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

[2016] EWHC 320 (QB)Case No 3YK62787 (Appeal Ref: NG14-025A)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
NOTTINGHAM DISTRICT REGISTRY
ON APPEAL FROM HHJ GODSMARK QC
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19/02/2016
Before
MR JUSTICE JAY
Between
ROBINA LAFFERTYAppellantNEWARK & SHERWOOD DISTRICT COUNCILRespondent
Iain Colville (instructed by Hopkins Solicitors LLP) for Claimant/AppellantPhilip Godfrey (instructed by Clyde & Co Claims LLP) for Defendant/RespondentHearing Hearing date: 17 th February 2016
Approved JudgmentI direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic..............................MR JUSTICE JAY

Introduction

[1]This is an appeal, brought with my permission given at the hearing, against the Order of HHJ Godsmark QC made on 5th March 2014 whereby he dismissed the claim of Mrs Robina Lafferty (“the Appellant”) for damages under section 4 of the Defective Premises Act 1972 (“the DPA 1972”) against Newark & Sherwood District Council (“the Respondent”).[2]The appeal raises a short but important point of construction as to the meaning and effect of section 4(4) of the DPA 1972. In short, does it create a form of strict liability, as the Appellant submits but failed in that contention before the Judge; or does it create a form of liability akin to negligence or the common duty of care under the Occupiers’ Liability Act 1957?

Essential Factual Background

[3]The Laffertys had been the Respondent’s tenants of 27 Manvers View, Ollerton since 26th October 1998 (the judgment below gives an earlier date, but nothing turns on this). The following were express terms of the tenancy agreement:
“3a We will keep the structure and exterior of your home in repair. 3b We will keep essential installations for the supply of water, gas, electricity, sanitation and heating in repair and proper working order. … 3g We have a right upon giving you 24-hour’s written notice to come into your home at all reasonable times to inspect it or to carry out work in your property or on attached property.”
[4]On 25th November 2010 the Appellant, who was born on 14th March 1941, was hanging out washing in the back garden. She sustained injuries to her left leg and foot, and grazes to both legs, when a hole suddenly opened up and she fell into it. Fortunately, the Appellant’s injuries were not particularly serious, and the Judge assessed damages, subject to liability, in an amount slightly less than £12,000.

The Judge found the following facts:

“What actually happened to cause the ground to open up under Mrs Lafferty has been explained following an inspection by engineers. It would seem that when the soakaway was constructed the underground pipe leading to it was fractured close to the point where it would have discharged water into the rubble filled hole. The most likely cause of that is that in seeking to cap the soakaway, concrete was dropped onto the pipe which fractured it at a point before it was over the soakaway itself. Water from the pipe was thus able to escape before it fell into the soakaway proper and that saturated the ground. Over the years the ground underneath was eroded causing a void, and it was into that void which suddenly opened up under Mrs Lafferty that she fell.”
[6]The Judge also found, and this is not in dispute, that there were no external signs or warnings of this potential problem. In short, no reasonable inspection of the garden could have discovered it.

The Decision under Appeal

[7]The Judge held that the soakaway pipe was part of the drainage of the premises, and that the Respondent was therefore under an obligation to maintain and repair it pursuant to section 11 of the Landlord and Tenant Act 1985, creating an implied covenant of repair as regards the structure and exterior of premises, including drainage. He also held that the broken soakaway was a relevant defect for the purposes of section 4(3) of the DPA 1972. However, given that this was a latent defect, these findings were insufficient for the Appellant’s purposes unless she could recruit to her cause section 4(4) of the DPA 1972.[8]The Judge held that certain conditions within section 4(4) were fulfilled inasmuch as the Respondent had a right to enter and repair the property, that this right related to the soakaway, and that the Respondent was in a position to exercise it upon execution of the tenancy.[9]The key question, therefore, was whether the core wording in section 4(4) served to extend the Respondent’s liability in the absence of fault, or served merely to confer a concomitant or equivalent obligation on the Respondent (consonant with the section 4(1) duty) which remained subject to the constraints set out within section 4(2), namely the requirement that an element of fault be proven.[10]The Judge favoured the latter construction, holding that he was not constrained by authority to reach any different conclusion. He held that section 4(4) was effectively subordinate to section 4(1)-(3), and that:
“There is nothing in my reading of section 4(4) of the DPA 1972 which imputes knowledge of a defect to a landlord and removes section 4(2) from the scheme. On the contrary, section 4(4) expressly provides that section 4(1) to (3) will all apply where they are engaged.”
Shortly before that in his judgment,

