Keoghs Insight

Author

Kate Burt

Case of the quarter

AWARE17/04/2013
Casualty Aware 3

The claimant (C) brought a claim against the insured (D) following an incident on 26 August 2009 where he caught his foot in an uncovered storm drain on the driveway of premises he leased from C.

C used the premises for his automobile body repair business. There was uncertainty over whether the drain fell within the premises due to the vagueness of the plan of the premises attached to the tenancy agreement and the fact that the lease itself did not define the extent of the premises. Whether the drain fell within the demised premises was crucial in determining the applicable law.

It was C’s position that D was responsible for the inspection, maintenance and repair of the drain cover and in allowing the drain to be uncovered breached the Landlord and Tenant Act 1985, Defective Premises Act 1972 and common law duties.

D was 84 years old at the time of trial and did not attend it to give evidence. Her son gave evidence that he regularly visited and inspected the property alone and on occasion accompanied his mother on her visits. He was also able to give evidence on the content of the lease, site issues and the background of the relationship with C. It was D’s case that C was responsible for maintaining the drain in question pursuant to the lease and indeed that C owned drain rods for the purposes of unblocking the drain in question.

At trial, C made an application to amend his particulars of claim to include allegations of breach of the Occupier’s Liability Act 1957. Following our opposition to the late change of C’s pleaded case, the application was dismissed.

We successfully persuaded the court that the Landlord and Tenant Act 1985 did not apply as this was not a residential lease. It was established that the drain fell outside the boundary of the leased premises and The Defective Premises Act 1972 did not therefore apply. C was left with common law negligence as his only cause­­ of action.

The judge did not accept that the drain was dangerous and disbelieved C’s assertion that he made previous complaints about the state of the drain. He found that C had assumed responsibility for the repair and maintenance of the drain and it was held that there had been no breach of duty.

Had C been successful in shoehorning in allegations of breach of the Occupier’s Liability 1957, it is unlikely this would have affected the outcome of the trial given the finding that the drain was not dangerous. Even if the accident had occurred within the boundary of the lease and the Defective Premises Act, life wouldn’t necessarily have been any easier for C. To establish liability under the Defective Premises Act the lease must impose on the landlord an obligation for the maintenance and repair of the premises.

D’s case was that the lease contained an express provision upon C to keep the premises in good order and did not impose upon D any duty to maintain the premises. This was in addition to the arguments that C had assumed responsibility for maintaining the drains and had bought drain rods for the purpose. Given the court’s findings it is difficult to see that they would have found the drain to be a ‘relevant defect’ for the purpose of the Act.

This case illustrates the typical claimant practice of raising as many allegations as possible in the hope that something will stick and demonstrates that, notwithstanding this, these cases can be defeated.

What else can we draw from this decision?

  • Make sure the accident actually occurred within the area covered by the lease/tenancy agreement. This may seem obvious but a thorough check may throw up surprises.
  • Clarify the respective obligations of the landlord and the tenant.
  • Has either party assumed the appropriate responsibility through their conduct? Read the agreement and witness evidence. Consider any deviation from the written agreement.
  • S11 of the Landlord and Tenant Act applies only to ‘dwelling houses’ not commercial properties.
  • Even if the Landlord and Tenant Act or Defective Premises Act do not apply the landlord may still owe a duty to visitors pursuant to S2(2) Occupiers Liability Act 1957 or simply a common law duty of care (see Lips v Older (2004)).