 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] |
|
United Kingdom House of Lords Decisions |
||
|
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> O'Brien v Robinson [1973] UKHL 1 (19 February 1973) URL: http://www.bailii.org/uk/cases/UKHL/1973/1.html Cite as: [1973] UKHL 1, [1973] AC 912 |
||
[New search] [Buy ICLR report: [1973] AC 912] [Help]
Die Lunae, 19° Februarii 1973
Parliamentary
Archives,
HL/PO/JU/4/3/1245
HOUSE-OF LORDS
O'BRIEN (A.P.) AND ANOTHER (A.P.)
v.
ROBINSON
Lord Reid
Lord
Morris of Borth-y-Gest
Lord
Diplock
Lord
Simon of Glaisdale
Lord
Cross of Chelsea
Lord Reid
MY LORDS,
For the reasons given by my noble and learned Mend, Lord
Diplock, I
would dismiss this appeal.
Lord Morris of Borth-y-Gest -
MY LORDS,
This appeal raises issues of no little importance. The
Appellants were
injured when the ceiling of their bedroom fell
upon them. In no way were
they to blame. They were occupying
premises belonging to the Respondent.
Payment was being made to
him for the use of them by the Appellants.
Is he responsible for
injuries, loss and damage which they sustained?
The first Appellant was the 'tenant of a dwelling-house
(being the basement
and ground floor of a house in East Croydon)
to which section 32 of the
Housing Act, 1961, applied. In his
tenancy there was, by virtue of the
implication resulting from
that section a covenant by the Respondent which
required him
(inter alia) to keep in repair the structure and exterior of
the
dwelling-house. The question arises as to what is the meaning
of the obliga-
tion of a landlord to his tenant " to keep in
repair " the structure of demised
premises. In the present
case the ceiling which fell on the 26th November,
1968, must have
been out of repair at the time immediately before it fell.
If the
obligation of the Respondent was an absolute one in the sense
that
ignorance of any condition of disrepair was immaterial then
there would
clearly be liability in him. But the meaning of an
obligation on the part
of a landlord " to keep in repair "
or of comparable obligations has been the
subject of much judicial
consideration.
There is a statutory restriction on contracting out of
the statutorily implied
covenant. By section 33, subsection (7) of
the Act of 1961 any covenant
or agreement is void so far as it
purports to exclude or to limit the obligations
of a lessor under
section 31. There is, however, power in the County Court,
if the
parties consent, to authorise provisions excluding or modifying
in
relation to the lease the provisions of section 32 with respect
to the repairing
obligations if the Court, in the terms of section
33, subsection (6), considers
it reasonable to do so. In the
present case no such authorisation was sought
and there was no
purported exclusion of the Respondent's obligations as
lessor. So
the question remains as to what is the meaning of a covenant
to
keep in repair.
The restriction on contracting out which is contained in
section 33, sub-
section (7) of the 1961 Act is in line with a
provision contained in the previous
Housing Act. By section 6(2)
of the Housing Act, 1957, the covenant there
provided for is to be
implied " notwithstanding any stipulation to the
"
contrary ". There was a comparable provision in section 2 of the
Housing
Act, 1936: so also in section 1 of the Housing Act, 1925.
The obligation on a lessor under section 32 of the Act
of 1961 " to keep
" in repair " may be compared
with the obligations on a lessor under earlier
Acts. Thus, under
the Act of 1957 (see section 6) the implications include
a
condition that the house is, at the commencement of the tenancy, and
an
undertaking that the house will be kept by the landlord during
the tenancy,
fit for human habitation. Under the Act of 1936 there
was a comparable
provision (see section 2) as there was in the
Housing Act, 1925, (see section 1).
2
See also section 15 of the Housing, Town Planning et
cetera Act. 1909. In
the 1936 Act the implied condition was
that at the commencement of the
tenancy the house was, and the
implied undertaking that during the tenancy
it would be kept, in
all respects reasonably fit for human habitation.
So under all these Acts since 1909 the obligation of a
lessor where it has
by Statute been implied has been to keep the
premises in a certain condition
and for the purpose of considering
the issue now arising it is immaterial
whether the obligation
imposed is to keep in repair or to keep premises in all
respects
reasonably fit for human habitation. Questions as to the nature of
a
lessor's obligations and liabilities have of course arisen where
apart from
any Statute there has been a covenant by a lessor to
keep in repair. See, e.g..
Makin v. Watkinson (1870-71)
L.R. 6 Ex. 25.
On a consideration of the meaning of a lessor's
obligation to keep premises
in repair there has been scope for
much reasonable competitive argument.
