Dodd v Raebarn Estates Ltd & Ors

Factual and Procedural Background

This appeal concerns a claim brought by the Plaintiff, widow and executrix of the deceased, arising from the death of her late husband due to a fall down a staircase in a residential building in The City. The deceased and the Plaintiff were guests of the sixth defendant (D6), the leaseholder of a flat in a building at 194-196 Kensington Park Road, Notting Hill. The fall allegedly resulted from defects in the staircase, notably the absence of a handrail. The Plaintiff alleges that the freehold owner (Raebarn), comprising the first to third defendants, is responsible for the defects.

The building is a three-storey Victorian structure with retail premises on the ground floor and residential flats above. Raebarn was the freehold owner until 2007, when the freehold was assigned to the second and third defendants. In 1987, Raebarn granted a 125-year headlease of the upper floors to the fourth defendant (D4), a developer who converted the upper floors into flats, including installing a new staircase around 1988. The headlease's wording and accompanying plans created ambiguity as to whether the staircase and ground floor common parts were demised to D4 or retained by Raebarn.

The Plaintiff's claims are made under the Fatal Accidents Act 1976 and on behalf of the deceased's estate under the Law Reform (Miscellaneous Provisions) Act 1934. The claims assert negligence, breach of duty under the Occupiers' Liability Act 1957, and breach of duty under the Defective Premises Act 1972 against Raebarn in respect of the staircase's condition.

Raebarn applied for summary judgment and strike out of the claim, contending no reasonable cause of action existed. The Master granted the application, concluding the headlease demised the staircase to D4, so Raebarn had no control or duty over it. Permission to appeal was granted.

Legal Issues Presented

1. Whether the construction of the headlease is a question suitable for summary determination or requires a trial, specifically whether the staircase and ground floor access were demised to D4 or retained by Raebarn.
2. Whether Raebarn owed a duty of care to the deceased under the Occupiers' Liability Act 1957 as an occupier of the common parts.
3. Whether Raebarn owed a duty under the Defective Premises Act 1972, particularly under section 4, arising from its right to enter and repair the premises.
4. Whether Raebarn owed a common law duty of care in negligence for the alleged defects in the staircase.
5. Whether the absence of a handrail and other defects constituted relevant defects under the Defective Premises Act 1972.
6. Whether Raebarn had a duty to inspect the premises to discover defects.

Arguments of the Parties

Plaintiff's Arguments

• The headlease's construction is ambiguous and requires trial evidence; it was inappropriate to decide it summarily.
• Raebarn owed a duty of care under the Occupiers' Liability Act 1957 as occupier of the staircase and common parts.
• Under section 4(4) of the Defective Premises Act 1972, Raebarn's right to enter for repairs equated to an obligation to repair, creating a duty to ensure safety of users.
• The absence of a handrail and other defects breached planning permission and Building Regulations and constituted relevant defects under the Defective Premises Act.
• Raebarn knew or ought to have known about the defects through visits, inspections, and managing agents, thus fulfilling the knowledge requirement under section 4(2) of the Act.
• Raebarn had a duty to inspect the staircase periodically to ensure compliance and safety.
• Raebarn owed a common law duty of care in negligence towards visitors like the deceased.

Raebarn's Arguments

• The headlease clearly demised the staircase and access to D4, and Raebarn had no control over the staircase or duty as occupier.
• The principle of corrective interpretation justified resolving the ambiguity in favor of Raebarn's interpretation, which accords with commercial common sense.
• Raebarn's duty under the Defective Premises Act is limited to the scope of its repairing covenant; there was no relevant defect as the staircase was not out of repair but simply lacked a handrail.
• There is no general duty on landlords to inspect to ensure compliance with planning permission or Building Regulations; such duties fall on the tenant and local authority.
• The absence of a handrail does not constitute a relevant defect under the Defective Premises Act unless it was removed after construction, which was not evidenced.
• The common law duty of care does not apply as Raebarn was not responsible for the design, building, or maintenance of the staircase.
• The claim should be struck out as there is no real prospect of success on any part.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first addressed the construction of the headlease, noting an apparent conflict between the verbal description and the plans annexed. Applying established principles from leading authorities on contractual interpretation, including the Investors Compensation Scheme and Rainy Sky, the court found that the parties clearly intended the demise of the staircase and access to the upper floors to be included in the headlease to D4. The conflicting wording was a drafting error, justifying corrective interpretation to give effect to the parties' commercial intentions. The surrender of the staircase in 194 KPR to Raebarn further supported this conclusion.

Consequently, Raebarn was not occupier of the staircase and owed no duty under the Occupiers' Liability Act 1957. The claim under that Act was properly dismissed on summary judgment.

Regarding the Defective Premises Act 1972 claim, the court accepted Raebarn's right to enter and repair pursuant to the headlease, which could impose a duty under s4(1) to ensure safety from relevant defects. However, the court held that the absence of a handrail and other alleged defects did not constitute relevant defects within the meaning of s4(3) because the staircase was newly built and not out of repair. The duty to repair does not extend to making safe or remedying original design defects or non-compliance with planning permission and Building Regulations if the premises are not out of repair.

The claimant's argument that Raebarn had a duty to inspect was rejected. The court distinguished the facts from Sykes v Harry, holding that there was no basis for a general inspection duty absent knowledge or notice of defects. The responsibility for compliance with planning permission and Building Regulations lay with the tenant and local authority, not Raebarn.

On the common law negligence claim, the court reaffirmed the principle from Cavalier v Pope that a landlord who lets premises in a dangerous condition owes no duty of care to third parties for defects. As Raebarn was not the designer, builder, or occupier, and had no control over the staircase, the common law claim was unsustainable.

In sum, the court found no real prospect of success on any part of the claim, justifying summary judgment and strike out.

Holding and Implications

The court DISMISSED the Plaintiff's appeal and affirmed the Master’s order striking out the claim and granting summary judgment in favor of Raebarn.

The direct effect is that the Plaintiff's claims under the Fatal Accidents Act 1976, the Occupiers' Liability Act 1957, the Defective Premises Act 1972, and common law negligence fail against Raebarn. The ruling confirms the limited scope of landlord duties under the Defective Premises Act and common law, particularly where the landlord is not in control or responsible for defects arising from tenant works. No new legal precedent was established beyond application of existing principles.