the Judge had said this:

“Section 4(1) to (3) impose a scheme for the imposition of a duty of care where a landlord has a repair obligation and knows or ought to have known of a relevant defect. But if there is also a power of entry the scheme in respect of the same relevant defect, it is said, changes. Actual or constructive knowledge is not required for that duty to arise.”
Clearly, therefore, the Judge was of the opinion that section 4(4) did not disrupt the overall scheme of the section, and that to contend otherwise would amount to a “startling submission on the law”. Its purpose was to place the tenant in the position she would have been in had there been no express or implied covenant of repair, but in no better position.

Section 4 of the DPA 1972

[11]This provides, insofar as is material:
“4. Landlord’s duty of care in virtue of obligation or right to repair premises demised. (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 material time 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. (5) For the purposes of this section obligations imposed or rights given by any enactment in virtue of a tenancy shall be treated as imposed or given by the tenancy. (6) This section applies to a right of occupation given by contract or any enactment and not amounting to a tenancy as if the right were a tenancy, and “tenancy” and cognate expressions shall be construed accordingly.”
[12]The DPA 1972 was enacted following the Law Commission’s Report, Civil Liability of Vendors and Lessors for Defective Premises, published on 15th December 1970. The Law Commission identified a vice in section 4 of the Occupiers’ Liability Act 1957, which fixed landlords with duties of care only where express or implied repairing covenants existed, and recommended that the position be broadened. Saliently for present purposes, paragraph 69 of the Law Commission’s report provides:
“We recommend, therefore, that the law should be amended to provide that where the landlord has an obligation or right to repair the demised premises, he should in the discharge or exercise of that obligation or right be under a general duty of care to see that injury or damage is not suffered by those who are likely to be affected by any failure to discharge that obligation or exercise that right with reasonable diligence. …”
Paragraph 69 does not support the proposition that the extended duty under section 4(4) is strict.[13]The Law Commission also prepared a draft Bill which was in similar form to what eventually became section 4 of the DPA 1972. Parliament effected some changes to the wording of the proposed section 4(3) (discussed by Potter LJ in Sykes v Harry [2001] QB 1014, but not relevant for present purposes), as well as to the proposed section 4(4). In this latter regard, Parliament added wording to the sub-section which made clear that the deemed obligation would arise only from the moment the right to enter could be practically exercised – if, for example, the right was contingent on the service of notice by the landlord, the obligation would arise as from that time and not before. Again, this additional wording has no bearing on the instant case. However, I also note that in the Explanatory Notes to the draft Bill the Law Commission made clear that the extended duty under sub-section (4) was, in substance, the same duty of care as that owed elsewhere in clause 4.

