In these litigious times, there is an increasing emphasis on safety and risk assessment. As every landlord and agent knows, residential properties are potentially full of risks and hazards; gas boilers can produce lethal carbon monoxide fumes, open fires can cause burns, and stairs and steps can be the cause of serious falls.
This article, and the following one, aim to look at the law of negligence and the landlord's duty of care^..

What is negligence?

Negligence may be loosely defined as a failure to take proper care. If that lack of care is shown by a landlord who fails to maintain common parts in safe condition, or a property manager who gives his client landlord bad advice, then they may have to pay compensation to the person injured, or to the person who acted on the advice and lost money. The law says that you must take care if it is 'reasonably foreseeable' that your activities (or inability to act) could cause harm to someone else.

Caveat emptor

The long-established principle of caveat emptor (or 'buyer beware') provided the landlord with a basic immunity from an action in negligence for injury or damage caused by the condition of the property let and, traditionally, landlords did not have a duty of care to their tenants. This principle was stated in an early case some hundred years ago (when an occupier sustained serious injury when the tenant's wife fell through the seriously dilapidated kitchen floor and sustained multiple injuries);
'A landlord who lets a house in a dangerous state is not liable to the tenant's customers or guests for accidents happening during the term: for fraud apart, there is no law against letting a tumble-down house;’¹

The landlord's immunity has, however, been gradually eroded by case law and statute and a landlord that relies on this old and outdated ruling to avoid necessary repairs to obvious building defects is liable to find himself at the receiving end of a negligence lawsuit and a heavy compensation claim.

The law continues to evolve, and is moving to a more consumerist approach where the tenant is deemed to be protected against the worst conditions and risks. It is now possible for tenants and occupiers to take action for negligence and breach of statutory duty in certain circumstances although, for the landlord, a certain degree of immunity under the principles of caveat emptor remains. A good understanding of the principles of the modern law requires that we study some of the key cases and statutes where the fundamental principles relating to property condition and duty of care have been developed.

Smith v Marrable case

In 1843, the courts recognised the first major exception to the caveat emptor rule. A landlord named Mr Smith rented out furnished premises, at 5 Brunswick Place, Brighton to Sir Thomas Marrable. Lady Marrable subsequently found the premises to be infested with bugs and Sir Thomas gave notice to Mr Smith that he was giving up the tenancy. Mr Smith argued that Sir Thomas had no right to give up this tenancy because it had been agreed for a minimum term of 5 weeks and only five days had elapsed.

The Court held that Mr Smith had impliedly promised that the premises would be fit for habitation at the commencement of the tenancy, because the agreement was for a furnished letting. The exception to caveat emptor was justified on the basis that a prospective tenant of furnished premises did not have unimpeded freedom to inspect those premises to see the nature and quality of everything that he was getting.²
Until the introduction of statutory fitness standards in 1985, landlords of unfurnished premises owed no duty of care due to general condition of property when let.³ These fitness standards survived until their recent replacement by the Housing Health and Safety Rating System in 2006 - a move which abandons a system of prescribed standards in favour of a risk-based system for assessing property condition.⁴

Duty of Care

Agents and landlords will enter into legal relationships, from which mutual duties arise, with those people with whom they have a contractual relationship. So a letting agent signs an agency agreement with the landlord which sets out their duties and obligations one to the other. Similarly, a landlord signs a tenancy agreement with a tenant which sets out their mutual responsibilities and duties. In these cases the parties decide between themselves just what their mutual responsibilities will be.
However, there are some situations where the law will impose a duty even where there is no contractual relationship between the parties. In some instances this duty will be imposed by statute, for example, the Occupiers' Liability Act 1957 (which we will look at later) and sometimes by the operation of the common law. The duty of care can arise not only to the occupiers of his or her property, but also potentially to their visitors and their neighbours.

Donoghue v Stevenson
A duty arises when the person under the duty of care ought reasonably have foreseen that another person might be affected by his or her actions or omissions - principles that were first set out in the famous case of Donoghue v Stevenson [1932] - where a Scottish fizzy drinks manufacturer was held to be liable to a lady poisoned by the decomposed remains of a snail discovered within a bottle of ginger-beer.⁵

The Donoghue case was the starting point of the law of tort and the development of the concept of a duty of care in negligence. This legal concept can be important for both agents and landlords and should be borne in mind when considering the consequences of both acts and omissions. The bulk of the law in this area is case law based rather than statutory and, therefore, the scope of the concept of a 'duty of care' cannot be said to be fully developed. Existing cases tell us that, amongst others, a duty of care arises in the relationship between employers and their employees and an occupier and their visitors. How can we tell when the duty will arise?