The various authorities
(which I do not propose fully to cite) show that
every point of
view has been explored. The following are some of the
contentions
that have been pressed. On the one hand, it has been said
that it
would be wholly unreasonable to make a lessor liable for failing
to
remedy a defect of which he was unaware. So the liability to
repair is one
that arises only upon notice that there is a need to
repair. Where by contract
between lessor and lessee there has been
a covenant to keep in repair the
parties must have intended that
the obligation of the lessor would only arise
if the lessor had
notice of want of repair and a condition of stipulation to
that
effect should be imported into the contract. The lessee in
occupation
would be in the best position to know of any state of
disrepair. On the other
hand, it has been said that if a lessor
chooses or is required to covenant to
keep premises in repair then
there is an absolute obligation upon him.
Alternatively, even if
ordinarily there is no obligation on the part of a lessor
until he
is told by his lessee of a need for repair a lessee can only give
notice
of any condition of which he is aware and accordingly
cannot give notice
of some unknown or unseen condition or latent
defect: if, in these circum-
stances, the lessee suffers injury by
reason of the premises not being in repair
liability should rest
upon the lessor.
At times an argument was pressed to the effect that a
lessor ought not to
be held liable upon a covenant because he
would have no right of entry
to inspect the condition of the
premises and so would be dependent upon
being told if something
needed to be done. But by the Housing, Town
Planning Act, 1909
(see section 15(2)), a right upon notice was given in cases
to
which the Act applied to enter for the purpose of viewing the state
and
condition of the premises. Similar powers were given in later
Acts and
by section 32(4) of the 1961 Act a right of entry (in the
terms provided) is
given in the case of any lease in which the
lessor's repairing covenant is
implied. But even if there is a
right of entry for the purpose of viewing
the condition of the
premises it has been argued that frequent visits by a
lessor would
not be expected or desired and in order to acquire knowledge
of
any want of repair a lessor would in fact be dependent largely
upon
receiving information from his lessee.
It may here be stated that in the present case the
learned Judge held that
the second Appellant was not a tenant. As
a consequence of this any
liability of the Respondent to her would
have to be established in reliance
upon the provisions of section
4 of the Occupiers Liability Act, 1957.
In the case of Morgan v. Liverpool Corporation [1927]
2 K.B. 131 one
basis of claim was that there had been a failure to
perform the statutory
undertaking that the house would be "kept
in all respects reasonably fit
" for human habitation ".
As I have shown, there was at that date a statutory
right in a
landlord to enter for the purposes of inspection. The accident
which
gave rise to the claim was that when the upper portion of a
window
was being opened one of the cords of the window sash broke
with the result
that the top part of the window slipped down and
caught and injured the
plaintiff's hand. In the argument on behalf
of the plaintiff in the Court of
Appeal it was admitted that the
defect was a latent one (of which the
plaintiff did not know and
about which accordingly he could not give any
3
notice) but it was contended that (there was a statutory
obligation on the
landlord which was different from that contained
in an ordinary covenant
and that in the Act (Housing Act, 1925),
there were no words requiring that
any notice should be given to
the landlord. Furthermore, reliance was
placed on the statutory
right of the landlord to enter and inspect. Apart
from any such
statutory right the facts of the case showed that there was a
notice
posted up in the house containing certain conditions which included
a
reservation by the landlord of the right of entering the house at any
time
without previous notice in order to view the state of repair.
The Court of
Appeal held that the landlord was not liable and that
any liability was
conditional upon his having been given notice of
any defects even though
they were latent ones and that this result
was not affected by the fact that
the landlord had a right to
enter in order to inspect. There were divisions
of opinion on
certain points which arose: in particular on the point whether
by
reason of the breaking of the sash cord the particular dwelling
(which
was most limited in size) was rendered unfit for human
habitation. But
all three Lords Justices were of the opinion that
the claim failed because
the landlord did not have notice and
because in such a case as that under
consideration notice was
required before the liability of the landlord to repair
existed.
