Distinction between improvements and repairs

Dodd v Raebarn Estates Ltd [2017] EWCA Civ 439, 21 June 2017

Mr Dodd was the husband of the appellant, Megan Dodd. The pair, who were recently married, spent Christmas day, 2007, celebrating with friends in a flat on the Kensington Park Road in West London. Toward the end of the evening Mr Dodd went downstairs to smoke, lost his footing on the stair and fell, suffering extremely serious head injuries which rendered him comatose and resulted in his death two years later.

There were several ‘tiers’ of proprietary interest in the property, with the freehold being owned by Raebarn Estates (the respondent), a head lease of 125 years held by 194-196 Kensington Park Road Ltd and an underlease held by a Mr Pereira.

Mrs Dodd brought claims against all three parties. The issue on appeal was whether Raebarn could be liable to Mrs Dodd under s4(4) Defective Premises Act 1972, having failed to install a handrail alongside the staircase. This turned on whether or not the lack of a handrail was a relevant defect within the meaning of s4(3) of that Act, i.e. whether it fell within the scope of Raebarn’s right to maintain and repair the property.

Dismissing Mrs Dodd’s appeal, the Court held that Raebarn were not liable. The phrase ‘maintenance or repair’ in s4(3) is to be interpreted according to the meaning that it has in the general law of landlord and tenant. As such, the extent of the duty under s4 is no more extensive than the covenant to repair owed (or treated as being owed) by the landlord in any particular case and a duty to repair is not the same as a duty to make safe.

In this case, on the hypothesis that there never been a handrail, there could be no subsequent damage or deterioration to it and, accordingly, no disrepair, meaning that there could be no breach of s4.

On the alternative hypothesis that there had been a handrail but it had been removed and not replaced, there was still no disrepair. The fact that part of a building, such as a staircase, may not function adequately does mean it is in disrepair. In this case, the walls beside the staircase and the individual stairs were sound and there was nothing wrong with the floor covering. As such the staircase was not in disrepair and Raebarn could not be liable.

The full judgment is available: Dodd v Raebarn Estates Ltd [2017] EWCA Civ 439, 21 June 2017