piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

CFAs prior to 1st April 2013 - will the old or new rules apply?

What do you have to do to ensure that Parts 43 to 48 of the existing rules continue to apply to CFAs entered into before 1st April 2013? Do advocacy or litigation services have to be provided before 1st April 2013 or not? For the existing rules to continue to apply to CFAs entered into before 1st April 2013 what needs to be done prior to 1st April 2013 will depend on whether you are acting under a Conditional Fee Agreement or a Collective Conditional Fee Agreement (those are the two funding arrangements defined by rule 43.2(1)(k)(i) of the existing rules). If you enter into a Conditional Fee Agreement prior to 1st April 2013 specifically for the purposes of provision of advocacy or litigation services to a person in relation to the matter which is the subject of proceedings then the new rules (CPR r.48.2(1)(a)(i)(aa)) state that the old Parts 43 to 48 will apply (with modifications about which we are yet to hear). There does not appear to be any suggestion that advocacy or litigation services actually need to be provided prior to 1st April 2013. The story is different if you have a Collective Conditional Fee Agreement. In that case the new rules seem to state that, for the old rules to apply, you have to have provided advocacy or litigation services to the person by whom the success fee is payable prior to 1st April 2013. The drafters of the rules could have made it a lot easier to understand what they were getting at by actually referring to CFAs in r.48.2(1)(a)(i)(aa) and CCFAs in r.48.2(1)(a)(i)(bb). A bit more clarity is provided by the explanatory note to Article 6 of the Conditional Fee Agreements Order 2013 (http://www.legislation.gov.uk/ukdsi/2013/9780111533437) which states “Article 6 contains a transitional and saving provision. The effect of the transitional provision is to provide that articles 4 and 5 do not apply to a CFA entered into in respect of a claim for personal injuries, or to a collective CFA under which advocacy or litigation services are provided to a person in respect of that claim, before the day on which these regulations comes into force” (i.e. 1st April 2013). That’s my take on the current rules which are still being finalised. I ought to add, in the time-honoured fashion, that this does not constitute legal advice and liability for any reliance placed on it is disclaimed…

Claimant’s solicitors pay wasted costs in RTA case

  The defendant insurers in the case of Rasoul v Linkevicius (5th October 2012, Unreported), successfully obtained a wasted costs order against claimant solicitors in an RTA claim. The case is a warning to claimant solicitors in RTA claims where there is an allegation of fraud and parties/witnesses who do not speak English. For defendants it is a lesson in how clear allegations set out from early on can have devastating consequences.  The background facts are similar to those commonly encountered in practice. Following the RTA correspondence ensued between the claimant’s solicitors and the defendant insurers. A modest PI claim was made and the insurers questioned the bona fides of the claim. The Defence pleaded fraud clearly against the claimant. He served a witness statement which did not have an integral statement of truth – the statement appeared on a separate sheet of paper rather than being part of the body of the statement itself. Two witnesses provided statements with statements of truth. At trial the claimant gave no evidence as only spoke Kurdish and was illiterate. His statement had been in English and not translated. The husband and wife witnesses were Kurdish. The husband spoke reasonable English but had given his statement over the phone to a solicitor he had not met and at trial he said that his statement was a substantial expansion of what he told the solicitor. The other witness (his wife) spoke no English – her husband translated for her whilst the solicitor took the statement over the phone. She gave evidence that she had never spoken to the solicitor before the statement arrived. Unsurprisingly the case was dismissed and the judge referred to either the extreme incompetence on the part of the solicitors or an attempt to establish a case on fabricated evidence. The insurer made an application for a waste costs order against the solicitors. The judge made an order on the basis that there was no evidence of a proper signed statement from the claimant or the witness taken before proceedings were issued. Although an interpreter turned up at trial he was not allowed to be used as there had been no order relating to his attendance. The judge was critical that the witnesses were not seen face to face by the solicitors given the allegations of fraud. He concluded that proper competent work by the solicitors would have ensured that the case collapsed long before the trial took place. Defendants will be alert to the possibility of pursuing claimant solicitors where fraud has been alleged, there has been incompetence on the part of claimant solicitors which, had it not taken place, would have been likely to have meant the case would not have gone ahead. Claimants will want to see witnesses and take statements face to face where there are allegations of fraud. They must ensure that a proper ‘integral’ statement of truth is signed on the witness statement. If someone is unable to speak English it is essential that a translator is involved in the process of taking the statement, that the statement is translated, the translator makes an appropriate statement (see Practice Direction to Part 32) and the presence of a translator at trial is anticipated by a court order. Careful preparation needs to be undertaken so that solicitors can protect themselves by showing that a witness did give the evidence set out in the statement – even if they deny it at trial and seek to blame it on the solicitors.  