Lord Hanworth M.R. said (at p. 141) that it had long been
estab-
lished that where there is a covenant on the part of a
landlord to keep
premises in repair the tenant must give notice to
the landlord of what is
out of repair. He held that notice was
required whether or not the landlord
had means of access: he said
that the fact that the origin of a covenant was
statutory did not
give the covenant any higher authority than one inserted
in a
contract by the parties. Atkin L.J. said that in ordinary
circumstances
the obligation of a landlord to do repairs does not
come into existence until
he has had notice of the defect which
his contract to repair requires him to
make good. At p. 151 he
said: " I think the power of access that is given,
"
extensive though it may be, does not take the case away from the
principle
" from which the Courts have inferred the condition
that the liability is not
" to arise except on notice. The
position is quite a satisfactory one, because
" as soon as
the tenant is aware of the defect he must then give notice, and
"
if the landlord does not repair it, the landlord will be liable. If
in fact the
" tenant is not able to ascertain the defect,
there seems to be no reason why
" the landlord should be
exposed to what remains still the same injustice of
" being
required to repair a defect of which he does not know, which seems
"
to me to be the real reason for the rule. This was a case in which
notice
" was not given to the landlord. As I have said, it
appears to me that, as
" soon as the defect became so known
by the fall of the sash, the tenant
" was able to give notice
to the landlord and did give notice. In my view
" the
landlord then became under a liability to repair in the
circumstances
" of this case, because if he did not, the
house would be in a state not in
" all respects fit for human
habitation ; but as no notice was given, I think the
"
landlord was not liable." Lawrence L.J. at p. 153 said: "
On the question
" of notice I am in complete agreement with
the judgments delivered by
" the Master of the Rolls and
Atkin L.J. and have very little to add. In my
" opinion the
established rule is that the obligation of the landlord to keep
"
the premises in repair is not broken unless notice has been given to
him
" of the want of repair, and that mere knowledge is not
sufficient to saddle
" the landlord with liability. The
foundation of such rule is that the tenant
" in occupation is
generally in a far better position to know of any want
" of
repair. I am further of opinion that for the reasons stated by Atkin
L.J.
" the rule applies to latent as well as to patent
defects, and certainly applies
" to the defect which existed
in the present case."
The decision in Fisher v. Walters [1926] 2 K.B.
315 (a case where the
defects in the ceiling were latent) which
counsel for the landlord had sub-
mitted had gone too far, was not
expressly mentioned in the judgments.
If the decision in Morgan's case is correct it
would, I think, govern the
present case. Though all three Lords
Justices agreed as to the necessity for
notice it did not become
necessary for the Court to decide whether such
notice had to be
given by the tenant or whether knowledge in the landlord
of a
necessity to do repairs or notice from some other source to him of
4
such necessity would also suffice to create a liability
in the landlord to do
repairs. There was in that case neither
notice, to the landlord of the existence.
of the defective or
broken sash-cord nor was there knowledge in the landlord
of the
state of affairs.
In Summers v. Salford Corporation [1943] A.C, 283
a case came to this
House in which the tenant did give notice to
the landlord's agent that one
sash-cord in the only window of a
bedroom had broken. No repair was
effected and about two months
later the second sash-cord broke in circum-
stances causing injury
to the tenant. The issue that arose was whether there
was a breach
by the landlords of the implied undertaking (see section 2(1) of
the
Housing Act, 1936), that the house would be kept by the landlord
during
the tenancy in all respects fit for human habitation. In
his speech Lord Atkin
said, at p. 290: " In the present case
the point on which the Court of Appeal
" in Morgans case
decided for the defendant does not arise, namely, that
"
notice of the lack of repair complained of must be given to the
landlord
" before his statutory obligation arises. I can see
that different considerations
" may arise in the case of an
obligation to repair imposed in the public
" interest, and I
think that this question must be left open, and I reserve
"
to myself the right to reconsider my former decision if the necessity
arises."
Lord Thankerton also expressly kept the same
question open. So did Lord
Russell of Killowen. So did Lord
Wright. So did Lord Romer.
Then in McCarrick v. Liverpool Corporation
[1947] A.C. 219 the question
whether Morgan's case was
correctly decided was presented for consideration
in this House.
The tenant's -wife had fallen by reason of the defective
condition
of two stone steps leading from the kitchen to the back kitchen.
The
provisions of the Housing Act, 1936, were applicable. It was held
that
the house was not kept in the state required by section 2 of
that Act. No
notice of want of repair was given to the landlords.
They had the statutory
right of entry to view the state of the
premises. The defects would appear
to have been patent. The tenant
could therefore be aware of them: so also
could the landlords have
been had they exercised their right of entry. It was
argued that
Morgan's case was wrongly decided, that the Housing Act,
1936,
contained no provision requiring notice, that the duty
imposed on a landlord
by the Act (particularly as he was given a
right of entry to inspect) was
absolute and was analogous to that
imposed on a factory occupier by the
Factory Acts, and that the
effect of the legislation should not be minimised
or neutralised
by introducing notions inspired by the old law.
Very important questions of principle were therefore
raised. The significant
previous authorities were considered. It
was held that the decision in
Morgan's case was correct.