Foreseeable, proximate and fair

The current law is based on Lord Bridge's speech in the House of Lords in 1990 in a case called Caparo v Dickman.⁶
This case introduced a 'threefold' test for a duty of care:-

• the harm must be reasonably foreseeable. A negligence case brought against a local authority landlord for injuries sustained by a young child falling against hot central heating pipes failed because the danger was deemed so remote that the accident was not foreseeable;⁷
• there must be proximity in the relationship between the claimant and the defendant. A lady visiting the occupiers of a first floor flat was rendered paraplegic following a fall from a dangerously designed entrance-way. Being defect in the ‘common parts’, the visitor was awarded substantial damages against the landlord of the building. A tenant's visitor has an implied permission to enter onto the premises and therefore satisfies the proximity test;⁸
• it must be fair, just and reasonable in the circumstances for a duty of care to be imposed. A tenant telephoned his landlord to report frozen pipes but was not told to turn off the stopcock, nor told where the stopcock was located. The court held that it was reasonable impose a duty of care - the landlords were in a position to abate the hazard and were negligent in taking no action to assist.⁹

Design and construction

Notwithstanding the landlord's historical immunity, there are specific situations where the courts have held that a landlord can be liable for negligence when letting a property. Builders, developers, architects, surveyors and designers who have failed to exercise reasonable care in the work that they have carried out on a building have been held to be liable to the occupiers of that building for injury or damage resulting from their negligence.¹⁰

In Rimmer v Liverpool City Council, the landlord was also the designer and builder of a block of flats. Here, the tenant was injured when he stumbled and put his hand through a glass panel in an internal wall of the flat. The Court of Appeal stated that whilst ordinarily, landlords of unfurnished premises owe no duty of care to tenants with regards the condition of the premises when they are let, landlords who also designed and built premises, in their capacity as designer or builder, owe a duty of care to all persons who might reasonably be expected to be affected by faults in the design or construction of the premises.¹¹

Similarly, if the landlord carries out pre-letting work which is defective, he may also become liable. In Walker v Nottingham CC, the council, as landlords, repaired a handrail to the stairs in the plaintiff tenant's council house. The tenant slipped on the stairs, and relying on the handrail for support, fell and was badly injured when it gave way. The Court held that the landlord was liable in common law negligence because it had re-fixed the handrail in 1990 without exercising proper skill and care.¹²

Common parts

A landlord loses the basic right to immunity from an action in negligence for injury or damage caused by condition of the property let, where the landlord owns or retains control of parts of the building such as staircases, lifts, or corridors - say in the case where the landlord owns a block of flats, or a house split into separate flats. Because the landlord has control and unfettered access to these parts, the landlord is under a duty of care to keep these parts of the building in condition so they do not cause injury to the tenant or damage to the tenant's property.13 In the recent case of Habinteg Housing Association v James, tenants took action against the landlord following a cockroach infestation. The Court of Appeal held that there was no liability on the landlord because he retained no common parts in the building, and no other conclusive evidence that could link the infestation to the landlord.¹⁴

In 2006, Bristol City Council attracted the attention of the tabloid press when it sent out letters with an unusual request asking council tenants living in its blocks of flats to remove doormats from outside their homes because they may pose a tripping hazard. It threatened to confiscate the mats if tenants did not comply. The council were simply exercising their right of control over the common parts, and reducing the perceived risks to their tenants and any visitors to the flats. There have, to date, been no 'doormat deaths', or rulings in the higher courts which suggest that landlords need to take such heavy-handed steps to reduce doorstep hazards. So perhaps the council were being somewhat overzealous in their risk assessment in this instance.

Disrepair

The most common situation where a landlord owes a duty of care to his tenants is in relation to disrepair arising during the tenancy. Where a landlord is in breach of his repairing obligations and as result of the defect, the tenant, or some person visiting the property is injured, or suffers loss, then a landlord could be held liable in negligence.
With the exception of defects or hazards arising within any common parts controlled by the landlord, the general rule is that liability does not arise until the landlord has received notice of the disrepair.

Knowledge

Once a landlord, or his agent, has received certain information, or knowledge, then there will often be an obligation to act on it. So, negligence occurs not only where a person fails to take appropriate precautions, but also where a person fails to do something that a reasonable man would do.
To take an example to illustrate the problem, a letting agent asks an electrical contractor to inspect a particular rental property for an annual inspection to satisfy the requirements of the Electrical Equipment (Safety) Regulations 1994. The electrician now informs the agent that he believes that there is work to be carried out in the property that will cost the landlord over £1,500. The electrician says that the current electrical installation is dangerous. What does the agent do now? What happens if he does not act, hoping that nothing will happen and the tenant is injured? What happens if he passes the information on to the landlord but does nothing to follow the matter up?

The agent has a duty of care to his landlord based on the agency agreement but he has no contractual relationship with the tenant. If the agent knew nothing, and could not be expected to know, about the unsafe electrical fitting and the tenant was injured as a consequence then the tenant, although having a cause of action against the landlord, could not take action against the agent. However where he does know, and you apply the Caparo test above; the claimant is foreseeable, the parties are sufficiently proximate, and it would be reasonable for a court to hold that it is fair, just and reasonable for the agent to be liable in addition to the landlord. So if the agent does nothing with his knowledge he could be liable for failure to act - the knowledge is the trigger that sets off the potential liability.
Good practice suggests that knowledge, and key actions taken as a result of the knowledge should be recorded as an audit trail. A landlord or agent could be called upon to provide evidence that the duty of care has been discharged in a future negligence claim.

