#14675 - Defective Premises Liability For Animals - GDL Tort Law

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Defective Premises

Claims under the Defective Premises Act 1972 relate to landlords and builders as defendants.

Landlords

Old Law: immunity

• J. Cooke: ‘The common law was opposed to actions in tort and the landlord was immune from a tort action in respect of dangerous premises … The immunity of a landlord from actions in negligence was confirmed by the Court of Appeal in 1984’ (Rimmer below)

Cavalier v Pope

House let out to C’s husband; the floor needed repairing & the landlord knew about this but didn’t do any repairs. One day she fell through the floor

Held: couldn’t sue the landlord for defective premises. Husband successfully sued in contract

Rimmer v Liverpool City Council

C was a tenant in the property that was being let out. There was a glass panel in one of the walls and C objected to this as he was worried his son would break it and injure himself. The defendant Council said this was a standard design & that they couldn’t do anything about it. C tripped over and put his hand through the glass. Rimmer sued the Council as landlords on the basis that the ‘standard design’ was negligent

Held: a landlord doesn’t owe a duty of care in relation to negligence under the Defective Premises Act, however this particular landlord could be sued as he had designed & built the premises. This made them qualify as a builder or designer, not a landlord.

New Law: 1972 Act

Rather than using the old S.4 Occupier’s Liability Act 1957, which said landlords could be liable for injury caused by the state of premises as an occupier, S.4 Defective Premises Act 1972 is now the appropriate provision for this type of claim, establishing a duty of care as follows:

(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.

• B. Handy, “The duty under section 4 of the Defective Premises Act 1972 (‘the Act’) is as important as it is confusing. It is often the best and sometimes the only way of successfully claiming for injuries caused by the dangerous condition of rented premises.”

When does the duty apply?

The duty applies only when the landlord has a duty and/or right to maintain/repair property. This duty extends to anyone who might reasonably be expected to be affected by this duty

• J. Cooke: ‘The duty will be owed where the landlords know, or ought to have known, of a defect which would constitute a breach of their obligation to the tenant to repair the premises. It is not necessary that the landlord knows the precise defect provided that he has failed to take reasonable care in the circumstances of the case to see that the tenant was reasonably safe’.

Sykes v Harry

Landlord let out premises which had gas fires; when the landlord let out the premises the fires hadn’t been serviced in 8 years. C suffered brain damage due to carbon monoxide poisoning. The landlord didn’t know about the defects here, so the question here was whether he should have known?

Held: he should have been aware of the dangers of carbon monoxide poisoning as a result of the gas fires; by failing to maintain/repair the gas fires he was in breach of S.4

Who is the duty owed to?

• J. Cooke: “the duty will be owed to the tenant, residents, neighbours and passers-by on the highway. Whether a trespasser would be a foreseeable claimant is not known”

Builders

S.1(1) Defective Premises Act 1972 establishes a duty of care as follows: to ‘a person taking on work for or in the connection with the provision of a dwelling … to see that the work which he takes on is done in a workmanlike or, as the case may be, professional manner, with proper materials and so that as regards that work the dwelling will be fit for habitation when completed.’

• J. Cooke: ‘Parliament created a limited form of protection from builders…[in the form of] a three-part duty: that the work will be done in a workmanlike manner, proper materials will be used, and that the house will be fit for human habitation’.

When does the duty apply?

S.1(1) is limited to ‘dwellings’.

Catlin Estates Ltd v Carter Jonas

To do with the definition of ‘dwelling’ - whether or not a shooting lodge was a dwelling

Held: (HC)“a dwelling-house is a building used or capable of being used as a dwelling-house” (helpful!) and not used primarily as an industrial or commercial purposes – the shooting lodge was seen as a dwelling-house

Rendlesham Estates Plc and others v Barr Ltd

Held: defines dwelling as ‘a place where one family lives to the exclusion of another’

Jenson v Faux

Owner of a coal-seller wanted to convert it into a basement and contracted D to do this conversion. He then sold the house to C who then sought to sue D for bad works

What degree of enlargement of one dwelling do you need to warrant another dwelling?

Held: too minor a change to warrant its being a new dwelling

What is the standard of care?

“workmanlike manner” “professional manner” with “proper materials” - is this reasonable care?

Most textbooks interpret this as a higher standard than reasonable care i.e. it may be different from negligence, however there are no cases which deal with this point – but it does follow normal principles about professional standards of care

• M. Lunney and K. Oliphant: ‘Liability is not strict but is based upon a failure to act in a workmanlike and professional manner, which may be stricter in some ways than the negligence standard’.

Who is the duty owed to?

Anyone with a legal interest in the dwelling: you don’t have to have ordered the work to be able to sue under the Act

What is meant by ‘fit for habitation’?

• Rendlesham Estates & others v Barr (above): for a dwelling to be fit for habitation, it has to be capable, upon completion and without any remedial works being carried out, of occupation for a reasonable time without firstly breaches to the health/safety to the occupant, or secondly undue inconvenience or discomfort to the occupant. It needs to be fit for habitation for all classes of people who might use it.

There is a six year limitation period: the time limit starts ticking as soon as the building is completed (this means that most houses will be too old to be touched by this Act, unless there have been extensions built)

Liability for Animals

• J. Cooke: ‘Liability for damage caused by animals falls under two heads. There are specific statutory rules contained in the Animals Act 1971 and a person may also be liable at common law in a number of torts … Where an action is brought in a tort such as … nuisance, for damage caused by animals, the usual rules of that tort will apply …’

The Animals Act 1971 categorises animals into:

• Dangerous species – strict liability imposed for any damage caused

• Non-dangerous species – fault-based liability imposed only in certain circumstances

Who is liable?

S.6(3): a ‘keeper’ is liable under the Act. They must own the animal or have it in their possession, or they are the head of a household wherein a child under the age of 16 owns an animal

S.6(4): where an...