Defective Premises Act

We are asked to advise Sloth as to liability, if any, in Tort. Let us begin by establishing 3 essential elements required for Sloth to be liable: 1. Was there a duty of care owed; 2. Has that duty been breached; and 3. What was the resulting damage as a result of the breach Sloth both owns and occupies 'Great Shambles'. It seems likely that he will be treated as an occupier under the Occupiers' Liability Act (OLA) 1957 on the basis that he is control of the premises1. Sloth v Graft The liability of an occupier in respect of loss or injury suffered by those who come lawfully upon his premises is primarily governed by the OLA2.

The statutory duty is to take reasonable care; there is little or no difference between an action under the Act and one for breach of a common law duty of care. Although the Donoghue v Stephenson case was settled in contract, it established negligence as a separate tort. The principle has set out the general duty of care. S. 2(1) of the OLA provides " An occupier owes the same duty, the 'common duty of care,' to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.

" In other words, 'a common duty' of care has been established, but however this can be excluded by an agreement. It is clear after interpreting the statute to the facts; Sloth can exclude liability to Graft. As established above, the duty owed to a contractual entrant is governed by the terms of the contract. There is a possible restriction on the freedom upon which, an occupier can exclude his duty. The much-debated standard of care to a non-contractual entrant, at common law, is the minimum standard, which cannot be excluded3; this is based on a standard of common humanity.

If a duty owed to a standard trespasser represents a minimum standard below which the occupier cannot go, then that duty must also be owed to all entrants, for to suggest otherwise would be to accord to the trespasser a protection denied to the lawful visitor. However, there is no authority for or against this position. Despite the position in common law, the power of the occupier to exclude or restrict liability for negligence has been severely reduced by the Unfair Contract Terms Act 1977 (UCTA). S. 24, provides that a person cannot exclude liability by agreement or notice.

However, UCTA only applicable in a business capacity and does not apply to leases. The Act cannot therefore be used in establishing liability. The facts tell us that the room let to Graft was specially converted for him by Sloth. We will now look at the Defective Premises Act 1972 (DPA)5, to establish whether Sloth will owe a duty of care to Graft outside the exclusion of the terms of contract. S. 16 has created a strict statutory duty to ensure that any work taken on is done on a workman like or professional manner. Furthermore, it states that proper materials shall be used to ensure it is fit for habitation.

This brings the question of whether the materials used by Sloth are considered as 'proper'. Although the facts tell us that Sloth was unaware that the materials used were defective, s. 17, states that work should be done on a professional capacity. It can therefore be inferred that professionals would have identified the defect of the material and therefore Sloth should have known of such a defect. Furthermore, section 6 (3)8, makes void any term of an agreement, which purports to exclude or restrict the operation of the duty.

Sloth is therefore advised he will be liable under the provisions of DPA9, as he cannot rely on the exclusion of liability clause. As established above a duty is owed to Graft, that duty was breached by the use of the defective materials, which as a result has caused injury to Graft. Sloth v Potluck Let us begin by looking at the Tort of nuisance. A Public Nuisance is an act or omission, which materially affects the reasonable comfort and convenience of life of a class of her Majesty's subjects. A key principle of public nuisance is that, a plaintiff must suffer "particular damage" over and above the damage sustained by the public generally.

It is therefore likely that the injury sustained by Potluck is of the above nature, as the general public would not be expected to be injured in such a way. Furthermore, the facts tell us that debris from the 'Great Shambles' roof injured Potluck in the highway. We can therefore infer from the facts that the property is adjoining the highway. "An occupier whose premises adjoins the highway is responsible for the state of repair of the premises, because the public should not be prejudiced by the occupiers neglect of his property"10.

It was held in Wringe v Cohen, that a premises adjoining a highway becomes dangerous from want of repair, a person under the duty to repair will be liable for damage caused by its collapse and would constitute to a public nuisance. S. 4 (1)11 creates a duty to 'all those who might reasonably be affected by the state of the premises', this has included a passer-by12. It is therefore stated that Sloth will be liable by virtue of a statutory duty of care as well as under the Donoghue principle in negligence13, this was breached by his failure act to such 'obvious danger', which, as a result caused injury to Potluck.

Sloth v Razor It is possible for Sloth to argue that he may be exonerated from liability for willingly accepted by Razor14. The agreement of the terms stated by Sloth may act with some degree of relevance. However, as discussed above in Graft's case, although the facts are different, Sloth cannot rely upon the exclusion of liability clause set out in the contract as result of section 6 (3)15. We will now look Land Lords Liability16, s. 4 (1) states: "a landlord under an obligation to the tenant for the maintenance or repair of the premises. " In addition, Sloth may be liable under the tort of nuisance.

"The general rule is that a landlord who has parted with possession & control of the demised premises is not liable for nuisances arising on them"17. However as we have already established Sloth would have been seen to have sufficient control of the premises. There are situations, where he may be liable & we will discuss those that are relevant in our case. "Where the nuisance existed at the date of the letting the landlord will be liable if he knew or ought to have known about it"18. The facts tell us that Sloth 'has never had anything done about the roof of 'Great Shamble', despite it having been obviously dangerous for years'.

Sloth is therefore advised of his liability, as he cannot 'shuffle off' his responsibility19. Furthermore, "In the case of a dwelling-house let for a term less than 7 years, there is implied an unexcludable covenant that the landlord will keep repairs the structure & exterior of the dwelling"20. Sloth will therefore owe a duty to repair and that duty was breached in failure to do so resulting in injury to Razor. The facts do not state that the lease is for more than 7 years or visa versa, but we can consider the fact that Razor is a law student, creating a strong suggestion that the lease will be less than 7 years of duration.

It is therefore stated that Sloth will owe Razor a duty of care under section 4(1) of the act as well as an obligation under private nuisance and that duty was breached when he failed to repair the defect, which, has resulted in injuring Razor. Sloth v Verve & Razor Sloth could rely on s. 4 (b)21. This section states that, where damaged is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier (Sloth), the occupier is not to be treated, without mere, as answerable to danger.

This applies if in all the circumstances, the occupier had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) and he reasonably ought in order to satisfy himself that the contractor was competent and that work had been properly done. The re-wiring of 'Great Shambles' seems to be covered by s. 2(4)(b)22, as it is reasonable to entrust the work to independent contractors.