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Published online by Cambridge University Press: 16 January 2009
1 Though passed in July, the appearance of the text was delayed by the strike at H.M.S.O. until after Part I of this article had been written.
2 s. 85 (2); at the time of writing no order has been made relating to s. 72.
3 1972 S.I. No. 317, as amended.
4 subs. 4 provides: “In this section ‘damage’ includes the death of, or injury to, any person (including any impairment of a person's physical or mental condition).” But what else does the word include?
5 Only the law after Dutton v. Bognor Regis U.D.C. [1972] 1 Q.B. 373Google Scholar will be dealt with in detail in this review, as the law prior to that case is thoroughly treated elsewhere: Clerk and Lindsell on Torts, 13th ed. 1969Google Scholar, para. 867; Salmond on Torts, 15th ed. 1969Google Scholar, ch. 11, para. 101; Glanville Williams, 5 M.L.R. 194; Dworkin, 28 Conv. 276; North, 29 Conv. 207, 290.
6 Although it is convenient to talk about “the landlord's and vendor's immunity” the phrase is slightly misleading, as he is not immune except in respect of injuries sustained on the premises sold and let. See Part III.
7 [1932] A.C. 562.
8 Winterbottom v. Wright (1842) 10 M. & W. 109.
9 (1863) 15 C.B.(N.S.) 221.
10 [1906] A.C. 428.
11 Pollock wrote “It was rather a hard case but we think that a contrary decision would have made bad law”: 22 L.Q.R. 8. Later he said “No other result was possible”: 23 L.Q.R. 4–5.
12 [1932] 1 K.B. 458; Otto v. Bolton and Norris [1936] 2 K.B. 46.Google Scholar
13 Cf. Davis v. Foots [1940] 1 K.B. 116.Google Scholar
14 [1907] 2 K.B. 141.
15 [1949] 2 K.B. 159.
16 Fairman v. Perpetual Investment Building Society [1923] A.C. 74Google Scholar; Haseldine v. C. A. Daw & Sons Ltd. [1941] 2 K.B. 343.Google Scholar
17 [1933] 1 K.B. 551. Doubt was cast on this decision in Shirvell v. Hackwood Estates Co. [1938] 2 K.B. 577Google Scholar, a decision trenchantly criticised by Hamson, 2 M.L.R. 215. Nevertheless Stable J. felt able to follow Cunard v. Antifyre in Taylor v. Liverpool Cpn. [1939] 3 All E.R. 329.Google Scholar
18 [1958] A.C. 240. The headnote says that these two cases are overruled. On a narrow view of precedent this may not be strictly true, but the fact remains that the cases are now most unlikely to be followed.
19 [1963] 1 W.L.R. 665, following the Northern Ireland Court of Appeal in Gallagher v. McDowell [1961] N.I. 26.Google Scholar
20 [1972] 1 Q.B. 373.
21 Ibid., at p. 414.
22 Sharpe v. Sweeting [1963] 1 W.L.R. 665Google Scholar; Gallagher v. McDowell [1961] N.I. 26Google Scholar; supra, n. 19.
23 [1972] 1 Q.B. at pp. 392 and 401.
24 Cross, Precedent in English Law, 2nd ed. (1968), p. 77.Google Scholar
25 Pace W. V. Horton Rogers, 30 C.L.J. 211, who says “The builder was not a party to the appeal and on any view what was said about his position is the purest obiter dicta …”
26 [1972] 1 Q.B. at p. 394.
27 [1972] 1 Q.B. at p. 401.
28 Bearing in mind, of course, any possible weakness which the decision may have on other points beyond the scope of this article; see references at [1974] C.L.J. 311, n. 18.
29 “Would it not be monstrous to hold that, if the owner of a horse, knowing it to be vicious and unmanageable, should lend it to someone who is ignorant of its bad qualities, and conceal them from him, and the rider, using ordinary care and skill, is thrown from it and injured, he should not be responsible?”: Blakemore v. Bristol and Exeter Ry. Co. (1858) 8 E. & B. 1035. At first the owner was only liable for failure to warn of latent defects of which he actually knew, and his liability was to the borrower only. However, since Donoghue v. Stevenson he appears to be liable to any foreseeable plaintiff, and not only for latent defects of which he actually knows, but also for those of which he should have known. See Griffiths v. Arch Engineering Co. Ltd. [1968] 3 All E.R. 217.Google Scholar The donor of a chattel may still be in a more favourable position, though this is far from certain: Winfield and Jolowicz, 9th ed. (1971), pp. 209–210.
