of her own misfortune. In addition the defendant’s evidence was that heavy mechanical mowers were not used at the property by the defendant prior to the grant of the tenancy. This was a pure speculation on Mr Hill’s part and I discount it. So, on a balance of probability, the overwhelming likelihood is that the inspection cover and the void beneath had become in an unsafe state for a period of time going well back beyond the January 2014 inspection and, indeed, the May 2013 inspection.”
“19. It is a duty on the defendant, of course, to take reasonable care only, and how would reasonable care manifest itself? By means of a simple pressure test. All the defendant needed to do to ensure that this inspection cover was safe was to carry out a simple pressure test. Mr Clarke, himself, accepted in his evidence that if Ms Rogerson’s account was accepted as truth, he could see that the inspection cover would have been unsafe, he would have expected a competent inspector to have tested it for safety and he would have expected a simple pressure test to be carried out. That is all that had to be done to take reasonable care for this tenant’s safety and the safety of her family. There was no need to call Severn Trent to remove the cover. There was no need for anything that would place an excessive burden upon the defendant but there is no evidence at all before me that this simple test was ever undertaken.”
“…a clear and obvious safety risk. They are large. Their purpose is well-known. …it is perfectly plain to anyone that underneath would be a large void to allow utilities access to sewage or water supplies, a large void which if inadequately protected would prove a serious danger to any tenant and, in particular, a significant risk to young children.”
“… there is no evidence … to show that the inspection carried out, particularly by Les, was other than reasonable. There was no reason to suppose it was not. There is no evidence to show that the simple pressure test (that is, presumably, the inspector standing or walking over the cover) had not been undertaken or that on either occasion the defect would have been revealed.” iv) The judge noted that counsel on behalf of the respondent had submitted that the garden, in particular the inspection cover, was not within paragraphs 1 and 2(a) of Schedule 2. However, he stated: “Miss Rainey [for the respondent] conceded, if the visual inspection revealed an apparent defect which might place the tenant at risk of injury there would still be a duty to act reasonably, that is, take such care as was reasonably required to see if the tenant was reasonably safe.” v) As to section 4(2) the words “or otherwise” would include knowledge acquired (or which ought reasonably to have been acquired) as a result of the inspections of the premises in May 2013 or January 2014; vi) The DDJ erred in finding that section 4(1) implied a duty on the part of the respondent to inspect to ensure relevant defects did not develop, however such a misdirection was not material because “it was conceded that had such 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 section 4 did not imply a duty to inspect”; vii) Given the apparent state of the cover “there was no reason to suppose that the cover was a source of danger or defective. There was no evidence before the Deputy District Judge to show that the two inspections undertaken by the defendants were probably conducted without reasonable care or indeed to infer any such inspections as the Deputy District Judge found would have revealed the defect.”
“19. In that respect Mr Brown submits that the judge was in error. He submits that the duty under s.4 of the 1972 Act is a duty of reasonable care in all the circumstances, tied in, and analogous, to the common duty of care and the ordinary law of negligence; it is not to be regarded as dependent upon identical constraints and liabilities to those imposed in the field of contractual liability between landlord and tenant and, in particular, the question whether the landlord has been 'put upon inquiry' of the existence of a defect. He goes on to submit that, judged by the appropriate test, the findings of the judge were sufficient to place the landlord in breach of his duty under s.4(1) to take such care as is reasonable in all the circumstances to see that the claimant (as a person who might reasonably be expected to be affected by a defect in the fire) was reasonably safe from injury caused by such defect. S.4 OF THE DEFECTIVE PREMISES ACT 1972 20. So far as the ambit and standard of the landlord's duty of care is concerned, I consider that the claimant is correct. I have already referred to the statutory purposes underlying s.4 of the 1972 Act (see paragraph 16 above). The purpose of the 1972 Act was to break away from the historic limitations placed by the common law upon the duty/liability of a landlord to persons injured as a result of defects in the condition of premises owned by him and, in particular, the practical fetter imposed upon the move towards a common duty of care under s.4 of the 1957 Act which was imposed by a provision in sub-section (4), that the landlord was not deemed to be in default of his duty unless the relevant defect would be actionable at the suit of the tenant. Yet that is the very fetter which the judge's interpretation of s.4 of the 1972 Act would (at least in part) perpetuate. 