Relevant Jurisprudence

[14]In McAuley v Bristol CC [1992] 1 QB 134, the Court of Appeal found for the tenant on the basis that, given that the landlord had an implied right to enter the premises for the purposes of carrying out repairs to the garden, it was also under the implied statutory obligation conferred by the sub-section. Accordingly, the case really turned on the opening words of section 4(4), and not on the meaning and content of “obligation”.[15]In his lengthy and comprehensive judgment, Gibson LJ explained the effect of section 4(4) in these terms: “Section 4(1) of the Act of 1972 applies where the landlord is under an obligation to repair. A duty of care is imposed upon the landlord, assuming proof of knowledge or means of knowledge under subsection (2) in respect of a "relevant defect," that is to say a defect which constitutes a failure to carry out the repairing obligation. Subsection (4) extends the basis of liability by treating the landlord as being under an obligation to repair, when in fact he is not. The extension is made when the landlord is given a right to enter "to carry out any description of maintenance or repair" but the extension of liability is not general. The landlord, when he is given a right to enter to carry out "any description of maintenance or repair" is to be treated as if he were under an obligation to the tenant "for that description of maintenance or repair," not all and any description of maintenance or repair.” [at 145B-D] Thus, Gibson LJ has made clear that the deemed obligation is limited to the extent that it is confined to “that description of maintenance or repair”, and is not all encompassing. This limitation has no bearing on the present case. Further, it may also be noted that in this passage Gibson LJ said nothing about the nature and content of the relevant duty, save to point out that it is an extended obligation created by the sub-section.[16]The essential part of the reasoning of Gibson LJ germane to the outcome in McAuley was as follows: “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 L.J. put it in Mint v. Good, a right should be implied in the council to carry out repairs for the removal of that risk of injury. A reasonable tenant could not sensibly object to such a right. If the council became aware of a dangerous defect in the steps of a steep garden, as in this case, and asked the tenant for access to repair it, in the interest of all persons who might be expected to be affected by the defect, the court could, in my judgment, properly require the tenant to allow such access upon the basis of an implied right in the council to do the work. So limited, I would hold that the implied right to enter to do the necessary repair was proved …” [at 151G-H][17]It is true that Gibson LJ’s conclusions presuppose knowledge in the landlord, but this was in the context of a line of reasoning seeking to support the implication of a term on the grounds of business efficacy; it was not in a context which bears on the circumstances of the present case. As it happens, on the facts of McAuley the landlord was put on notice as to the state of disrepair of the relevant part of the premises, an external garden step. Yet nowhere in the judgment is there any indication that this was an essential precondition to the statutory liability. Accordingly, I do not regard this case as authority, one way or another, for any proposition of law which might bear on the present circumstances.[18]In Sykes v Harry [2001] QB 1014, the Court of Appeal held that liability under section 4(1) of the DPA 1972 did not require proof that the landlord had actual or constructive notice of the actual defect which caused injury, but rather that in all the circumstances of the case he had failed to exercise reasonable care in relation to the safety of his tenant as regards a relevant defect about which he ought to have known. This somewhat fine, albeit potentially important, distinction, is explained in paragraph 21 of the judgment of Potter LJ and relied on by Mr Iain Colville for the Appellant in the instant case:
“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-à-vis 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 reasonable 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).”
[emphasis in bold font supplied by me][19]Sykes is not a decision on sub-section (4): it is only concerned with sub-section (3), and in that regard it does not directly avail Mr Colville’s argument. In any event, the point that Potter LJ was making was that concepts of contractual notice are irrelevant to the sub-section; clearly, he was not saying that any form of strict liability arises – see the clause in bold font which I have emphasised. Thus, even if sub-section (4) should be read as subject to sub-section (3), it may be seen that Sykes does not avail the Appellant in the circumstances of our case, because no amount of reasonable care would have revealed the subterranean defect which gave rise to her injury. On the other hand, if sub-section (4) applies independently of sub-section (3), it must follow that Sykes must be of no utility to the correct analysis of the present case.[20]In Alker v Collingwood Housing Association [2007] 1 WLR 2230, the issue before the Court of Appeal was whether sub-section (3) covered the situation of part of premises being not in disrepair but unsafe for other reasons, viz. because strengthened glass was not used in a door. The Court of Appeal held that sub-section (3) could not be given an extended definition such as to fix the landlord with liability for design or construction defects in such circumstances. At paragraph 16 of his judgment, Laws LJ stated that such an interpretation would impermissibly transform the scope and purposes of the DPA 1972. The Judge in the present case placed some reliance on these utterances, deploying them ad hominem against the Appellant, but in my view they were made in a different content, namely that of the true construction of sub-section (3), not sub-section (4).[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: 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"
. Here it is common ground that the conditions are met. The appellant owed an obligation for maintenance or repair (clause 3.1 of the Tenancy Agreement). Section 4(2) (the second condition) was not fulfilled because the appellant had no notice of the putative defect, but that omission is repaired by the application of section 4(4) which, as I have said, qualifies the conditions. The appellant had a right of entry for the purpose of repair or maintenance by force of clause 3.12. Accordingly, the only question in the appeal is whether the state of the glass panel constituted a "relevant defect". The appellant, by Mr Underwood QC, said that it did not because the glass panel was in no need of repair or maintenance. The respondent, by Mr Hartley, says that it did because it was dangerous. That antithesis articulates in essence the short and important point on which the appeal turns.” [emphasis supplied][22]Mr Colville relies heavily on this paragraph. He recognises that it is obiter, because sub-section (3) could not be fulfilled for other reasons. However, it is obiter of a highly persuasive nature, and the second of the passages I have highlighted tends, at least at first blush, to avail the Appellant’s argument. On my reading, the first highlighted passage is devoted only to the effect of sub-section (1) unqualified in any way by sub-section (4).[23]Finally, in Hannon v Hillingdon Homes Ltd [2012] EWHC 1437 (QB), HHJ Thornton QC sitting as a High Court