30 Indeed, by virtue of the Occupiers' Liability Act 1957, s. 2 (4) (a), a mere warning is not always enough.
31 The Law Commission assumed that the landlord or vendor could never be held liable in negligence for failure to warn of latent defects: L.C. No. 40, paras. 48–55. Their view of the law is supported by Sarson v. Roberts [1895] 2 Q.B. 395 and Davis v. Foots [1940] 1 K.B. 116.Google Scholar In the first case a landlord was held not liable to a tenant who caught scarlet fever from a house which the landlord knew to be infected; the case mainly turned on the absence of any contractual warranty as to the fitness of the house, but the court also said that the landlord owed no duty to warn: “No doubt this would be a very proper thing to do, but we have to find there is a legal duty to do it” [1895] 2 Q.B. at p. 398. In the second case the Court of Appeal refused to hold a landlady liable whose son had removed a gas-fire from the house, leaving an open-ended gas-pipe in the bedroom, so that the plaintiff was gassed: “It is the tenant's business, when he takes possession of the house, to discover and remedy any dangers that may exist” [1940] 1 K.B. at p. 121. However, Glanville Williams has cogently argued that these and other cases do not preclude a future court from holding a landlord or vendor liable for failure to warn of a latent defect which is known to him: 5 M.L.R. 194–206, and his arguments have been accepted in Ontario: Lock and Lock v. Stibor (1962) 34 D.L.R. (2) 704.Google Scholar Of course, Dutton's case makes the landlord or vendor liable for hidden dangers which he himself created, but doubt remains where he merely fails to warn of dangers which someone else has created.
32 E.g., White v. J. Warwick & Co. [1953] 1 W.L.R. 1285Google Scholar; Elliott v. Hall (1885) 15 Q.B.D. 315.
33 “Even a complete failure to repair, as distinct from a negligent execution of repair, may be a source of tortious liability, at least when there is an implied representation that it has been carried out and the article rendered harmless.” Fleming, The Law of Torts, 4th ed. (1971), p. 449, n. 43; cf. Chapman or Oliver v. Saddler & Co. [1929] 2 A.C. 584Google Scholar, where P was injured when some liftingtackle which D had bailed to X broke through want of repair, and D was held liable for his failure to repair it, as he had arranged with X to inspect it and keep it in order, and X was reasonably counting on his having done so. It is more doubtful whether the bailor of a chattel who carelessly omits to perform a contractual duty to repair could be held liable in the absence of such reliance; as far as the law of tort is concerned, this breach of contract would probably be regarded as a mere omission, and would probably still fall foul of Winter bottom v. Wright (1842) 10 M. & W. 109; Glanville Williams 5 M.L.R. at p. 208.
34 As far as his liability for injuries occurring on the premises is concerned, the Occupiers' Liability Act compels him to do more than to give a mere warning, if this is insufficient in the circumstances: s. 2 (4) (a). In such a case he must either do the repair or else keep the visitor out. As far as his liability to those outside the property is concerned, the occupier is also undoubtedly liable for negligent failure to repair; but he is usually sued in nuisance rather than negligence and the point about negligent omissions fails to arise.
35 Though we should remember the extension of his contractual liability by the Occupiers' Liability Act 1957, s. 4; see Part III.
36 (1843) 11 M. & W. 5.
37 Housing Act 1957, s. 6 (1) and (2); Housing Act 1961, ss. 32 and 33.
38 See Part III of this article.
39 See L.C. No. 40 passim, especially para. 48 and the explanatory note to cl. 2 of the Law Commission's Draft Bill.
40 Cl. 3 of the Law Commission's Draft Bill.
41 Hansard H.C. 830–1823, 11 February 1972; Hansard H.L. 330–1371, 16 May 1972.
42 [1972] 1 Q.B. 373.
