denotes premium content | Jan 6 2009 Feature
posted 1 Sep 1999 in Volume 4 Issue 6
'As Safe as Houses'
Part 1
In May 1999 the Department of Trade
and Industry, together with the Health Education Authority, launched a safety
campaign to reduce the number of deaths and injuries due to falls in the home.
The campaign called, 'Avoiding Slips, Trips and Broken Hips', is aimed primarily
at older people. The statistics are stark:
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Every five hours an older person is killed by an accidental fall in the home - 1500 people a year. |
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Over 300,000 pensioners are so seriously injured by a fall in their home that they require hospital treatment. |
The consequences of falls are clearly serious for older people. Even in relation to non-fatal falls, it is not just the risk of hospitalisation but the likelihood that the spell in hospital may turn out to be the prelude to long-term care in a residential or nursing home.
With this background it seems timely to review the circumstances in which falls in the home may give rise to legal liability, and in line with the government's emphasis on accident reduction, to focus particularly on the extent to which legal measures can be employed as part of a preventative strategy.
The risk factors
Falls at home may not simply be the result of a human error by the victim. A major contributory cause of accidental falls is the condition of the home. It is estimated that between a third and a half of falls of older people can be attributed to their home being in poor condition, for example unsafe stairways, poor lighting and uneven floor surfaces. Link this with the fact that one fifth of all elderly households are officially designated as living in 'poor' conditions, ('English House Condition Survey 1996', DETR, 1998), and the particular vulnerability of older people is immediately apparent.
There are other factors too which make the problem of falls particularly significant for the older population. First, the physiological consequences of ageing such as poor eyesight, restricted mobility, osteoporosis or cognitive impairment may increase the likelihood of falls. The effect of falls may be more severe for older people as their fragility renders them more susceptible to fractures which in turn are more likely to involve medical complications and even death. Finally, the fact that older people tend to spend more time indoors of itself increases the likelihood of risk arising from hazardous housing conditions.
The legal framework: introduction
There are a variety of inter-locking rights, duties and procedures in relation to unhealthy and hazardous housing. Possible legal claims can be distinguished according to the tenure of the actual or potential victim, whether the hazard results from deterioration or disrepair, or is attributable to defective design or construction, as well as whether the building itself is new or older. Overarching these factual distinctions is the division between private law remedies and public law remedies, the latter involving the local housing authority or Environmental Health Department. This article will concentrate on the former, while the possibility of public law intervention will be considered in detail in a subsequent piece.
Private law remedies
Private law remedies are essentially restricted to actions on any contract or claims in tort. They are therefore dependent on the actual or potential victim establishing a legal relationship with a defendant, which may be one of landlord-tenant, owner-contractor, or some other possibility depending on the particular circumstances. There is a clear limitation on the utility of private law actions as part of any accident-prevention strategy. As far as the individual plaintiff is concerned, the emphasis is on compensation after the event, when the harm has already occurred. It is only in very limited circumstances that potential victims can seek to enforce their rights to safe and healthy housing.
(a) Owner-occupiers
As far as owner-occupiers are concerned, the legal assumption is that they are primarily responsible for all aspects of the maintenance, repair and improvement of their homes. This means therefore that where any hazard arises through deterioration or disrepair, they cannot shift the burden onto a third party. However where the risk of a fall is increased because of bad design or construction, the owner-occupier may have possible contractual or tortious claims. As far as the latter are concerned, builders, architects, and engineers involved in the construction of a house owe duties of care at common law to future occupiers to take reasonable care in the execution of their functions. In determining whether the duty was breached in the particular case, the extent to which the construction features at the site of the fall comply with the requirements set out in the building regulations applicable at the time of construction1, will be relevant. However in the light of D & F Estates Ltd. v Church Commissioners for England2, liability in negligence will only arise when an accident has happened and there is actual personal injury. It is not possible for the owner to recover anticipatory expenditure to remedy a dangerous structural defect so as to avert physical injury occurring, as this is classified as economic loss and irrecoverable. Post Murphy v Brentwood District Council3 neither can a local authority be liable in negligence for damage to a building which produces a present or imminent danger to the health or safety of the occupiers as a result of failing to ensure that a builder failed to comply with building regulations. The House of Lords may have re-asserted the orthodox doctrinal approach to the distinction between contract and tort, but in doing so they rejected a preventive approach to dangerous building defects. Further, although counsel for the local authority in Murphy conceded that where the plaintiff sustained personal injury, the local authority could be liable if this was caused by a latent defect attributable to a failure to secure compliance with the building regulations, their Lordships specifically reserved this point. It has further been argued that even if such a duty is held to exist, 'it is possible that it would not be owed to an owner-occupier who was himself in breach of building regulations, since a local authority can reasonably expect an owner who is embarking on a building project to obtain independent advice and assistance to enable him to comply with the building regulations and to carry out the job properly.'4
For homes constructed or converted after 1 January 1974, the owner-occupier may have a further cause of action under section 1 of the Defective Premises Act 1972. This imposes a duty of care on anyone involved in the work if they fail to build in a professional or workmanlike manner with proper materials, or fail to ensure that the dwelling is fit for human habitation, a phrase which may be capable of covering design defects. While liability does not depend on proof of negligence, a significant restriction is that the limitation period under the Act is 6 years from completion of the work.
(b) Tenants
Where the actual or potential victim of a fall is a tenant, the starting point for analysis is the general rule that landlords are not liable in contract or tort for the state and condition of the property let. This general rule is, of course, subject to a number of exceptions.