Lord Thankerton said that the effect of section
2(1) of the Act of
1936 was to incorporate the prescribed condition in the
contract
so that it became an integral part of it and the statutory origin
of
•the condition did not differentiate it, in any question
of construction, from
any of the conventional stipulations in the
contract: it followed, therefore,
that a condition as to notice of
the material defect (established by a long line
of authority) fell
to be implied. Lord Porter said that whatever view might
have been
taken of the section if no previous history lay behind it it had
to
be remembered that similar provisions in earlier Acts had been
interpreted
as only requiring the landlord to repair after notice:
he considered that it
was too late to re-interpret its meaning.
That was in 1946. Since then there
have been the Housing Act,
1957, and the Act now being considered. Lord
Simonds' speech was
concurred in by Lord Thankerton and by Lord
Macmillan: after
reviewing the authorities he clearly held that the provision
which
the Statute imported into the contract of tenancy fell to be
construed
in the same way as any other term would be construed and
that the correct
construction of the provision was that no
obligation was imposed on the
landlord unless and until he had
notice of a particular defect. Lord Uthwatt
said that it was an
implied term (resulting from the comprehensiveness of
the
statutory term and the circumstances necessarily involved in the
tenancy)
that in a case where the tenant knows the defect and the
landlord does not,
the obligation to do a specific act directed to
repairing the defect does not
arise until at least the landlord
becomes aware of the need for it.
5
The decision in McCarrick's case must have guided
landlords and tenants
in their business transactions in the years
since 1946. Later legislation has
followed. In my view, it would
not be within the intendment of the power
reserved in 1966 now to
disturb a decision which as Lord Porter indicated
was given in
1946 " finally to determine " the point first decided in
Morgan's
case in 1927 and then left open in Summer's
case in 1943. The question does,
however, arise whether the
decision of this House in McCarrick's case governs
the
present appeal which concerns a latent defect.
In McCarrick's case the defects were there to be
seen by the tenant. In the
present case no defect was visible and
so there was no visible defect to which
the landlord's attention
could be called. In McCarrick's case Lord Simonds
said that
the decision in Fisher v. Walters could not stand and
his speech
was concurred in by Lord Thankerton and by Lord
Macmillan. Lord Porter
said that no question of the latency of the
defect came in issue as it did in
Fisher v. Walters and
that if it did the decision in that case would require to
be "
carefully scrutinized ". Lord Uthwatt remarked that latent
defects were
not in question and he expressed no opinion as to
their position.
Though there were these reservations, Morgan's case
was approved and
Morgan's case must, I think, be regarded
as a case in which the defect was
latent even though some defects
in a window sash-cord might be visible.
I have cited above a
passage from the judgment of Atkin L.J. at p. 151.
At p. 150 he
said: " Here is a case of something which arose quite
suddenly.
" It is possible that a very careful inspection of
the window cords might have
" revealed the state in which
they were, but there are many other defects
" which arise
quite suddenly, leaks quite suddenly spring up in joints of
"
water pipes and gas pipes, and so on, and to say that the landlord
is
" responsible for the consequences of those not being in
repair in circum-
" stances in which no time could have
elapsed between the time when the
" defect first arose and
the time when the injury from it occurred, would
" certainly
be to impose a very harsh obligation upon a landlord which the
"
Courts do not impose except subject to a condition that he must
receive
" notice of the defect. To my mind in those
circumstances it is clear that,
" if the landlord gives the
exclusive occupation to the tenant, the landlord
" does not
in fact know, and in this case could not know of the defect."
In
my view, these and other parts of the judgment of Atkin L.J.
were based on
the reasoning that it is only when defects (though
previously latent or
invisible) becomes patent and are made known
to the landlord that his ability
to repair arises. Furthermore, it
seems to me that both the words of Lord
Simonds and his reasoning
in McCarrick's case show that a landlord's obliga-
tion to
take action only arises when he has notice of a defect. He will
not
have notice if no one knows that there is a defect.
The question does not now arise for express decision as
to whether a
landlord's obligation to repair will arise not only
when he receives notice
from his tenant of a defect but also if he
receives such notice aliunde or if
he has knowledge of it:
but I observe that in Griffin v. Fillet [1926] 1 K.B.
17,
where a lessee gave notice that steps to a dwelling-house
needed attention
but where the lessee did not know that the steps
were in fact actually
dangerous, Wright J. held that a liability
rested upon the lessor when sub-
sequently he, though not his
lessee, did acquire knowledge that the steps were
actually
dangerous. The purpose of a notice is to impart knowledge that
the
moment for action under a covenant to repair has or may have
arisen.