43 Dutton v. Bognor Regis U.D.C. was decided before the Defective Premises Bill was introduced in Parliament, but after the Law Commission had published its report; so the Law Commission can hardly be blamed that the Court of Appeal beat them to it.
44 Cf. Sutton v. Temple (1843) 12 M. & W. 52.
45 “The general word which follows particular and specific words of the same nature as itself takes its meaning from them and is presumed to be restricted to the same genus as those words.” Maxwell on the Interpretation of Statutes, 12th ed., by Langan (1969), p. 297.Google Scholar
46 Cf. Sarson v. Roberts [1895] 2 Q.B. 395.
47 However, note Mocatta J.'s bold interpretation of the similar phrase in s. 2 (4) (b) of the Occupiers' Liability Act in AMF International Ltd. v. Magnet Bowling Ltd. [1968] 1 W.L.R. 1028Google Scholar, 1043.
48 Cheater v. Cater [1918] 1 K.B. 247Google Scholar; Shirvell v. Hackwood Estates Co. [1938] 2 K.B. 577.Google ScholarCf. Sutton v. Temple (1843) 12 M. & W. 52.
49 The word “premises” is derived from the Latin praemittere, to put in advance or at the head. To a lawyer it originally signified the part at the head of a deed setting out the names of the parties, the thing or things granted, and the consideration (cf. the premises of an argument); hence the first of the two legal meanings which it bears today. Well-drawn statutes define the term for their specific purposes. Where the statute fails to do so, the courts have veered between the two possible meanings in order to produce the desired result: e.g., Bracey v. Reed [1963] Ch. 88Google Scholar, gives “premises” the broad meaning in s. 23 (1) of the Landlord and Tenant Act 1954, whereas R. v. Hastings Licensing Justices exparte John Lovibond & Sons [1968] 2 All E.R. 270Google Scholar gives the word the narrow meaning in s. 20 of the Licensing Act 1964.
50 A possible argument in favour of the broad meaning in this case is that the word appears to have been borrowed, along with other phrases, from the Occupiers' Liability Act 1957. The Occupiers' Liability Act does not define “premises” explicitly, but its long title makes it clear that the word is used in the wide sense.
51 L.C. No. 40, para. 46; explanatory note to cl. 2 of the Law Commission's Draft Bill.
52 Clerk and Lindsell on Torts (13th ed.), para. 856; my italics.
53 Winfleld and Jolowicz, 9th ed. (1971), p. 206, n. 70, also object to the Law Commission's formula:“… If I carelessly build a defective house I am under no duty to you unless and until you come into its vicinity; if you do not do this until after I have sold the house then, at present, I have never owed you any duty of care and it is not true that my sale of the house has caused any existing duty of mine to you to abate…” With respect, this objection is ill-founded. In the first place, it is surely the notional duty of care to which the Act refers, and this exists whether or not you or anyone else is in the vicinity of my house at or before the time of sale. Secondly, even if it were the duty in fact to which the Act refers— i.e., whether or not damage to this plaintiff is reasonably foreseeable—then whether or not you are in the vicinity of my house at the time of sale is irrelevant; it is enough that damage is then reasonably foreseeable to someone in your position at the time when you are injured: Farrugia v. G. W. Ry. [1947] 2 All E.R. 565.Google Scholar
54 When the non-feasance rule limiting the liability of highway authorities was abolished by the Highways (Miscellaneous Provisions) Act 1961, it was done simply by saying: “The rule of law exempting the inhabitants at large and any other persons as their successors from liability for non-repair of highways is hereby abrogated.” Not only is this formula comprehensible; it is also effective.
55 [1949] 2 K.B. 159; Malone v. Laskey [1907] 2 K.B. 141Google Scholar; Trovers v. Gloucester Cpn. [1947] 1 K.B. 71.Google Scholar
56 They were severely criticised by the House of Lords in Billings v. Riden [1958]Google Scholar A.C. 240, and clearly cannot stand with Dutton v. Bognor Regis U.D.C. [1972] 1 Q.B. 373.Google Scholar
57 L.C. No. 40, para. 45.
58 [1906] A.C. 428.
59 Principally Sarson v. Roberts [1895] 2 Q.B. and Davis v. Foots [1940] 1 K.B. 116Google Scholar; see n. 31, supra.
60 (1843) 11 M. & W. 5; for the origin of this anomalous rule see Glanville Williams (1942) 5 M.L.R. 194–199.