20% CONTRIBUTORY NEGLIGENCE FOR MOONING

Monday passed (21 January) is officially recognised as the most depressing day in the year. And so, it was something of a distraction to the surrounding doom and gloom to read Swift J most recent judgment in the personal injury case of Ayres v Odedra [2012] EWHC 40 (QB). Those of you who read this blog regularly will know that Swift J’s decisions have been the subject of a number of postings.   Here are the facts. C had brought proceedings, via his Mother and litigation friend, after having been involved in a road traffic accident with D. C had been out drinking heavily with his friends, and as the evening progressed the more inebriated he became. C and friends found themselves in the city centre walking or perhaps more accurately stumbling their way towards a club. Being boisterous young people they were in the mood for ‘larking about’. In C’s case, he decided to stand in the middle of the road in front of D’s car and proceed to moon. For those of you unfamiliar with the expression Wikipedia offers a very helpful definition: “the act of displaying one's bare buttocks by removing clothing, e.g., by lowering the backside of one's trousers and underpants, usually bending over, whether also exposing the genitals or not.” D attempted to drive around C, yet somehow C ended up getting run over. At trial there was a dispute over whether C fell by reason of being drunk or that he had been inadvertently struck by D. The finding was that D had misjudged the timing of C’s actions; he was on notice of C’s condition not least because of his disinhibition and ought to have given him a wider berth. On the question of contributory negligence, C was found to have contributed to his injuries by being inebriated and mooning but the reduction was a modest 20%. The act of mooning is criminal offence in many countries, attracting sentences ranging from imprisonment through to corporal punishment. In this country it could constitute an offence of disorderly conduct or indecent exposure. However, more often than not the ‘mooner’ will get away with a warning by the police officer not to do it again. What is interesting, in this case, is that such disorderly conduct resulted in a low level of deduction. The two overriding factors that courts consider in respect of contributory negligence are the causative potency of a Claimant's act/omission and its moral blameworthiness to the injury in question. On any given view the Claimant scored highly on both fronts. Does this mean our courts are adopting a soft approach to such conduct?    