Contributory negligence

Sometimes it happens that both parties have been negligent following an accident. This raises the principle of contributory negligence. In such cases, liability is apportionable between the claimant and the defendant, according to the relative fault deemed to attach to the claimant in the incident.
Take, for example, the situation where there is a small fire in a property – perhaps caused by a faulty central heating boiler. The tenant then makes a claim against the landlord. A tenant whose clothes are damaged in the fire may find that his claim is reduced because he is guilty of contributory negligence if, for example, the tenant may have forgotten to replace the batteries in the smoke detector. The court could rule that a working detector might have alerted the occupants to a fire at the property before it had a chance to take hold.

The 'reasonable man' test

Negligence is to be objectively measured by the 'reasonable man' test laid down by Baron Alderson in Blyth v Birmingham Waterworks in 1856¹⁵; "Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do."

It is a standard of reasonableness. It is a standard that has to be reached even by the inexperienced. The law examines the circumstances complained of, in retrospect, to decide whether or not the defendant breached his duty of care. Nowadays where the defendant is likely to be a company and so as a business it will be expected to perform to the standards of an expert. A modern definition which implicitly recognises this is; "Negligence consists in falling below the standard of care required in the circumstances to protect others from the unreasonable risk of harm." ¹⁶
When a person has undertaken a duty that requires special or extraordinary skill, he will be expected to use a higher standard of care. For example, one would expect from a builder the degree of skill appropriate to a reasonably competent member of his trade.¹⁷ Such a person may, therefore, be negligent even though he does his best.

Damages

The purpose of damages is to put the victim back in the position he was before he was wronged, insofar as money can do so. It is also to cause the tortfeasor (i.e. the person committing the tort) to properly regulate his affairs. It is also to vindicate the law, that is to say, to show disapproval of such tortious conduct.
It is better for a tortfeasor to injure a poor man than to injure a rich man; the rich man will lose more and therefore claim more. Damages are not intended to punish the defendant, except in special circumstances such as exemplary or punitive damages. Claimants will often sue because insurance companies will eventually pay the damages. So, for example, hospitals are sued for medical negligence and local authorities are sued where victims trip and fall because of, for example, loose paving. Lawyers frequently advise clients to "never sue a man of straw" (someone with no money), and always go after "the deepest pocket". So if a claimant has a choice of who to sue then he may sue the agent rather than the private landlord.

Nuisance

Property hazards may also be controlled under the rules relating to nuisance. The law of nuisance is partly common law, and partly statutory in nature. Nuisance at common law allows one occupier to sue another if there was anything happening in the first property which affected the second; for example water leaking from one flat into another, or even excessive noise disturbance created by one of the occupiers. The occupier of the second flat could sue the occupier of the first.

However most of the modern enforcement provisions are statutory. Part III or the Environmental Protection Act 1990 contains provisions relating to statutory nuisance. A statutory nuisance means 'any premises in such a state as to be prejudicial to health or a nuisance.' Prejudicial to health is defined as 'injurious or likely to cause injury to health'¹⁸ and is determined by Environmental Health Officers and doctors. These provisions that relate to all housing and require that the premises are kept in a condition so as not to be prejudicial to health or a nuisance.
These provisions which can be enforced by the local authority or by any 'person aggrieved' directly against the property owner, are not extensively applied.

Conclusion

Landlords’ duties have evolved as the law adopts an increasingly consumer-oriented approach to tenants and their safety. Landlords and agents need to remember that others may be affected by the consequences of their actions and bear this in mind when making decisions.

 

 

References
1.   Cavalier v Pope [1906] AC 428 quoting the earlier judgment of Erle C.J. in Robbins v Jones (1863)
2.   Smith v Marrable [1843) 152 ER 693
3.   Rimmer v Liverpool CC, 1994
4.   See Letting Update Journal April 2005, page 15
5.   Donoghue v Stevenson [1932] S.C. HL 31
6.   Caparo Industries Plc. v Dickman [1990] 1 All ER 568
7.   Ryan v London Borough of Camden (1982) 8 HLR 75, and Boeteng v Camden LBC (2000) CA
8.   Sowerby v Charlton [2005] EWHC 949 (QB)
9.   Stockley v Knowsley MBC [1986] EGLR 141
10.  Blyth v Birmingham Waterworks (1856)
11.  Rimmer v Liverpool City Council [1984] 1 All ER 930
12.  Walker v Nottingham CC, Legal Action, May 1997
13.  Cockburn v Smith [1924] 2 KB 119
14.  Habinteg Housing Association v James (1995) 27 HLR 299
15.  Blyth v Birmingham Waterworks (1856) 11 Ex 781
16.  Mullis & Oliphant, Tort, p70
17.  Greave & Co v Banyham Meikle & Partners, [1974] 3 All ER 666
18.  Environmental Protection Act 1990 s.79(7)