Sykes v Harry and another [2001]

The claimant tenant and his wife held a shorthold tenancy of premises owned by the landlord. Shortly before granting the tenancy the landlord had installed a gas fire to replace a defective one, but had not entered into any service agreement relating to the fire. In February 1994 the claimant was taken to hospital and discovered to be suffering from carbon monoxide poisoning. The claimant alleged that the landlord was in breach of his implied obligations under s. 11 Landlord and Tenant Act 1985 to keep the fire in repair, and for breach of the duty of care owed by the landlord under s. 4 Defective Premises Act 1972.

At the trial it was admitted that the claimant’s poisoning was caused by carbon monoxide emitted from the fire. It was held that the defects in the fire would have been apparent on routine servicing, but that the landlord was not liable under s. 11 or s. 4. s. 4 does not impose liability in the absence of the landlord’s knowledge of the defect.

On appeal:

HELD: The Court of Appeal held that the purpose of s. 4(3) was to make it clear that a landlord’s broad duty of care under s. 4(1) was responsibility only for such defects as expressed or implied in the lease. A person sued under s. 4 would not have to show that the landlord had notice of the defect, just that the landlord failed to “take such care as is reasonable in the circumstances” to see that the claimant is safe from personal injury. The trial judge’s assessment that the claimant tenant was 80% contributorily negligent was upheld.

A tenant in occupation and in immediate control of the premises is in the best position either to effect the necessary repairs or to bring them to the attention of the landlord, where the burden of repair rests with him.