21. In this connection, sub-section 4(3) of the 1972 Act, when defining a 'relevant defect' for the purposes of sub-section (1), is designed to make clear that a landlord's broad duty of care under sub-section (1) is responsible only for such defects as fall within the scope of those repairing obligations as expressed or implied in the lease. However, because the relevant defect is also defined in terms of the landlord's failure to carry out such obligations, and thus argument might otherwise arise as to whether or not he had notice of the relevant defect, the relevant defect is defined in terms which preclude such argument i.e. as 'an act or omission by the landlord which constitutes or would if he had notice of the defect have constituted a failure by him to carry out his obligation'. Thus, the reference to the obligation between the landlord and tenant is inserted to show that the person to whom the duty is owed under sub-section (1) is not to be regarded as in the same position as a tenant vis-àvis his landlord suing under the lease. Such a tenant would be obliged under O'Brien –v- Robinson to show that the landlord had notice of the defect (i.e. actual notice or notice of facts which put him on enquiry as to the defect), whereas a person suing under the duty owed by the landlord under sub-section (1) is relieved of that obligation. Such a claimant merely has to show a failure on the part of the landlord 'to take such care as is reasonable in all the circumstances' to see that the claimant is reasonably safe from personal injury. Further, that duty is owed if the landlord 'ought in all the circumstances' to have known of the relevant defect, a test which is general in its terms and is emphatically not expressed to be limited by concepts of contractual notice; rather is it expressed in the familiar terms of common law negligence. Finally, (and this is common ground between the parties) there is no express or implied exclusion of the tenant himself from the category of 'persons who might reasonably be expected to be affected', and the obligation to take reasonable care in all the circumstances cannot be excluded or restricted by contract: see s.6(3).”
“21. At paragraph 6 of his judgment in Alker, Laws LJ said this: ‘It can be seen that the duty under section 4(1) arises if and only if the following conditions are fulfilled: ‘It can be seen that the duty under section 4(1) arises if and only if the following conditions are fulfilled: 1. The landlord owes an obligation to the tenant under the tenancy for the maintenance or repair of the premises – section 4(1). 2. The landlord knew or ought to have known of whatever is the "relevant defect" – section 4(2). However those requirements are qualified by section 4(4): the landlord is treated as under a section 4(1) duty if he can exercise a right enjoyed by him to enter the premises in order to carry out works of maintenance or repair. The duty itself, however, is only to take reasonable care to protect potentially affected persons from injury or damage caused by a "relevant defect". That is defined by section 4(3). I repeat the definition for convenience: "… a defect in the state of the premises … 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 - that is a failure by him to carry out his obligation for maintenance or repair".’”
“12. … There is no first hand defendant evidence before me from anyone who could actually speak to what was seen or done upon inspection, who could describe the state of the property at the time it was demised, at the time of the inspection in May 2013 or in January 2014 or, indeed, at all. Mr Clarke has never seen the property, has never inspected the property and no one who is alleged to have inspected the property has been proffered as a witness, either in writing or in an oral hearing. 13. In a nutshell, there is no sufficient evidence before me to show that the defendant has complied with its duty of care, to take such care as is reasonable in all the circumstances to see that the premises are reasonably safe, to protect people from personal injury caused by a relevant defect, a defect in the premises existing at or after the material time, that being the time of the tenancy, and arising from or continuing because of any acts or omissions by the landlord which constitute or would have constituted a failure by the landlord to carry out their obligations to the tenant for the maintenance or repair of the premises.”
“So if the landlord has a contractual right, express or implied, to enter the premises he has let to carry out maintenance or repair of them, he is treated under subsection (4) as if he were under an obligation to the tenant for maintenance and repair of the premises under subsection (1); and so, just like the landlord who is under an obligation to repair, apart from statute, he comes under the duty of care imposed by subsection (1).”
“If there should be a defect in the garden which exposed the tenants and lawful visitors to the premises to significant risk of injury, then I think that, to give business efficacy to the agreement, as Somervell LJ put it in Mint v Good[1951] 1 KB 517 , a right should be implied in the council to carry out repairs for the removal of that risk of injury.”
“I would have expected any landlord taking reasonable care to ensure that a proper system of inspection covers over voids within the gardens of domestic premises was undertaken, given the clear and obvious risks.” “I would have expected any landlord taking reasonable care to ensure that a proper system of inspection covers over voids within the gardens of domestic premises was undertaken, given the clear and obvious risks.”
“18. [Mr Clarke] disagreed with the suggestion that the cover should physically be removed (transcript, page 54). The Deputy District Judge accepted that evidence and found it to be unnecessary for an inspection to include removal of the cover (judgment, paragraph 19). Provided that the cover, on simple visual inspection, appeared to be sound it was not necessary to go further.”