Jennifer Meech comments on a case that may impact how landlords carry out routine property inspections (Rogerson v Bolsover District Council  EWCA Civ 226).
Section 4 of the Defective Premises Act 1972 (DPA 1972) imposes an obligation on landlords to maintain their property so that it does not cause personal injury to “persons who might reasonably be expected to be affected by defects in the state of the premises”. This obligation only arises if the tenancy agreement under which the property is let contains an obligation for the landlord to maintain or repair the premises and the relevant defect is one that the landlord knew about or ought to have known about.
The duty imposed upon the landlord is the obligation to “take such care as is reasonable in all the circumstances”.
Ms Rogerson was a tenant of Bolsover District Council under a tenancy dated 15 July 2013. That tenancy agreement provided that the council would be liable to maintain the structure and exterior of the property.
In this case, there was a defect which could have been discovered by a simple test
On 7 September 2014, Ms Rogerson was mowing the lawn. Her foot fell through an inspection cover and into a water sewage chamber, causing her personal injury.
The Deputy District Judge who heard the trial (in the County Court at Nottingham) held that the council was liable to Ms Rogerson under section 4 of the DPA 1972 and awarded her £15,000. The Judge decided that the council was not aware of the defect in the manhole cover but that it should have been – a simple pressure test would have established that there was a problem.
On appeal, His Honour Judge Owen (also in the County Court at Nottingham) allowed the council’s appeal against the original decision.
A second appeal came before the Court of Appeal. The grounds upon which permission was granted were:
- whether a landlord can be liable under section 4 of the DPA 1972 because of a defect which would have been discovered if they had carried out a regular inspection
- if the landlord had a duty to inspect, was a visual inspection enough or should they have applied a pressure test, as held by the Deputy District Judge?
Landlords should make sure that they include a pressure test on manhole covers
The Court of Appeal allowed the appeal but declined to accept that landlords have a general duty to inspect. Lord Justice Males said that the question of whether landlords should inspect “does not arise in the abstract, but only as bearing on the question whether he ought in all the circumstances to have known about the defect” [paragraph 41]. In this case, there was a defect which could have been discovered (or at least the possibility of it could have been discovered) by a simple test – in those circumstances the council ought to have known about it.
Practitioners should also note that – although she rejected an argument that the accident created an adverse inference for Bolsover District Council to rebut – Lady Justice Nicola Davies accepted that the accident shifted the evidential burden on to the landlord.
There is no general duty on landlords to inspect premises. However, if a landlord has the ability to carry out inspections (for example between tenancies or on regular stock checks) and does not do so, they are likely to run into difficulty. Not least because they will struggle to put forward any evidence that a particular element of the property was not defective.
Although the Court of Appeal did not find a general duty to inspect, it is likely that this case will have a practical impact on landlords – particularly institutional landlords. In order to avoid a future claim which cites Rogerson, landlords should make sure that when they carry out their general inspection of a property they include a pressure test on manhole covers (and equivalent coverings) and record the results of those tests.
Just as the Court of Appeal’s decision in Sykes v Harry  EWCA Civ 167 led to a greater awareness of the effects of carbon monoxide and the need for landlords to ensure monitors were in place, this case is likely to add manhole covers to the list of items to be checked on a routine inspection.