If a lessor who is under an obligation to keep premises in
repair acquires
knowledge that there is a state of disrepair which
may be dangerous then
even if such knowledge is not shared by the
lessee I would consider that there
arises an obligation on the
part of the lessor to take appropriate action.
I pass, then, to consider whether the Respondent had
either knowledge or
notice that the ceiling of the bedroom was
defective. It is impossible to
consider the facts of the case
without entertaining great sympathy with the
Appellants. Those who
as tenants of the Respondent in the early part of
1965 were in
occupation of the rooms above the rooms of the Appellants
undoubtedly
caused disturbance and annoyance for the Appellants. There
6
were frequent parties with music and dancing and there
was noise and banging
on the floors: even the windows were caused
to rattle and the lights to swing.
The Appellants complained both
to the upstairs tenants and to the
Respondent. In his evidence the
first Appellant said: " I told him that I
" could not
get any sleep at night through banging and jumping upstairs
"
and if there was not something done, that the ceiling would
eventually fall
" down." Further complaint followed: "
I told him if something was not
" done about the all-night
parties that my wife would be in bad health and
" so would I
and also that probably the ceiling would fall down."
Matters
were sufficiently serious as to involve the bringing of
proceedings, relating to
the nuisance of noise, in the Croydon
County Court. On the giving of specific
undertakings to the Court
the action was, in July 1965, withdrawn. Shortly
afterwards those
who had been responsible for the nuisance moved away.
That was in
1965. No defects in the ceiling were or became visible. Three
years
passed. Then on the 26th November, 1968, the ceiling fell.
The
learned Judge considered that it was probable, though perhaps
difficult to
prove conclusively, that it was the behaviour of the
young people in 1965
rather than old age alone which brought the
ceiling down in 1968. But once
the nuisance and the annoyance of
the noise had ceased in 1965 there is
nothing to suggest that
either lessor or lessee thought that there was need
to take any
action in regard to the ceiling. There is no evidence that there
was
any apprehension or any nervousness concerning its condition.
The
question naturally arises whether by reason of the events to
which I have
referred the Respondent had such measure of knowledge
or notice as would
require that he should take some action. But it
does not appear that anyone
thought that the ceiling had in fact
been weakened: the fear had been
expressed that it might or would
become affected if the nuisance continued.
The nuisance was then
abated. Much as I regret that recovery of damages
by the
Appellants is not possible I am unable to say that the decision
of
the learned Judge was in any way erroneous.
I would dismiss the appeal.
Lord Diplock
MY LORDS,
When Parliament first decided by section 12 of the
Housing of the Working
Classes Act, 1885, to impose upon landlords
of dwelling houses for the
working classes obligations as to the
physical state of the demised premises,
the method chosen was to
provide by statute that a term should be implied
in every contract
for letting for habitation a house or part of a house to
which the
Act applied. The term originally implied related only to the
physical
condition of the house at the commencement of the letting, viz.,
that
it was at that time in all respects reasonably fit for human
habitation. It
did not impose upon the landlord any duty to do any
work upon the premises
to make them reasonably fit for human
habitation after the commencement
of the letting nor did it give
him any right to do so, unless a right of entry
for this purpose
was reserved to him by the contract of letting. Any breach
of this
implied contractual term occurred once and for all at the
commence-
ment of the letting and any right to damages accrued
then.
By the Housing, Town Planning etc. Act, 1909, section
15, the landlord's
obligations were extended to the physical state
of the premises during the
continuance of the letting. Again the
method chosen was to provide by
statute for a further term to be
implied in the contract for letting, viz.,
" an undertaking
that the house shall, during the holding, be kept by the
"
landlord in all respects fit for human habitation."
This implied term did impose upon the
landlord an obligation owed to the
tenant to carry out such work
upon the premises during the continuance of
the tenancy as might
from time to time be needed to keep them reasonably
fit for human
habitation. But although created by statute the legal nature
of
this obligation was contractual. Its characteristics were the same as
those
7
of an obligation created by a repairing covenant in a
lease. What the statute
was providing was that any contract for
the letting of premises to which
it applied should be read and
given effect to as if it contained an express
covenant by the
landlord to keep the premises in such a state of repair as
would
make them reasonably fit for human habitation. The
landlord's
obligation lies in the field of contract not of tort.
His duty is not one of
reasonable care to avoid injury to the
tenant. It is a duty to perform his
contract.