“Safe sex” – Part 2

Regular readers will recall the story so far in relation to this unfortunate “on the job” injury which raises important questions about activities which can properly be said to arise out of or occur in the course of employment.    The appellant, a female public servant, sued the Australian federal government after being injured while having sex on a work trip in a motel bedroom. A glass light fitting came away from the wall above the bed as she was having sex striking her in the face and causing injuries to her nose, mouth and a tooth as well as “a consequent psychiatric injury” described as an adjustment disorder.   The appellant’s partner’s evidence was that they were “going hard” and that he did not know “if we bumped the light or it just fell off”.  He added, not unreasonably, that he was “not paying attention because we were rolling around”.   The appellant claimed compensation because her injuries were caused “during the course of her employment” as she had been instructed to travel to and spend the night in the motel in a small town in New South Wales ahead of a departmental meeting early the next day.   The respondent, Comcare, the Australian government's workplace safety body, rejected the claim on the grounds that sexual activity “was not an ordinary incident of an overnight stay like showering, sleeping or eating”. That decision was upheld by the Administrative Appeals Tribunal.   However, on appeal to the Federal Court of Australia (FCA), the appellant’s counsel submitted that the accident was in truth “no different than slipping over in the shower”. In addition, “lawful sexual activity” should now be considered reasonable behaviour in a hotel room by an employee as “it's not the 1920s”.   Counsel for ComCare responded that people need to eat, sleep and attend to their personal hygiene but “you don't need to have sex”.   The judge, Nicholas J., allowed the appellant’s appeal - see PVYW v Comcare (No 2) [2012] FCA 395. The judge held that “While it is true that in determining whether an injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the applicant’s employment, there was nothing of that description in the present case which could justify a finding that the interval or interlude was interrupted by the applicant’s lawful sexual activity” – see [54] of the judgment.   Comcare appealed to the full court of the FCA which on 13 December 2012 dismissed its appeal – see Comcare v PVYW [2012] FCAFC 181.   In a carefully reasoned judgment the full court, presided over by Keane CJ., rejected Comcare’s essential submission that “an injured employee who claims to have been injured during an interval or interlude between periods of actual work must show both that the injury occurred at a place he or she was induced or encouraged by the employer to be and that the activity from which the injury arose was induced or encouraged by the employer, or was implicitly accepted”.   The court held that that the potential conditions for liability were not conjunctive in the sense that an activity test should be super-imposed on a place test. There was no combined or two-stage test. There was a single test which may be satisfied in either one of two ways. Further, the concept of, here, “a frolic of her own” was one which applies to wrongful acts. The court also made clear that “the views of the respondent’s employer about the respondent’s (lawful) activities were irrelevant, whether or not those views (if sought) may have reflected disapproval or indifference” – see [50] – [55] of the judgment.   This must be right. Why should being injured whilst having sex be any different to the claimant being injured whilst working out on one of the exercise bicycles or cross trainers in the motel’s gym provided that the injury occurred within an overall period or episode of work and negligence can be shown. Further, why should the employer approve when and how an employee has sex any more than where she chooses to have her breakfast?   Comcare is considering an appeal to the High Court, Australia's highest legal tribunal. In the meantime, common sense has prevailed, the judgment provides useful guidance on the scope of workplace injuries and I, for one, will in future double check the structural integrity of motel light fittings.  

Snails, Soft Drinks and Dissolving Rodents

Every law student who has sat through their first lecture on tort law is likely to come away remembering something about a Mrs Donoghue. She of course went to a cafe in Paisley and ordered a bottle of ginger beer to drink with an ice cream. As she poured out some of the drink, she alleged she found the remains of a decomposed snail. The rest is – as they say – history, as Lord Atkin promulgated his “neighbour principle” and the modern law of negligence was born.   A curious twist of course was that we will never know if there really was a snail in present in Mrs Donoghue’s giner beer as the case settled after the House of Lords remitted it for trial before the Outer House of Session.   Donoghue v Stevenson was preceded by another Scottish case of Mullen v AG Barr & Co Ltd. This concerned the finding, of dead mice in bottles of ginger beer by no less than three children of the same family. In Mullen the Scottish Court of Session dismissed the plaintiffs claims on the basis that there was no legal relationship between the drinks producer and the final consumer upon which to sue, but it is unclear if the mice were actually held to have indeed been present or not.   Despite what must be considerable advances in standards of manufacturing from 1920s Scotland, it seems that “animals in drinks” cases continue to be litigated.    Earlier this year, a Mr Ball of Edwardsville, Madison County, Illinois brought a lawsuit PepsiCo in negligence after he discovered the partially decomposed body of a mouse in a tin of Mountain Dew “soda”. He alleged he was violently ill after drinking some from the tin and discovered the mouse after he poured the remaining drink in to a cup. He was reported to have sought $50,000 in damages.   Quite aside from the fact that the bases for the law of negligence are settled, like the defendant parties in Donoghue and Mullen, PepsiCo denied the presence of the offending mouse. Their reasoning did not extend to the fastidiousness of the manufacturing process, when the drink was produced or bottled however. PepsiCo argued that Mountain Dew contains such acidic chemicals that any small animal in the tin, would have been all-but dissolved or at least reduced to an unrecognisable goo.   PepsiCo’s argument was that should a mouse be submerged in a fluid with the acidity of Mountain Dew would, after a week, “have no calcium in its bones and bony structures, the mouse’s abdominal structure will rupture, and its cranial cavity (head) is also likely to rupture”. Therefore, they argued that Mr Ball’s version of events could not possibly be correct as the mouse must have been in the tin for a period substantially in excess of a week.   An early advertising slogan for Mountain Dew in the 1960s was "Ya-Hoo Mountain Dew. It'll tickle you innards." One commentator has suggested that perhaps Pepsi ought to revive this slogan, however changing the word "tickle" to "dissolve"?    

