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Painted steps made slippier, but NO liability

GILLIAN DRYSDALE v JOANNE HEDGES (2012)

QBD(John Leighton Williams QC) 27 JULY 2012

LANDLORD AND TENANT - TORTS - PERSONAL INJURY - REAL PROPERTY

BREACH OF COVENANT : BREACH OF DUTY OF CARE : DEFECTIVE PREMISES : DUTY OF CARE : LANDLORDS' DUTIES : OCCUPIERS' LIABILITY : REPAIR COVENANTS : STAIRS : TRIPPING AND SLIPPING : TENANT SLIPPING ON PAINTED OUTDOOR STEPS : WHETHER COMMON LAW DUTY OF CARE BREACHED : OCCUPIERS' LIABILITY ACT 1957 s.2 : DEFECTIVE PREMISES ACT 1972 s.4

A landlord owed no duty of care under the Defective Premises Act 1972 s.4 or the Occupiers' Liability Act 1957 s.2 to her tenant who had slipped on painted steps on her property and sustained injuries. The tenant was owed a common law duty of care, but that duty of care had not been breached as, although the presence of paint on the steps significantly increased their slipperiness, it had not been unreasonable for the landlord to paint them using outdoor paint.

The claimant tenant (D) claimed damages for personal injury arising from a fall she suffered when ascending the steps of the property she rented from the defendant landlord (H). The front door to H's property was accessed via a concrete path leading to three steps. H had the steps painted with paint suitable for outdoor use to improve their appearance. To the left of the path was an area that had steps down to basement level. That area was separated from the concrete path by a very low wall that continued alongside the three steps to the front of the house. The wall had been like that when H bought the property. It offered limited protection against a fall from the steps down to the basement. D and her fiance were carrying a box up the steps to the property in the rain when D slipped on the middle step and fell over the wall down to basement level. She sustained serious back injuries. D asserted that the steps were unduly slippery because they had been painted and because of the rain. Expert evidence confirmed that painting the steps increased the risk of slipping. The issues for consideration were whether H was liable for (1) breach of the Occupiers' Liability Act 1957 s.2; (2) breach of covenant and/or breach of the Defective Premises Act 1972 s.4; (3) breach of duty at common law.

HELD: (1) Section 2 of the 1957 Act applied generally whereas s.4 defined a landlord's duty. It cannot have been Parliament's intention for both s.2 and s.4 to define a landlord's duty. Section 4 of the 1957 Act was replaced by the 1972 Act and therefore s.4 of the 1972 Act defined the extent of a landlord's duty,Murphy v Brentwood DC [1991] 1 A.C. 398applied (see paras 74-77 of judgment). (2) The paint was additional to the stone; it did not replace it. The stone did not require repair, neither did the paint: what was required was removal of the paint. On the facts, the presence of the paint on the steps did not cause the steps not to be in good repair. Therefore, the presence of the paint did not give rise to a breach of s.4 of the 1972 Act or the tenancy agreement requiring H to maintain the structure and exterior in good repair (paras 87-88). (3) H had no duty to guard against the unguarded drop to basement level, Cavalier v Pope [1906] AC 428 applied. In relation to the steps, there was no reason why H should not have a duty to take reasonable care to ensure that the application of paint did not create an unnecessary risk of injury. Where personal injuries resulted from a failure to repair then the duty of care arose under the 1972 Act, but where the Act did not apply, as in the instant case, a landlord owed a duty to take reasonable care not to create a risk of unnecessary injury. The presence of the rain increased the likelihood of slipping on the steps and the presence of paint on the steps significantly increased the risk of slipping, but that of itself did not establish liability. The paint was suitable for use outside and contained no warning against its use on steps or of it becoming slippery when wet. The references to "semi-gloss" and producing a sheen might have alerted the knowledgeable to the fact that the paint was not suitable for use on steps, but not the man on the street. It was not unreasonable to have applied the paint to the steps in light of the expert evidence, and there was no breach of duty (paras 101-105). Claim dismissed

END