Liability in negligence
The first exception is where the landlord has been responsible for the design and construction of the house, typically where the landlord is a local authority or housing association. The duty is owed to all persons who may reasonably be expected to be affected by the design or construction of the premises and is a duty to take care that such persons do not suffer injury from design or construction defects5. In Targett v Torfaen Borough Council,6 the plaintiff sustained personal injuries when he fell down a flight of exterior stairs which had no handrail and were unlit. It was held that the fact that the plaintiff knew of the dangerously defective condition of the property did not negate the landlord's duty of care, as having regard to what was reasonable, the tenant was not free to remove or avoid the danger.
A further exception to the general rule of no liability may appear to exist under section 4 of the Defective Premises Act 1972. Section 4(1) DPA 1972 provides that where the landlord is under an obligation to maintain or repair the premises, the landlord owes 'to all such persons who might reasonably be expected to be affected by defects in the state of the premises a duty to take such care as in reasonable in all the circumstances to see that they are reasonably safe from personal injury or from damage to their property.' This imposes tortious liability on the landlord towards tenants, and their families. The landlord is treated as being under an obligation to repair or maintain the premises if he has an express or implied right under the tenancy to carry out any description of maintenance or repair (s.4[4]). A significant advantage of section 4 is that the landlord's duty arises not only where he knows of the defect, but also where he ought to have known of it (s.4[2]). This means that it is available in cases where the tenant has not notified the landlord of the defect which subsequently causes the injury.
Although section 4 is clearly concerned with hazards to personal safety, it has two significant limitations as a preventive remedy. Firstly, where no accident has yet occurred but there is a risk, in order for s.4 to be triggered there would need to be some actual damage to the structure or fabric of the property. Secondly, as it springs from the obligation to repair or maintain the property, it will not apply to cases where the hazard arises from a design or construction defect. This is illustrated by McDonagh v Kent Area Health Authority7. Mrs. McDonagh was injured when she slipped and fell on the very steep stairs of the Victorian terrace house let to her husband by the health authority. The pitch and depth of tread of the staircase did not conform with modern building regulations but the court held that the authority were not liable as the tenant and his family knowing of the steepness of the staircase and its construction and becoming familiar with it, could reasonably be expected to use sufficient care to accommodate such additional risk as it posed.
Contractual liability
The principal exceptions to the rule of no liability take the form of implied obligations. Thus, in relation to furnished flats only, the common law implied a contractual term that they are fit for human habitation at the start of the lease. Although most commonly invoked where there was something about the property that was hazardous to health, there is authority that it also covered a lack of safety8.
The first statutory implied condition of fitness for human habitation dates from 18859 and a broad judicial definition of unfitness was developed which encompassed both unsafe and unhealthy housing10. Statutory criteria were introduced in 1925 and the modern list is now found in s.10 Landlord and Tenant Act 1985, with the statutory condition of fitness re-enacted in s.8. Although s.8 appears to offer another route to compensation for actual victims of falls in the home, in practical terms, it is ineffective and out of date, as its operation is restricted to lettings at very low rents indeed (£80 per annum in London, and £53 per annum elsewhere) 11.
The Law Commission have suggested that one possible reason for Parliament's failure to increase the rental limits under s.8 could have been the introduction of an implied statutory repairing obligation in 196112 (now s.11 Landlord and Tenant Act 1985), as it may have been thought that all cases of unfitness would be subsumed within this provision13. The obligation under s. 11 that the landlord will keep the structure and exterior of the premises in repair, applies to leases of dwelling houses granted for less than seven years. The restriction to 'structure and exterior' means that s.11 is narrower than the implied covenant for fitness in s.8 LTA 1985, which applies to the 'house' including any part of it, and to any 'yard' or 'garden'.14 Additional limitations on the scope of s.11 include:
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no liability can be imposed on the landlord for breach of s.11 until s/he has notice of the defects complained of; |
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as the obligation is one of repair, it only arises where there is some damage or deterioration to the structure or exterior. It does not encompass the correction of inherent defects where the defects do not cause disrepair. |
Preventive remedies are thus available under s.11 but for a limited category of cases. Legal action may be possible where the breach occurs through inadequate maintenance of floors and staircases resulting in uneven or slippery floor surfaces, or insecure or missing handrails, leading to an increased risk of accidents occurring.
Evaluation of private law remedies
The starting point of this discussion was the association between the poor housing conditions experienced by older people and their increased risk of accidental falls. Despite the extension of private law remedies by Parliament for victims of bad housing over the last century, in terms of preventing dangerous housing, private law has not been particularly successful or effective. This 'failure' may not seem surprising once it is recognised that private law is essentially about providing compensation and redress for individual victims after the event. However, it is also clear that opportunities have been missed which, if seized, could have promoted accident prevention. Responsibility for this lies not only with the courts, and in particular the House of Lords in D & F Estates, and Murphy, but with Parliament in allowing the implied obligation of fitness to wither on the vine. Resurrection of this obligation was recommended by the Law Commission in 199615, who argued that private and public law should operate in parallel to improve levels of fitness in leasehold property. The current government with its preference for 'joined-up thinking' should not ignore the role of private law and as part of any co-ordinated response to reducing accidents in the home, implementation of the Law Commission's proposal should be re-considered.
Norma Martin Clemen
Faculty of Law, University of Leeds