Britons have the weakest necks in Europe…

  ‘Myth or fact?’ asks a report produced by APIL entitled ‘The Whiplash Report 2012’. The report is on APIL’s website and aims to debunk the myths being peddled in the debate surrounding claims for whiplash injuries. APIL has come to slay the dragon of ‘hyperbole’ and ‘hysteria’ surrounding the subject of whiplash. Our brave knight has taken on public perception of lawyers and whiplash claims with its sword of statistics. Our myth busters first tell us that there is no whiplash ‘epidemic’: based on a survey of 4,000 people we are told that only 1 in 100 suffered a whiplash injury in the last 12 months and, according to CRU statistics, the number of whiplash claims decreased from 571,111 in 2010/11 to 547,405 in 2011/12. Another myth is that ‘whiplash is a cash bonanza’. We are told that almost 40 per cent of respondents to the survey had not claimed compensation after suffering a whiplash injury. As I read the report I am left wondering whether they hadn’t claimed because they were in the wrong car… But there is no time for doubting as the next statistics follow on fast: almost 75% of those people who suffered a whiplash injury and whose symptoms lasted for more than a year, brought a claim and just over half of those whose symptoms lasted a couple of weeks brought a claim. Of those surveyed 33% said they reported their symptoms accurately and 47% said that they made their symptoms seem better than they were to the person making the diagnosis. There is no indication what the remaining 20% said. One can only assume from the options that they said they exaggerated their symptoms. APIL tells us the conclusion we should draw: it is human nature to put up with low level pain, or to put a brave face on it. Now when I look at children and some adults too, that is not what I observe. Most children seem to act in their own self-interests: they may play down symptoms but more often than not they may make something of them for attention or advantage. The pamphlet aspires to rational debate but I fear with such arguments it damages its own cause. What makes matters worse is that if 4,000 people were surveyed and only one in a hundred suffered from whiplash then these statistics about whiplash injury sufferers are based on the responses of 40 people – too small a number of people to draw any useful conclusions. The next myth the pamphlet seeks to tackle is that ‘whiplash is impossible to diagnose’. We are told that in the APIL survey 90 per cent of those injured had their whiplash diagnosed by a medical professional. Here the pamphlet seems to be falling into the same error that it alleges its opponents are guilty of: unfairly representing an argument and then knocking it down with simplistic reasoning. Surely the allegation is not that it is impossible to diagnose whiplash but that any diagnosis is for the most part based on subjective reporting of the patient. That is no one’s fault but needs to be handled carefully. The medic cannot do a blood test or a scan and say objectively that a patient has suffered whiplash. In most cases he or she can only take a history, record the patient’s ability to move, establish the mechanism of the accident and then conclude that his or her observations are consistent with such a diagnosis. The pamphlet might be on much more solid ground when it deals with the allegation that whiplash claims are driven by lawyers. Of those surveyed only 21 per cent were encouraged to pursue a claim by a lawyer. The other were encouraged by insurers (28%), friends (18%), claims management company (10%), trade union etc (6%), CAB (7%) and 32% said they were not encouraged but made a decision themselves. If you add up all those percentages you get 122%; there is probably a good explanation for this, but it is not given. The pamphlet goes on to deal with the allegation that ‘Britons have the weakest necks in Europe’ and the problem of fraudulent claims and the issue of trust in professionals generally. At the end of 19 pages, plenty of pictures and little text one is left feeling that this is shallow contribution which does little to raise the level of the debate it begins by attacking or to inspire trust in the profession. Image courtesy of marin at FreeDigitalPhotos.net

Personal Health Budgets and Heads of Loss - Assistance Animals?