Provisions in substantially the same form were
re-enacted in the Housing
Acts of 1925 and 1936. Their legal
effect was the subject of consideration
by the Divisional Court in
Fisher v. Walters ([1926] 2 K.B. 315), by the Court
of
Appeal in Morgan v. Liverpool Corporation ([1927] 2
K.B. 131) and
finally by this House in McCarrick v.
Liverpool Corporation ([1947] A.C. 219)
where the decision
in Morgan's case, and in particular the reasoning of
Atkin
L.J. in that case were approved. I shall be returning to these
cases
later. At this stage it is sufficient to say that as I read
Morgan's and
McCarrick's cases their ratio
decidendi was based upon (a) the contractual
nature of
the landlord's obligation resulting from the statutory
requirement
that it should be implied as a term in the contract of
letting and (b) the legal
characteristics of a repairing
covenant by a landlord in a lease or tenancy
agreement.
My Lords, section 32(1) of the Housing Act, 1961, which
your Lordships
have now to construe is not in the same terms as
the earlier legislation. But
it has the same essential
characteristics: (a) that the landlord's obligation
results
from a statutory requirement that it should be applied as a term
in
the contract of letting and (b) that the term to be
implied has the legal
characteristic of a repairing covenant by a
landlord in a lease. I can see
nothing in section 32 or 33 of the
Housing Act, 1961, which alters either
of these essential
characteristics of the obligation imposed upon the landlord
by
section 32(1). Reliance has been placed by the Appellant upon
section
33(7) which avoids any covenant or agreement "so far
as it purports to
"exclude or limit the obligations of the
lessor" under section 32(1). But
this merely refers one back
to section 32(1) to see what are the obligations
of the lessor
thereunder.
At the root of any analysis of the landlord's
obligations under a repairing
covenant lies the initial question
whether it is an undertaking by the landlord
to prevent the
premises ever getting out of repair during the continuance
of the
tenancy or whether it is an undertaking to do work of repair upon
the
premises from time to time as and when they have become out of
repair.
If it is the former the breach occurs as soon as the
premises are in fact out
of repair and continues until he has put
them back into repair. If it is the
latter, there is involved the
subsidiary question as to the time at which the
landlord's
obligation to do the necessary work of repair first arises.
Until
that time arrives there can be no breach of the obligation:
nor can there
be any breach thereafter if the landlord then
carries out the necessary work
of repair with reasonable
expedition.
In all the cases on this subject decided before Fisher
v. Walters to which
attention has been directed in the
argument, starting with Makin v. Watkinson
((1870)
L.R.6 Ex.25) and ending with Griffin v. Fillet ([1926] 1 K.B.
17), it
has been assumed, even though not expressly stated, that a
landlord's repair-
ing covenant is of the latter kind, viz., an
undertaking to do work of repair
upon the premises from time to
time if and when they have become out of
repair. This appears most
clearly in a passage in the judgment of Wright J.
in Griffin v.
Fillet upi sup at p. 22) where he says: " the lessor in
my
" judgment was not liable for breach of covenant until he
had been able to
" ascertain the nature of the repairs
required. This he knew by 8th April,
" and I think he acted
at his peril if he did not at once remedy the non-repair,
"
either by temporary measures, if the permanent repairs could not be
"
immediately effected, or by doing the permanent repairs, if this
was
" practicable. If he did not do this he committed a
breach of covenant ".
The cases to which I have referred were concerned with
the time at which
the obligation of the landlord to start works of
repair arose. I do not
8
propose to deal with them individually. They do not show
a continuing
logical development in the law nor any great
consistency in reasoning. But
by 1926 the result of half-a-century
of judicial decision was that it was well-
established that, at
any rate where the state of disrepair was known to the
tenant, the
landlord's obligation to start carrying out any works of repair
did
not arise until he had information about the existence of a defect in
the
premises such as would put a reasonable man upon enquiry as to
whether
works of repair were needed.
Though this at least was well-established by 1926, two
matters remained
open to doubt. The first is whether,
notwithstanding that the landlord has
previous information from
some other source about the existence of a defect,
his obligation
to start carrying out works of repair arises until he has been
given
notice of the defect by the tenant. It is unnecessary to decide
this
in the instant appeal, because the only information relied
upon is that which
was given to the landlord by the tenant. But
the second is a much broader
question. It is whether the rule that
the landlord must have information of
the existence of a defect in
the premises before any obligation on his part
to start carrying
out works of- repair arises, applies at all when the defect
is
latent, i.e., is of such a nature that the tenant did not know and
could not
have discovered by reasonable examination that the
premises were out of
repair. In such a case is the landlord under
an obligation to start carrying
out works of repair as soon as the
premises are in fact out of repair even
though he has no such
information as would put a reasonable man upon
enquiry as to
whether works of repair are needed?
