When an unsafe structure does not trigger the landlord’s duty to repair

08 Mar 2016

The reach of the Defective Premises Act and what ‘defective’ means within the context of the Act, was the subject of detailed consideration in the QBD recently, in Dodd v Raebarn Estates [2016].

Raebarn were the freeholders of a mixed use property in London.  The upper floors had been demised to a developer who had installed a staircase as part of the refurbishment.  Mr Dodd – a visitor – fell down the stairs and tragically died of his injuries some time later.  His Estate brought a  Fatal Accident claim against the freeholder, Raebarn, and a range of other entities.   The claim was valued in excess of £1m.

The claim was brought on the basis of the OLA 1957, the DPA 1972 and common law negligence. The OLA claim was premised on an apparent anomaly in the demise to the developer, by which Raeburn sold the part of the building above first floor joist level.  Accordingly, said the Claimant, Raebarn retained ownership of the lower part of the stairs where the accident happened.

The DPA claim was brought on the basis of defects in the stairs regarding their construction 9as opposed to their maintenance) and in particular the absence of a handrail in breach of Building Regulations and planning permission.  The claimant relied, in part, on the decision in Hannon v Hillingdon Homes (2013) in which it was held that the bannister was part of the structure of a property and is absence amounted to a defect the landlord was obligated to remedy.

Raebarn applied to strike out the entire claim at a late state: after exchange of evidence and of witness and expert evidence.  Their case was that the claim had no reasonable prospect of success in law, even assuming all the relevant the facts in the claimants favour.

Master Leslie struck the claim out after a full day hearing.  The matter was then appealed to the QBD, before HHJ Richard Parkes QC.

The court was willing to determine, on a summary basis, the apparent anomaly in the lease regarding the demise. The court notes that the parties to the lease had previously conducted themselves in such a way that was only compatible with the demise of the staircase to the developer, notwithstanding the wording of the lease.  The claimant was not a party to the lease and therefore could not seek ‘rectification’.  Accordingly, insofar as there was ambiguity or even mistake in the lease, the court was willing to determine that the developer was in fact (and law) the occupier of the staircase.  The OLA claim accordingly failed.

The DPA claim was closely analysed, as was the working of the Act itself.  The court determined that – even if the staircase was defective, it was not ‘out of repair’: there was no damage to the structure which required the landlord to make good.  A duty of repair/maintenance – or even to put something into good condition did not amount to a duty to make safe.

The court distinguished Hannon, on the basis that it was not authority for the proposition that the handrail was necessarily a ‘relevant defect’ within meaning of the DPA 1972 s.4(1).   Hannon involved the tenant removing a bannister which was already there, triggering the obligation of the landlord to repair the structure.   In this instance, the staircase had apparently been constructed (in breach of planning) without a handrail/bannister at all.   It was therefore arguably unsafe, but not ‘out of repair’.

The common law negligence claim foundered on the well-established principle in Cavalier v Pope (1906) as the court was not prepared to accept the submission that later decisions had rendered the common law negligence claim arguable.

The take away points from the decision might be:

  1. even substantial claims, with relatively complex facts, can be susceptible to summary judgement given the right approach; as illustrated by Wall v BCU (2015)
  2. Sometimes, the time to issue the strike out application is after disclosure and the exchange of witness evidence; as illustrated by Price v ECP (2015)
  3. In DPA claims, the distinction between defects, ‘relevant defects’ and actual disrepair is a critical one
  4.  Common law negligence claims against landlords are still a legal step too far for the courts to embrace.

Colm Nugent appeared for the successful parties above.


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