The Times today carried an article entitled “NHS will cough up for music lessons and manicures.” It was referring to the three year trial of personal health budgets, whereby people in the NHS Continuing Care programme are able to determine themselves, how best to spend the money allocated to them.    Their budgets are of course typically spent on many items one routinely sees in schedules of loss, namely: carers, mobility aids, domestic assistance and medical expenses. However, the article makes reference to less usual expenses, such as manicures, hairdressing, musical instruments, theatre trips, craft materials and cooking utensils. The article mentions one woman with depression, using some of her budget to learn dress-making; another with multiple sclerosis, having used theirs to purchase a cat and reflexology sessions; and another with chronic lung disease, using theirs for singing lessons.   It is clear that such disperate, diverse and unusual uses for the personal health budgets were greatly therapeutic to the individual patients. However they are rarely seen claimed for in domestic personal injury cases.   Particularly, the use of “assistance animals” is something which is not always appreciated in the UK (beyond guide and hearing dogs), as it is in other parts of the world. Certainly in the USA they are medically recommended by physicians to help temper the symptoms of a range of physical and psychological illnesses. The author has had some experience of observing a case in the US Federal Court in May of this year, involving a woman with depression allegedly caused following a personal injury, who had a rather fine Airedale terrier who was trained to demand attention when it sensed his mistress was feeling low, thus distracting her from her condition. She described the dog as being essential to her health and wellbeing and hinted that he had prevented several suicide attempts. Should personal health budgets become the norm, the range of expenditures is likely to broaden away from the more conventional expenses associated with long term care. This will undoubtedly affect the range of heads of loss litigators are likely to come to have to consider. Should “assistance animals” become to be more recognised as an effective non-medical means of mitigating the symptoms of injuries (probably more commonly psychological), lawyers can expect to increasingly come across claims for the same. Perhaps in time, it will be necessary to have Ogden Tables for the life expectancy of different types or breeds of animals, or suggested actuarial tables relating to the cost of their keep.       NB, these cats are NOT assistance / service animals  

JURISDICTION, CONSUMER PROTECTION, CRUISING BY FREIGHTER AND A MOONLIGHT FLIT (FROM AN AUSTRIAN HOTEL)