61 By analogy with the term implied in contracts to sell unfinished houses: see Part I of this article [1974] C.L.J. at p. 312. Woodfall, Landlord and Tenant, 27th ed., by Blundell and Wellings (1968), p. 657.Google Scholar
62 Hart v. Windsor (1843) 12 M. & W. 68; Sutton v. Temple (1843) 12 M. & W. 52.
63 Gott & Farquharson v. Gandy (1853) 2 E. & B. 845.
64 Housing of the Working Classes Act 1885, s. 12; see Reynolds (1974) 37 M.L.R. 377.
65 The meaning of “fit for human habitation” is expanded in s. 4 of the Act; the required standard is not very high—see Woodfall, para. 1500—and has been lowered by judicial interpretation: Buswell v. Goodwin [1971] 1 W.L.R. 92.Google Scholar See generally Reynolds, op. cit., pp. 382–385.
66 The duty arises under regulations made under the section: S.I. 1973 No. 1473.
67 The landlord can contract out of s. 6 of the Housing Act 1957 only where he lets for less than 3 years and the tenant covenants to put the house into a habitable condition; he can contract out of s. 32 of the Housing Act 1957 only with the consent of the County Court (s. 33); and although he can avoid s. 6 of the Agricultural Holdings Act 1948 by inserting a provision to the contrary in the lease, such a term can be varied by arbitration (s. 6 (2)).
68 Hopwood v. Rugely U.D.C., The Times, 14 December 1974 (C.A.).Google Scholar
69 The doubt stems from dicta in Strood Estates v. Gregory [1936] 2 K.B. 605Google Scholar; see Reynolds, op. cit., at p. 386. R. E. Megarry thinks that despite this case the statutory obligations do apply here: Rent Acts, 10th ed. (1967), p. 205.Google Scholar
70 Thus a father can claim the cost of medical treatment for members of his family who are hurt: Allen v. Waters & Co. [1935] 1 K.B. 200Google Scholar; North, Occupiers' Liability (1971), p. 207.Google Scholar
71 “He has bound himself to do these definite acts, and it is no excuse that circumstances which he could not control have happened and have prevented his compliance”— Matthey v. Curling [1922] 2 A.C. 180Google Scholar, at p. 228 per Lord Buckmaster; cf. Eyre v. Johnson [1946] K.B. 481Google Scholar, 484. These cases involve covenants by tenants to repair, but the same principle is indisputably applicable to covenants by landlords as well.
72 Makin v. Watkinson (1870) 6 Ex. 25; in Morgan v. Liverpool Corporation [1927] 2 K.B. 131Google Scholar and in McCarrick v. Liverpool Corporation [1947] A.C. 219Google Scholar this rule was applied to the undertakings implied by what is now s. 6 of the Housing Act 1957, and in O'Brien v. Robinson [1973] A.C. 912Google Scholar it was also applied to the covenant implied by s. 32 of the Housing Act 1961. However, if the landlord has notice of the disrepair, it would not seem to matter that he was not negligent in failing to carry out repairs: Sheldon v. Bromwich Corporation (1973) 25 P.C.R. 360Google Scholar illustrates the difference between notice and negligence.
73 Charsley v. Jones (1889) 53 J.P. 280, where a landlord was held liable to the tenant of a furnished house who caught typhoid from an infected well: Manisty J. held it to be irrelevant that the landlord did not know the well to be infected.
74 [1906] A.C. 428.
75 See the Third Report of the Law Reform Committee (1954), Cmnd. 9305, para. 92.
76 It was repealed by the Defective Premises Act s. 6 (4).
77 Occupiers' Liability Act s. 4 (1) and s. 4 (4).
78 Because s. 4 (1) required not only that the landlord should be in breach of his contractual obligations to the tenant, but also that his behaviour should fall short of the duty which he would owe “if he were an occupier of the premises and [the plaintiff] were there by his invitation or permission”— i.e., the “common duty of care” set out in s. 2 (2).
