Court Success: Landlord not liable for serious respiratory accident alleged to have resulted from property condition

  • The claimant was admitted to intensive care following respiratory failure allegedly caused by the property being damp.
  • It was alleged that the landlord was on notice of the defect causing the damp, but they did not address it within a reasonable timescale.
  • The Judge found that our insured were not in breach of duty, and further that property condition was not materially causative of the respiratory failure in any event.

Background

The claimant was the daughter of the tenant of our Insured and she brought a claim following a severe respiratory event she suffered in 2012.

She said that the property was damp, and there was evidence of a defective damp proof course in the property at the material time.  It was alleged that the landlord knew about its presence during the tenancy, and that they failed to rectify it within a reasonable timescale.

It was alleged that the damp condition of the property exacerbated her asthma generally throughout her period of occupation, and that dampness materially contributed to the severe asthmatic episode which led to a lengthy hospitalization in 2012.

As a consequence of the material admission to hospital, the claimant attributed various other consequences including a miscarriage, PTSD and also potential future fertility problems.

The case was suitable for a preliminary trial to determine liability and causation.

Legal arguments

The claim was pleaded under the Defective Premises Act 1972, and the main argument focused on whether the landlord had taken such steps as was reasonable in all of the circumstances to see that the claimant was reasonably safe from personal injury caused by a relevant defect.

It was accepted that the tenant had made a substantial number of reports about dampness in the property during the lifetime of her tenancy, however she did not then  cooperate or engage to facilitate inspections and/or any requisite works being addressed.  Arrangements were made for inspections and for contractors to carry out works, but access could not be obtained.

The claimant submitted that it was open to the landlord to compel the tenant (her Mother) by injunction to provide access for repairs to be undertaken, and this fell within the duty to take reasonable steps to ensure her safety.

Decision

The Judge found that our Insured were not in breach of duty under Section 4 of the Defective Premises Act 1972.
In summary, he found that:
• In such situations it is absolutely necessary for the landlord and tenant to work together for defects to be remedied.
• The Insured had tried within its own policies and procedures to manage reports of damp, but were frequently frustrated by the lack of cooperation from the tenant.
• Obtaining an injunction may have assisted in addressing the defect earlier, but hindsight is a wonderful thing.  At the material time some arrangements were being made, but once dates were fixed they were not honoured by the tenant.  This was not a case of total disengagement.
• The Judge also considered what the Insured knew of the claimant’s pre-existing brittle asthma.  He found that there was scant evidence before 2012, and even then not from a proper medical profession.

Accordingly, the Judge was satisfied that the steps taken and detailed records and statements provided by the Insured to arrange inspections and repairs with the tenant were reasonable, and sufficient to discharge the duty of care.

For completeness, the Judge also dealt with causation and he heard from the respective parties experts (respiratory physicians) and found that there was insufficient evidence to demonstrate that housing conditions had exacerbated her asthma throughout her time living in the property, or at the time of her material admission to the ICU.

Commentary

This is a welcome result for landlords when considering what constitutes reasonable action in discharging the duty of care under Section 4(1) of Defective Premises Act 1972.

This case involved the daughter of the tenant who was not a contracting party to the tenancy.  From a duty perspective, she had sustained serious injuries through no apparent fault of her own.  However, the landlord is to be judged on the steps taken within the landlord and tenant relationship, and from this perspective the conduct of the tenant in the failed access attempts was pivotal.

Each case must be assessed on its own merits, but it was refreshing to see that in the face of access difficulties, the court did not consider injunctive relief a required course of action in the discharge of the duty of care as a matter of course.

The contemporaneous records and well documented chronology of repairs and access attempts, which was supported by witness evidence, was crucial in the Insured successfully discharging the duty of care.

Likewise from a causation perspective, it was the contemporaneous recordings in medical records which was the influential evidence for the Judge.   Quite importantly, he was persuaded by the Insureds expert who had undertaken a forensic analysis of the medical records which supported his opinion that other factors (not complying with medication, smoking and stress) were causative of exacerbations in her condition, but housing condition was not material.

The claimant’s expert relied upon a proposition that the claimant’s pre-tenancy respiratory health was better than post, and that damp is known to cause problems in asthmatics, but this did not stack up against the records with regards to actual “triggers” for her exacerbations.

This claim was handled at Zurich by Richard Pickles, a Claims Technician in Zurich’s Leeds Office.  Panel solicitors were BLM.

Summary prepared by Mathew Hyam, Partner, BLM