     Peter Pammer sounds like the name of a character from a (badly written) sitcom, but is in fact the name of an Austrian with an eye for a bargain. While searching online for a cheap holiday, Mr Pammer alighted on the website of a German Company: Internationale Frachtschiffreisen Pfeiffer GmbH. This entity acted as an intermediary for the sale of an unlikely sounding voyage (a holiday of sorts) from Trieste to the Far East. The vessel which was to operate the voyage was an industrial freight ship. Sailing on such a ship might not obviously have conjured thoughts of reclining on a sun deck sipping gin and tonic, but the website did promise Mr Pammer (and anyone else who read it) an onboard fitness room, an outdoor swimming pool and a saloon, together with onboard video and television access. There was also a promise of double cabin accommodation with shower and toilet and a separate living room. The website further indicated that the freighter would make ports of call from which excursions ashore could be taken. Mr Pammer was sufficiently attracted by the website offer to enter into a contract for the voyage, but this was not with the intermediary company, but, instead, with another German corporate entity: Reederei Karl Schluter.             Mr Pammer apparently refused to embark on the freighter; perhaps predictably, it was his view that the conditions on board did not meet the description provided on the website. He had paid EUR 8,500 for the voyage and sought a refund. The German company – Reederei Karl Schluter – reimbursed only EUR 3,500 and Mr Pammer brought proceedings in the Austrian Court (viz. the Court of his nationality and domicile) for the balance: EUR 5,000. Reederei Karl Schluter contested jurisdiction on the ground that it did not pursue any professional or commercial activity in Austria and, accordingly, the Austrian Court lacked jurisdiction. At first instance, the Austrian Court declared that it had jurisdiction on the ground that the voyage contract was a consumer contract (for regulated “package” travel) and the intermediary company had, by internet advertisement, engaged in advertising activity in Austria. On appeal, Reederei Karl Schluter was successful on the ground that the index contract was a contract of carriage, rather than a consumer contract (the fact that the voyage afforded – or ought to have afforded – a degree of comfort to the passenger did not convert a contract of carriage into a consumer contract). Undaunted, Mr Pammer appealed to the Austrian Supreme Court which stayed proceedings and referred the following questions to the European Court of Justice Pammer v Reederei Karl Schluter GmbH & Co KG [2010] (European Court of Justice: C-585/08) “1. Does a voyage by freighter constitute package travel for the purposes of article 15(3) of Regulation No 44/2001? 2. If the answer to Question 1 is in the affirmative: is the fact that an intermediary’s website can be consulted on the internet sufficient to justify a finding that activities are being ‘directed’ to the Member State of the consumer’s domicile within the meaning of Article 15(1)(c) of Regulation No 44/2001?” Mr Pammer’s case highlights, perhaps, a phenomenon that is increasingly experienced by English consumers who are injured while enjoying – if that’s the right word – holidays overseas. They book a holiday by means of a website. The holiday is a not a regulated package (within the meaning of the Package Travel etc. Regulations 1992). The consumer is injured while using the services provided by his or her holiday accommodation and would like to bring proceedings in this respect in the English courts. The Hotel is owned/operated by a foreign company which provides an obvious impediment to English jurisdiction. If the website operator is also foreign owned/operated then that might seem to rule out any English proceedings unless it can be said that the contract is a consumer contract and that the website activity is directed to the Member State where the consumer is domiciled (England) within the meaning of article 15(1)(c) of the Judgments Regulation. The outcome of the reference to the ECJ in Pammer (joined with another case Hotel Alpenhof GesembH v Oliver Heller [2010] (C-144/09) which involved a consumer leaving a Hotel without payment), together with a more recent ECJ decision (Muhlleitner v Yusufi & anor. [2012] (European Court of Justice: C-190/11), now suggests that where the internet trader has manifested an intention to direct activity to a Member State other than that of its own domicile/registration then article 15(1)(c) will be satisfied and the English consumer injured overseas can nevertheless pursue a claim against the foreign internet trader in England. Such intention may be evidenced by the nature of the relevant trading activity (as found, for example, in tourism services), mention on the website of an international clientele or an itinerary comprising visits to Member States other than that in which the trader is resident or even simply the use of telephone numbers with an international code. The jurisdictional hurdle for the English consumer to jump is not a very high one. Internet holiday sales – whether or not the resultant contracts are “packages” – are now very common. Often, overseas bed-booking intermediaries will assert that a consumer’s contract is with the local (overseas) Hotelier or service supplier. In such cases, the Odenbreit decision and section 3 of the Judgments Regulation provides a potential jurisdictional route to a claim against the local supplier’s (foreign) insurer in the English Courts, but Pammer/Hotel Alpenhof/Muhlleitner now provide a potential basis for suing the tortfeasor service supplier itself in England – another useful weapon in the English consumer’s jurisdictional arsenal.

Quantifying Future Loss of Earnings: Ward v Allies & Morrison Architects [2012] EWCA Civ 1287

At the quantum only trial of a personal injuries matter, HHJ Cleary held that he did not have sufficient evidence pertaining to the claimant’s level of likely future earnings and the likely duration therof. Nor was he satisfied that the claimant was disabled. Accordinly, the trial judge made a lump sum award of £30,000 to allow the claimant to retrain following Blamire v South Cumbria HA [1993] P.I.Q.R. Q1, in addition to some £24,000 in general damages and £19,750 for past loss of earnings. The Claimant appealed on the contentions (amongst others) that the Judge should have used the Ogden tables to calculate lost future earnings (expected to quantify a loss of £176,633.46 on the basis that the Claimant expected to become a theatrical model maker) rather than have made a broad brush Blamire award.   The Court of Appeal (Aikens LJ, Kitchen LJ & Sir Richard Buxton) held that whilst the Ogden tables should be the usual method of quantifying such loss, this depended on the court’s ability to make findings of fact as to the likely earning capacity of a claimant, which the Judge in the instant case was unable to do. It was re-emphasised that it is for a claimant to prove their loss in this regard. In the instant case it was held that the judge was entitled to hold that there were too many imponderables to have allowed a firm finding as to the Claimant’s likely career progression and thus her future loss of earnings award. Thus the Judge was entitled to make a Blamire award.  