79 This hardly mattered at a time when the occupier himself was not liable in negligence to a trespasser, but was less satisfactory after British Railways Board v. Herrington [1972] A.C. 877.Google Scholar
80 Thus in O'Brien v. Robinson, n. 67 ante, the tenant's wife's claim failed as well; cf. West v. R.C. Glaze (Properties') Ltd. (1970) 215 E.G. 921.Google Scholar
81 See n. 78 supra; North, Occupiers' Liability, p. 213; Wigzell v. Verigood Investments Ltd. (1968) 207 E.G. 531.Google Scholar
82 Because the landlord's duty was modelled on the “common duty of care,” which does not extend to purely economic loss.
83 F. J. Odgers, in Clerk and Lindsell on Torts, 13th ed. (1969)Google Scholar, para. 1046; contra North, op. cit., p. 209, and Street, Tort, 5th ed., p. 196. With due respect to North and Street, their view ignores the essential difference between an obligation to do something, and a promise that something is so.
84 Winfield and Jolowicz on Tort, 9th ed., pp. 357–365.
85 According to Wringe v. Cohen [1940] 1 K.B. 229Google Scholar, not merely to those who are injured whilst using the highway, but adjoining occupiers as well: sed quaere. See Hepple and Matthews, Tort—Cases and Materials (1974), p. 391.Google Scholar
86 Harris v. James (1876) 45 L.J.Q.B. 545.
87 Roswell v. Prior (1701) 12 Mod. 635.
88 Brew Bros. Ltd. v. Snax (Ross) Ltd. [1970] 1 Q.B. 612, at p. 636Google Scholarper Sachs L.J. and at p. 644 per Phillimore L.J.
89 Ibid.— doubting Pretty v. Bickmore (1873) L.R. 8 C.P. 401.
90 Payne v. Rogers (1794) 2 H.B1. 350.
91 Wilchick v. Marks and Silverstone [1934] 2 K.B. 56Google Scholar; Heap v. Ind, Coope & Co. [1940] 2 K.B. 476.Google Scholar
92 [1951] 1 K.B. 517.
93 [1940] 1 K.B. 229.
94 Ibid., at p. 233.
95 Ibid.
96 Fleming, Torts, 4th ed. (1971), p. 355, who says it conflicts with the House of Lords decision in Sedleigh Denfield v. O'Callaghan [1940] A.C. 880Google Scholar; cf. Salmond on Torts, 16th ed. (1973), p. 68.Google Scholar However, see Winfield and Jolowicz, 9th ed., pp. 351–352.
97 [1932] A.C. 562; see Part II of this article, at n. 8.
98 As in Rose v. Miles (1815) 4 M. & S. 101.
99 Cheetham v. Hampson (1791) 4 T.R. 318; Smith v. Scott [1972] 3 W.L.R. 783.Google Scholar
1 [1946] 1 All E.R. 489, at p. 496. Since this case was decided, the courts have injected a considerable dose of fault liability into the tort of nuisance, principally in The Wagon Mound (No. 2) [1967] A.C. 617.Google Scholar See generally R. W. M. Dias, “Trouble on Oiled Waters—Problems of Wagon Mound (No. 2),” [1967] C.L.J. 62–82.
2 Malone v. Laskey [1907] 2 K.B. 141Google Scholar; or the reversioner— Jones v. Llanrwst U.D.C. [1911] 1 Ch. 393.Google Scholar
3 Not merely to the land itself, but also to his chattels on it Halsey v. Esso Petroleum Ltd. [1961] 1 W.L.R. 683.Google Scholar
4 E.g., Andreae v. Selfridge & Co. Ltd. [1938]Google Scholar Ch. 1 (loss of custom at a hotel).
5 In Malone v. Laskey, supra, the Court of Appeal seemed to assume that had the plaintiff possessed an interest in the land she could have claimed damages for personal injuries. But in Cunard v. Antifyre Ltd. [1933] 1 K.B. 551Google Scholar, where a plaintiff with no interest in the land won an action in negligence, the Divisional Court said obiter that damages for personal injuries were irrecoverable in private nuisance. This view appears to be historically correct: Newark, 65 L.Q.R. 480.