Judge stated at paragraph 40:

“Finally, and in any event, section 4(4) of the DPA gave rise to a liability where, as in this case, the landlord had an express right to enter the property to carry out repairs and a further express right to visit and inspect the property for the purpose of seeing whether it should exercise that right. That liability arose even if Hillingdon had not in fact exercised its right to repair and to inspect since the DPA liability arose "from the time when by notice or otherwise [it] can put [itself] in a position to exercise" the right to inspect and carry out repairs. Thus, since Hillingdon could have inspected and repaired the bannisters, and could have done so at any time over the period of the tenancy, it was liable for not carrying out those repairs even if it did not have notice of the defect.”
[24]I was referred to other authorities, but in my view these took neither party’s arguments materially further.

The Rival Contentions

[25]Mr Colville’s headline submission was that section 4(4) created a form of strict liability. This was its purpose, and flowed from its true construction. Either the effect of the sub-section was to impute knowledge to the landlord, or (albeit this may have been a different way of advancing the same point) the landlord was impressed with an obligation to inspect, maintain and repair which was unavoidable. The relevant defect, for sub-section (3) purposes, fell within the scope of that obligation, and this was sufficient to secure recovery for the Appellant. The whole point of sub-section (4) is to preclude landlords from asserting Nelsonian ignorance of defects. On my understanding of his submission, Mr Colville’s related core contention was that sub-section (2) has no application in a sub-section (4) case, because were it to apply the later sub-section would always have no practical effect; and that the Judge was wrong to hold that the deemed obligation arising by virtue of sub-section (4) was qualified by the earlier sub-section.[26]Naturally, and unsurprisingly, Mr Colville relied heavily on the reasoning of Laws LJ in Alker. Although this was an extempore judgment, this court should be slow to depart from authoritative statements of principle emanating from the Court of Appeal, particularly a constitution of such strength.[27]Under pressure from me, the focus of Mr Colville’s argument vacillated slightly. On occasion, he was disposed to submit that the liability he was seeking to impress on the Respondent was not strict, although ultimately he accepted that it was. At the end of his opening, he was inclined to agree with me that the logic of his argument was to the effect that sub-section (4) created a standalone obligation which did not feed into sub-section (1). In my view, he should have maintained his original formulation, namely that sub-section (4) extended the sub-section (1) duty, and this is the basis on which I propose to proceed.[28]Mr Philip Godfrey was briefed late in the day, but his submissions were in no sense diminished by that. He had carried out thorough and helpful researches, had prepared a succinct skeleton argument, and he then confined his oral argument to essential matters. His headline submission was that section 4 created one obligation, not two, and that it was an obligation to exercise reasonable care in all the circumstances. Accordingly, there simply was no scope for the type of strict obligation contended for by the Appellant. Mr Godfrey submitted that sub-section (4) was a gateway provision: when its preconditions were met, the obligation was deemed to arise; and, critically, this was exactly the same obligation as one sees in sub-section (1). Thus, on this approach sub-section (4) was enacted to close a lacuna in the law (viz. cases where there was no express or implied repairing covenant, and only a right of entry), and achieved that closure not by placing the tenant in any better position than one who had the benefit of an express covenant, but in precisely the same position.[29]Mr Godfrey did not accept that sub-section (2) was rendered nugatory in these circumstances. This sub-section is not just concerned with actual knowledge. Constructive knowledge could arise having regard to all the circumstances of the case, including information obtained from inspections which either were or ought to have been performed. In particular, the sub-section was not limited to information which was only capable of being obtained from the tenant.[30]When pressed by me to set out his position on Alker, Mr Godfrey was not diffident in submitting that paragraph 6 of the judgment of Laws LJ was both obiter and wrong.[31]Finally, Mr Godfrey submitted that if the Appellant’s submissions were correct, section 4(1) would never have any practical application because a tenant could always rely on express or implied entry rights (section 16 of the Housing Act 1988 confers a right on landlords to enter assured premises and to have accorded to them all reasonable facilities for the execution of repairs).

