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Negligence

This content applies to England & Wales

Negligence actions available in the context of housing conditions and disrepairs.

Definition

Negligence is a common law tort. Case law has established a general duty not to cause injury or damage because of careless or negligent behaviour. In broad terms, a person would be negligent when s/he fails to do something which, in similar circumstances, a reasonable person would have done, or does something which a reasonable person would not have done.

When injury or damage result from that action or omission, the person breaching her/his duty of care can be found liable to pay compensation to the person injured or who suffered the damage.

Before a person can succeed in an action for negligence s/he must show that:[1]

  • a duty of care is owed to her/him
  • the duty of care has been breached (ie damage or injury was foreseeable and reasonable care was not taken), and
  • personal injury or damage to property has resulted.

Reasonableness

The concept of what is reasonable has been developed over the years by case law and will depend on the individual circumstances of each case.

Occupiers' liability

Under the Occupiers' Liability Act 1957, the occupier of premises owes a common duty of care to her/his visitors - that is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitors will be reasonably safe in using the premises for the purposes for which they are invited or permitted by the occupier to be there. The circumstances include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor so that, for example, an occupier must be prepared for children to be less careful than adults; and may expect that a person will appreciate and guard against any special risks.[2] An occupier must have regard to any known vulnerability and/or disability of a visitor and take steps to prevent the risk of injury or damage.[3]

In order to discharge the common duty of care, an occupier must either eliminate the risk of injury or damage to the visitor, or warn the visitor about the risk.

A landlord who lets premises but retains control of the common parts, such as the entrance hall, the stairs and the lift, is the occupier of such premises and owes a duty of care to the tenants, the tenants' households and their visitors.

For a duty of care to extend to people other than visitors (eg trespassers), the danger resulting from a landlord's negligence has to be due to the state of the premises and not a claimant's activity.[4] In addition, the problem must have been reasonably foreseeable.[5] The liability occurs where there is injury to someone or actual damage to the property, but it does not cover economic loss caused by the negligence, such as a reduction in the value of a property where a defect has been discovered.[6]

In a case where a tenant sustained injuries falling through a skylight while dancing on the roof of her flat, the landlord was found not to owe a duty of care. There was no evidence of the unsuitability or disrepair of the skylight cover. Nor was there evidence that the landlord was aware that anyone would make use of the roof as the tenant had never received permission to go on to the roof for any purpose. The danger to the tenant had arisen from her activity rather than the state of the premises so the landlord was not liable.[7] In another case, however, the fall of a visually impaired visitor from a window left open by the occupiers of a house was held to constitute breach of the common duty of care.[8]

Repairs and maintenance work

A landlord has a general duty to take reasonable care when carrying out work to a property so as to avoid defects or damage to the property and danger of injury to the occupier(s).[9] The landlord should use reasonable materials to ensure that any work done is effective.[10]

Negligence can be used where the landlord's works are insufficient or where the landlord is aware of a problem, fails to act and injury or damage results. An example of this is a failure to properly treat an infestation. In the absence of injury or damage, there must be a well-founded fear that a property is dangerous.[11]

A landlord may be liable in negligence if s/he is aware of damage by a third party and has a repairing obligation (see the section Contractual rights including section 11) but fails to carry out suitable repairs to prevent damage or loss to the occupier(s). An example of this is where a landlord failed to adequately secure a broken window and as a result a burglar gained entry to the property.[12]

A local authority has been held liable for reasonably foreseeable subsidence damage to a property where it was caused by its failure to prune trees it was responsible for in the proximity.[13]

A landlord may also be liable under the Defective Premises Act 1972 if a personal injury or damage to property results where s/he is responsible for repair and maintenance work (see the section on Defective Premises Act 1972 for more on this).