6 As in Cunard v. Antifyre, supra; cf. Taylor v. Liverpool Corporation [1939] 3 All E.R. 329.Google Scholar
7 The court almost did this in Cunard v. Antifyre, supra. A landlord, L, let a lower flat to the husband of P, the plaintiff. He also let the upper flat, which lay immediately under the roof, to X. L failed to maintain the gutter at the edge of the roof, which fell through the roof of P's kitchen, which projected beyond the limits of X's flat above. L was held liable to P, its being found that L retained possession of the roof. It would have been a less strained interpretation of the facts if the court had held that L had parted with possession of the roof, but as landlord owed a tortious duty to the neighbours to repair it.
8 Since it makes the landlord liable for negligent failure to exercise a power to repair, it gives the tenant a claim in some cases in which he cannot sue for breach of a covenant to repair. See post.
9 See p. 70, ante.
10 See North, 36 M.L.R. at p. 636.
11 [1972] A.C. 877. However, perhaps this point is not of great practical significance. Although the House of Lords in Herrington's case stressed that the duty which an occupier owed to a trespasser is lower than the standard set by the common duty of care, there is probably now little if any difference between the two duties. See Southern Portland Cement v. Cooper [1974] A.C. 623Google Scholar; [1974] C.L.J. 202.
12 North, 36 M.L.R. at p. 636.
13 Occupiers' Liability Act 1957, s. 1 (4); Greenhalgh v. British Railways Board [1969] 2 Q.B. 286.Google Scholar
14 Ashdown v. Samuel Williams & Sons Ltd. [1957] 1 Q.B. 409Google Scholar; White v. Blackmore [1972] 2 Q.B. 651.Google Scholar
15 “Any term of an agreement which purports to exclude or restrict, or has the effect of excluding or restricting, the operation of any of the provisions of this Act, or any liability arising by virtue of any such provision, shall be void.” Presumably such a notice gives rise to an “agreement,” even if there is no contract when a visitor enters after reading it—see Clerk and Lindsell on Torts, 13th ed., paras. 1030–1034.
16 This result was carefully avoided when s. 4 of the Occupiers' Liability Act was drafted: s. 4 (5).
17 A.M.F. International Ltd. v. Magnet Bowling Ltd. [1968] 1 W.L.R. 1028.Google Scholar
18 It is questionable whether this is the most sensible way of tackling the problem of dangerous leasehold property. Is it sensible that the tenant must continue to live in the dangerous house until it injures him before he has a remedy? Would it not have been better if the Law Commission had felt able to recommend the imposition of some more general contractual duty to repair? Parliament has recognised that prevention is better than cure by making covenants to repair specifically enforceable: Housing Act 1974, s. 125.
19 Though a bold court might hold such a provision void under s. 6 (3); see n. 15, supra.
20 See Hopwood v. Rugely U.D.C., n. 68, ante.
21 See n. 83, ante.
22 See Law Com. 40th Report, paras. 58 and 59.
23 See n. 69, ante.
24 Ante at n. 19–21. A further possible gap in the section is that like s. 3 it only applies where “premises” are let—the term “premises” being undefined, and being capable of limiting the scope of the section to the case where land and buildings are let. See Part II of this article, s. B (ii) (b). Of course, this possible limitation would matter less in s. 4 than in s. 3.
25 The Law Commission's Draft Bill had a clause dealing specifically with nonfeasance by failure to warn of known dangers, but this was dropped by the sponsors of the Bill which was later presented to Parliament. See Part II of this article.
26 The Law Commission may have felt that the sort of provision suggested here would make the landlord potentially liable who had neither a power nor a duty to repair, which does at first sight look rather unfair. But a general duty would only have bound a landlord to do what a reasonable landlord in his position would do, and in most such cases the landlord would behave reasonably by doing nothing at all. Such a provision would not, for instance, have made liable the landlord who lets his property on a 999-year lease at a ground rent of £1 per annum, undertaking no duty and reserving no power to repair; but it would have made liable the landlord of a weekly residential tenant who has a power to enter and repair the back yard, and who unreasonably fails to do so—and it would have done so without needing a hideous provision like s. 4 (4) in order to do it.
27 See Part I of this article, [1974] C.L.J. 307, 323.
28 Ibid.
29 Proposals for English and Scottish Law Commissions, 1965 Cmnd. 2573.