Conclusions

[32]In principle, section 4(4) could apply to two sorts of situations. The first is where the relevant defect falls outside the ambit of sub-section (1) altogether, either in the absence of an express repairing covenant or because the implied covenant under section 11 of the Landlord and Tenant Act 1985 is inapplicable to the defect in question. The second is where the relevant defect does fall within the ambit of sub-section (1) but sub-section (2) cannot be satisfied on the facts. The present case falls within this second category. If Mr Colville’s submissions were correct, the Appellant must find herself in a better position under section 4(4) than she is under section 4(1). This, to my mind, would be an uncomfortable outcome, particularly – as Mr Godfrey points out – all assured tenancies will have express or implied entry rights. The logical resting-place of Mr Colville’s submissions is that section 4(1) is otiose because tenants will always have better rights under section 4(4).[33]I agree with Mr Godfrey that the purpose of section 4(4) is not to create a strict liability but to extend the application of section 4(1) to relevant defects which are outwith its scope (the first of my foregoing situations), and therefore to bring them within the scope of the section as a whole. The purpose of section 4(4) is not to confer an additional or alternative route to recovery where the claim under section 4(1) fails on its facts because section 4(2) is unsatisfied.[34]As Gibson LJ has explained, the sub-section is a deeming provision which treats the landlord as being under a section 4(1) obligation in circumstances where the lease and statute does not confer such an obligation. Crucially, in my judgment, this deemed obligation is exactly the same in terms of its nature and content as the obligation that would have been owed under section 4(1) had that sub-section been applicable. This conclusion flows from the language of the sub-section – “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” - because the reference to “obligation” there must be a reference to the (same) obligation under sub-section (1). Treatment “for the purposes of sub-section (1)” has precisely that purport and effect. Of course, the sub-section (1) obligation is one to exercise reasonable care in all the circumstances; it is not a strict obligation. Yet the effect of Mr Colville’s submissions is to treat the sub-section (4) obligation as something different in nature and kind from the obligation under sub-section (1). Not merely does his approach decouple the sub-sections in circumstances where they are, in truth, chained together, it serves to create two different types of obligation within the same section of the DPA 1972.[35]Mr Colville’s submissions also seek to neutralise or circumvent sub-section (2), but I do not agree with him that this sub-section is redundant in a sub-section (4) case. When sub-section (4) applies, so does sub-section (1); and for the purposes of sub-section (1), in establishing the content of the duty, regard must be had to whether the landlord “ought in all the circumstances to have known of the relevant defect.” To my mind, this mandates an inquiry by the court into information which the landlord obtained, or ought to have obtained, during the course of carrying out any inspections, and information which he would have obtained had he carried out such inspections as he ought to have performed properly. In my judgment, liability may be established in a sub-section (4) case either in circumstances where a landlord’s inspection(s) are negligently performed, or where the landlord fails to carry out proper inspections because he abstains from implementing a reasonable system for performing them. I am not intending to set out exhaustive categories, but these must the paradigm instances.