This question arose in the Divisional Court in Fisher
v. Walters ([1926]
2 K.B. 315). It was a case of latent
defect—a falling ceiling, as in the instant
appeal. The
tenant relied upon the undertaking of the landlord implied
under
section 15 of the Housing, Town Planning etc. Act, 1909, that
the
house should be kept by the landlord in all respects fit for
human habitation.
Finlay J. decided it in favour of the tenant on
the broad ground that irrespec-
tive of whether the defect were
patent or latent the common law rule that
the landlord must have
information about the existence of the defect did
not apply to the
covenant implied by statute. Mackinnon J. held that the
common law
rule did not apply to latent defects, but left it open whether
it
would apply to patent defects.
In the same year a similar question came before the
Court of Appeal in
Morgan v. Liverpool Corporation
([1927] 2 K.B. 13). It was a case of a
broken window cord
which was held by the trial judge to be a latent defect.
All three
members of the Court of Appeal held that the implied covenant
under
the Housing Act, 1925, was to be treated as creating a
contractual
obligation on the landlord to keep the premises in
repair and that the land-
lord's obligation to start to carry out
works of repair did not arise until he had
notice of the defect.
While Lord Hanworth M.R. expressed doubt as to
whether the defect
was truly latent, Atkin and Lawrence L.J.J. decided the
case upon
the basis that the defect was latent and held expressly that
the
common law rule applied to all defects, latent as well as
patent.
Finally, there is the decision of your Lordships' House
in McCarrick v.
Liverpool Corporation ([1947] A.C.
219). Although the defect in that case
was patent the appeal was
brought to this House, as Lord Simonds said (at
p. 227), to test
the correctness of the decision of the Court of Appeal in
Morgan's
case. Lord Simonds' speech was concurred in by Lords
Thankerton
and Macmillan. He approved expressly the decision in
Morgan's case and
in particular the judgment of Atkin L.J.
He drew no distinction between
latent and patent defects and said
that the decision in Fisher v. Walters
(ubi sup) was
inconsistent with higher authority and could not stand. He
summarised
the law as follows: —" I conclude, then, that the
provision
" imported by statute into the contractual tenancy
must be construed in the
" same way as any other term of the
tenancy and, so construed, does not
" impose any obligation
on the landlord unless and until he has notice of
" the
defect which renders the dwelling not 'reasonably fit for human
"
'habitation'. That is the only question which your Lordships have to
9
" decide and I do not think it desirable or
necessary to consider what may
" constitute such notice."
Lord Porter and Lord Uthwatt delivered separate
speeches. Although
Lord Porter contented himself with expressing
the view that Fisher v. Walters
would have required
to be carefully scrutinised if the latency of the defect
had been
in issue in McCarrick's case he concluded by expressing his
agree-
ment with the reasoning and decision of Atkin L.J. in
Morgan's case which
was on the basis that the defect there
was latent. Lord Uthwatt simply said
that he expressed no opinion
as to latent defects.
My Lords, unless your Lordships are prepared to
over-rule Morgan v.
Liverpool Corporation despite
its express approval by this House in McCarrick
v.
Liverpool Corporation, and to hold that Lord Simonds'
statement of the
law that I have cited was wrong, I think you are
compelled to hold that
this appeal must fail unless the tenant can
show .that before the ceiling fell
the landlord had information
about the existence of a defect in the ceiling
such as would put
him on enquiry as to whether works of repair to it were
needed.
While it would be open to your Lordships to do so, this
is not I think a
suitable case in which to exercise the recently
asserted power of this House
to refuse to follow one of its own
previous decisions. An examination of the
reasoning in the
judgments in the cases on this subject during the last hundred
years
suggests that the law might easily have developed on different
lines
from those which it in fact followed. But, for my part, I am
not persuaded
that this development was clearly wrong or leads to
results which are clearly
unjust. McCarrick's case has
stood for 25 years ; Morgan's case for 45 years.
Landlords
and tenants and their insurers have entered into leases and
con-
tracts and Parliament has passed statutes on the basis that
the law is as stated
in those judgments. This House would not be
justified in altering it now.
The only remaining question in this appeal is whether
what the tenant
said to the landlord in 1965 at a time when the
tenants of the flat above were
still holding parties which
involved stamping on the ceiling, three and a half
years before
the ceiling fell, would have put a reasonable landlord upon
enquiry
as to whether works of repair were needed at that time. Bristow
J.,
who heard the evidence of the plaintiffs, found that the
complaints which
the tenant then made were not to the effect that
the structure of the ceiling
might already be defective, but that
if the stamping continued it would one
day bring down the ceiling
while it was going on. This finding was amply
supported by the
evidence and was, I think, clearly right.