Common parts

The landlord is liable for those parts of the premises over which s/he retains control. This includes common parts if there is injury as a result of dangerous defects or disrepair that the landlord negligently fails to make safe.[14]

In one case a landlord failed to take reasonable care to keep the lifts in working order and maintain the common parts in a tower block.[15] In another case a landlord took insufficient action to prevent the pipes of a communal water supply bursting, which resulted in damage to a tenant's property.[16] In another one, a local authority was found liable for the injuries sustained by a visitor on the entrance path to sheltered housing it owned; this was notwithstanding the fact that the authority employed a manager and a caretaker who had in place a system of regular inspections.[17]

A landlord will not be liable if s/he takes reasonable measures to secure a neighbouring vacant property that s/he owns, but nevertheless fails to prevent burglars gaining entry to that property and causing damage that also damages the tenant's property.[18] No duty of care was owed by a landowner to a tree surgeon who had fallen from a tree on the land while working for an independent contractor.[19]

Construction and design work

Where a property is built negligently, the builder is liable if the negligence causes personal injury to the subsequent occupier(s) of the property or damage to the property.[20] The liability applies to latent defects, ie those that cause harm with no warning. It will apply to the landlord where s/he is also the builder.[21]

A developer, architect or engineer is liable if their work is negligent and results in personal injury or damage to property. Similarly a local authority can be liable if the injury or damage has arisen from its negligent failure to check work plans for the site or to enforce building regulations.[22] In one case a local authority was found negligent for the design and building of a flat with a panel of thin glass in an internal wall that broke injuring the tenant.[23]

Surveys and valuations of properties

The duty of care owed by a property surveyor to a mortgage lender to prepare a survey report with skill and care extends to the buyer of the property who relies on the report when deciding to proceed with the purchase, and cover economic loss.[24] This applies only when the transaction involves ordinary domestic householders purchasing their homes without requesting an independent survey; not to commercial transactions, such as buy-to-let, where it is reasonable to expect buyers to obtain their own independent advice.[25]

[1] for example, see Lugay v Hammersmith and Fulham LBC [2017] EWHC 1823 (QB).

[1] s.2 Occupiers' Liability Act 1957.

[2] s.2 Occupiers' Liability Act 1957.

[3] Pollock v Cahill [2015] EWHC 2260 (QB).

[4] s.1 Occupiers' Liability Act 1984; Siddorn v Patel & Anor [2007] EWHC 1248 (QB); Buckett (a protected party by his mother & litigation friend Amanda Buckett) v Staffordshire CC [2015] QBD Case No 3SQ 90263.

[5] Ryan v London Borough of Camden (1982) 8 HLR 75.

[6] Ryan v London Borough of Camden (1982) 8 HLR 75.

[6] Siddorn v Patel & Anor [2007] EWHC 1248, QBD.

[8] Pollock v Cahill [2015] EWHC 2260 (QB).

[9] Birmingham Development Co Ltd v Tyler [2008] EWCA Civ 859.

[10] AC Billings & Son v Riden [1957] 3 All ER 1.

[11] Sharpe v Manchester Metropolitan DC (1982) 5 HLR 71.

[12] Nolan v Liverpool CC [1988] unreported.

[13] Robbins v Bexley LBC [2012] EWHC 2257 (TCC); see also Berent v (1) Family Mosaic Housing (2) Islington LBC [2012] EWCA Civ 961.

[14] Taylor v Liverpool Corporation [1939] 3 All ER 329; Cunard v Antifyre Ltd [1933] 1 KB 551.

[15] Liverpool CC v Irwin [1976] 2 All ER 39.

[16] Stockley v Knowsley MBC [1986] 279 EG 677 , CA.

[17] Butcher v Southend-on-Sea BC [2014] EWCA Civ 1556.

[18] King v Liverpool CC (1986) 18 HLR 307, CA.

[19] Yates v National Trust [2014] EWHC 222 (QB).

[20] Murphy v Brentwood DC (1990) 3 WLR 414, HL.

[21] Batty v Metropolitan Property Realisations Ltd. [1978] 2 All ER 445, CA.

[22] Murphy v Brentwood DC (1990) 22 HLR 502, HL.

[23] Rimmer v Liverpool CC (1984) 12 HLR 23.

[24] Smith v Eric S Bush (A Firm) [1990] UKHL 1.

[25] Scullion v Bank of Scotland Plc (t/a Colleys) [2011] EWCA Civ 693.

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