[36]In the present case, it is true that the Judge’s analysis was that liability could not arise under sub-section (4) because there was no actual or constructive knowledge of the defect to bring it within sub-section (2). The Judge based this conclusion on his finding that the defect was “completely and utterly latent”. I would come to the same conclusion by a slightly different and more extended route. I think that one needs to bring under scrutiny the Respondent’s system for inspecting this property, and whether even an entirely reasonable system would have discovered the presence of this defect. I am told that there may have been some evidence before the Judge as to the Respondent’s system, but it is nowhere mentioned in the judgment. The Judge made no finding as to whether the Respondent, in the discharge of its deemed obligation to enter the demised premises for the purposes of inspection, maintenance and repair, exercised reasonable care or not. However, that omission makes no difference to the outcome since it must be an irresistible inference from the facts as found by the Judge that no careful inspection could have disclosed this defect located some distance below the surface of the garden lawn.[37]Ultimately, Mr Colville’s submissions misconstrue the terms “as if” and “obligation” in sub-section (4). The former serves to fix the landlord with the relevant obligation in circumstances where it would not otherwise arise. The latter does not serve to create a fresh, standalone obligation, but to make clear that the deemed obligation must be the same as that owed elsewhere in the section. It follows that this deeming provision has nothing to do with imputing knowledge (this concept is nowhere to be seen in the sub-section), but is solely concerned with imputing an obligation. So it must be that the sub-section (4) obligation, being the same as the sub-section (1) obligation, is also subject to sub-sections (2) and (3). On this approach we have a complete and harmonious code rather than a jumble of disjointed, inconsistent provisions.[38]My reasoning is wholly consistent with the conclusions and recommendations of the Law Commission, although I would have reached the same outcome without reference to these. It is also consistent with the decision of HHJ Thornton QC in Hannon, because I infer from paragraph 40 of his judgment in that case that there was no evidence of the local authority landlord ever seeking to enter the premises for the purpose of inspection, or having a proper system in that regard. It is less clear whether my reasoning is consistent with the obiter observations of the Court of Appeal in Alker, but it may be. In the first italicised sentence in paragraph 6 of Laws LJ’s judgment (see paragraph 21 above), reference is expressly made to the content of the duty – to take reasonable care. It was common ground, i.e. the contrary was not argued, that it did not matter that sub-section (2) was not fulfilled. On the facts of Alker, the issue was not really whether the landlord knew or ought to have known whether the door contained safety glass, but whether this was the sort of matter which the DPA 1972 was intended to address at all. In short, given that this was an inherent defect rather than one capable of repair, it was somewhat artificial to focus on sub-section (2).[39]However, if the correct interpretation of paragraph 6 of the judgment of Laws LJ is that a case brought on the basis of sub-section (4) could succeed even where sub-section (2) is not fulfilled, I cannot agree with that for the reasons I have given.[40]It follows that the appeal must be dismissed and the Respondent’s judgment upheld. Having regard to its costs schedule and subsequent clarification given by email, I assess the Respondent’s costs of the appeal in the sum of £4,000.

Cited in 1 later judgment