My Lords, I would dismiss this appeal and in doing so
express my entire
concurrence with the judgment of Bristow J.
Lord Simon of Glaisdale
MY LORDS,
Lord Cross of Chelsea
MY LORDS,
(J02633) 80 2/73 StS
Lord Reid
Lord Morris of
Borth-y-Gest
Lord Diplock
Lord Simon of
Glaisdale
Lord Cross of
Chelsea
HOUSE OF LORDS
O'BRIEN (A.P.)
and ANOTHER
(A.P.)
v
ROBINSON
(No. 2)
LEGAL AID COSTS
Lord Reid
MY LORDS,
For the reasons given by my noble and learned friend,
Lord Diplock, I
would allow the Respondents to recover their costs
from the Legal Aid
Fund.
Lord Morris of Borth-y-Gest
MY LORDS,
I am of the opinion, for the reasons given by my noble
and learned friend,
Lord Diplock, that the Respondent should
recover from the Legal Aid
Fund the costs incurred by him in
resisting this appeal.
Lord Diplock
MY LORDS,
This appeal came direct from the High Court to your
Lordships' House
pursuant to section 12 of the Administration of
Justice Act, 1969, upon a
certificate of the Judge that a point of
law of general public importance
was involved and that that point
of law was one in which the Judge was
bound by a decision of the
House of Lords in previous proceedings and
was fully considered in
the judgments given by the House of Lords in those
previous
proceedings.
In the High Court none of the parties was legally aided
and the plaintiffs'
action was dismissed with costs. For the
proceedings on the direct appeal
to this House the
plaintiffs/Appellants were granted legal aid.
The
defendant/Respondent was not. His liability for the costs
incurred by him
to his own solicitors in successfully resisting
the appeal was covered by
insurance.
The financial position of the unsuccessful appellants is
such that no order
for payment of costs could properly be made
against either of them per-
sonally. Application has accordingly
been made by the Respondent for an
order under section 1(1) and
(2) of the Legal Aid Act 1964, that the costs
incurred by him in
the appeal should be paid out of the Legal Aid Fund.
The application was resisted by the Law Society upon the
same grounds
as those advanced in a similar application in Davies
(A.P.) v. Taylor where
the successful Respondent was
also covered by insurance in respect of his
costs. I would adopt,
without repeating, the reasons for rejecting the
submissions of
the Law Society which are to be found in the speech of my
noble
and learned friend, Lord Cross of Chelsea, in that appeal. So we
are
left with the broad question whether we are " satisfied
that it is just and
equitable in all the circumstances " to
make the order.
The only relevant circumstances which distinguish the
present appeal from
that in Davies (A.P.) v. Taylor is
that in the latter the unsuccessful plaintiff
in the action had
appealed successively to the Court of Appeal and to this
House;
each time unsuccessfully, whereas in the present appeal there was
but
one appeal direct from the High Court to this House.
2
My Lords, as the judge had certified and as this House
has held, the
law was well settled adversely to the Appellants'
claim by a decision of the
Court of Appeal which had been approved
by your Lordships' House.
Neither the Respondent himself nor his
insurers, as a company engaged in
the business of insuring
property owners against liability to third parties,
had any
business interest in altering it. They were content with the law
as
it had previously been laid down and as it would remain unless
your
Lordships could be persuaded to hold that the reasoning of a
previous
decision of this House was wrong.
The point of law involved was one of general public
importance. The
Judge had so certified before a legal aid
certificate was granted to the
Appellants. No criticism can be
made of the Legal Aid authorities for
granting it. But in the
result the Respondent's insurers have been put to
the expense of
successfully resisting an attempt to alter the law as previously
laid
down by your Lordships' House. In these circumstances, I am
satisfied
that it is just and equitable that they should recover
their costs of doing so
from the Legal Aid Fund.
Lord Simon of Glaisdale
MY LORDS,
I have had the advantage of reading in draft the speech
prepared by my
noble and learned friend, Lord Diplock. I agree
with it and with the order
which he in consequence proposes.
Lord Cross of Chelsea
MY LORDS,
For the reasons given by my noble and learned friend,
Lord Diplock, I
am of opinion that the Respondent should recover
from the Legal Aid Fund
the costs incurred by him in resisting
this appeal.
303623 Dd 197094 50 3/73 St. S.