Claim dismissed - but do appeal!

The unfortunate Ms Drysdale was injured on the first day of her tenancy when she was ascending the steps to the property she had rented. She fell on the middle of three steps which had been painted red by the landlady to improve their appearance. There was a low wall (9.5 cm) next to the steps and a 2.5 metre (8 feet) drop on the other side of the wall. Ms Drysdale fell over the wall and was seriously injured. The judge in Drysdale v Joanne Hedges (27th July 2012, Unreported) found that the drop was dangerous and a reasonable landlord ought to have raised the wall or provided a guardrail. He also found that the paint increased the slipperiness of the steps. Nonetheless he dismissed the claim commenting that he had considerable sympathy for Ms Drysdale but that her remedy could only be in another court. The judgment provides an interesting analysis of what duties are owed by a landlord to a tenant for personal injury and in what circumstances. The case was brought under the Occupiers’ Liability Act 1957 (‘OLA’), the Defective Premises Act 1972 (‘DPA’) and at common law. The judge considered that the OLA did not apply: at the time of the accident the tenancy and occupation had commenced. He held that parliament could not have intended s. 4 of the ‘DPA’ and s. 2 of the OLA both to define a landlord’s duty. In fact s. 4 of the DPA replaced s.4 OLA. The judge turned to s. 4 of the DPA. He noted that in order to show a breach of the tenancy agreement and s. 4 Ms Drysdale had to show the premises were ‘not in good repair’. The judge cited Alker v Collingwood[2007] 1 W.L.R. 2230 in which a claimant had argued that a glass panel in a door in rented premises was dangerous because it did not contain safety glass. Carnworth L.J. said that a duty to repair could not be equated with a duty to make safe. You could let out a house with a very steep stairway with no railings but s. 4 does not require you to make safe such a dangerous feature. The judge also referred to Quick v Taff Ely Borough Council [1986] QB 809 in which Lawton LJ said ‘a tenant must take the house as he finds it; neither a landlord nor a tenant is bound to provide the other with a better house than there was to start with’. Applying all of this the judge found that although the drop from the middle step to the basement was dangerous, it was not out of repair; the drop from the steps would not have been unusual at the time the house was built. He also concluded that the steps were not actually out of repair. Accordingly there was no breach of section 4. The judge then turned to the common law. He observed that Cavalier v Pope [1906] AC 428 decided that a landlord who lets premises in a dangerous condition owes no duty to remedy the defect and no duty of care to a third party injured as a result of the defect. That decision had been criticised and attempts had been made to limit its effect. The claimant in Lips v Older [2005] PIQR P14 suffered a similar accident to Ms Drysdale. He was successful but Cavalier v Pope was not mentioned. It was also not mentioned in Sowerby v Charlton [2006] 1 WLR 568 by the Court of Appeal. That case also involved similar facts but the case was about admission of liability and whether a judgment should be set aside and not whether such a common law duty was owed. The judge concluded that Sowerby did not bind him. In the end the judge took the view that he was bound by Cavalier so far as the unguarded drop was concerned and that the landlady had no duty to guard it. However he did consider that she owed a duty to take reasonable care to ensure that the application of the paint did not create an unnecessary risk of injury. Without such a duty a landlord would have carte blanche to act with impunity and create dangers which would not be caught by the 1972 Act. Even though he found there was a duty in relation to the steps and that the presence of the paint unnecessarily increased the risk, he did not find a breach. A knowledgeable person might have known that the B & Q paint would have increased the risk but not the ordinary man on the street. Accordingly it could not be said that the landlady had failed to take reasonable care. So, no duty under the Occupiers’ Liability Act where section 4 of the DPA applies. No breach of duty under section 4 of the DPA where there is no disrepair. No duty is owed at common law by a landlord who lets premises in a dangerous condition (Cavalier is still good law) but a landlord owes a duty to take reasonable care not to create an unnecessary risk of injury. It is not clear whether the Claimant will appeal – watch this space!