In the case of Rogerson v Bolsover District Council, a lady stepped backwards while mowing the lawn and fell through a large manhole cover in the grass. The manhole was actually owned by Severn Trent water and was part of the main sewer system, even though it was on the landlord’s land. The lady won her case in the county court, lost on the appeal and appealed to the Court of Appeal. The tenant won in the Court of Appeal and the landlord was liable to pay damages for the accident. There are two significant things to come out of the case.
Firstly the property had been inspected in 2013 just before the tenant moved in and again in 2014 as part of a standard 10 year asset management inspection. However, there were no meaningful records of either visit and members of staff involved were not longer working for the local authority by the time of court hearing limiting access to first hand evidence. Therefore, the first lesson is that visits to the property should leave an audit trail that remains even after staff changes or the business is sold.
The second lesson is the consideration of what should be reviewed when visiting the property and the “technical” understanding of the person who did the inspection. Section 11 repairs generally need the tenant to notify the landlord of the need for repair before a liability arises. This claim was under the Defective Premises Act. Two significant differences between this legislation and section 11 are that Defective Premises Act applies to the whole property (not just the house) so included the drain in the garden, and there is no need to be notified of the problem. This lack of the need to be notified is a great example of why periodic visits to the property are an important part of the management. This is not just about seeing the carpet is vacuumed or the flower beds weeds, there are some serious technical building issues to consider and someone with appropriate knowledge should undertake them.
Whilst the fact of this case were a little unusual, in having a main sewage tank in the garden, the underlying principle about liability under Defective Premises Act is very real. Other cases where the same legislation has been used include gas safety (before the Gas Safety Regs, but therefore could be used for oil fired or solid fuel heating) and a garden wall falling over and causing injury. Thorough checks and details records are the only defence. At the end of the day some things may be impossible to detect and this is probably the most important reason landlord’s should always ensure they are adequately insured.