As you may have been injured due to the poor condition of a property you rent, you could be entitled to claim compensation. At Harris Fowler we specialise in getting you the compensation you deserve. This page will set out the elements of a claim we will need to prove and some hints and tips to help your claim go smoothly.
As we have seen under Occupiers Liability it is rare that a landlord will meet the criteria of being an occupier for a claim in negligence. However the Defective Premises Act 1972 (DPA) assists you in bringing a claim as it allows tenants and other certain affected individuals to bring a claim.
In order to make a claim under the Defective Premises Act you have to prove
- That you are owed a duty by the Landlord under the DPA
- That the defect was a “relevant defect’ under the act
- That the Landlord did not take such care as could reasonably be expected
- That the landlord had actual/implied or imputed knowledge of the defect
- That the defect caused you injury
The First Part – Who is owed a duty
The first part of such a claim is to establish whether you were owed a duty by the landlord. The Act does not list the parties to whom a landlord owes an obligation it instead states that a duty is owed to “all persons who might reasonably be expected to be affected by defects”. This description will cover tenants as they could reasonably be expected to be affected by a defect in their own property but it also allows for claims by neighbours, visitors and co-habitants for example where a wall collapses onto a neighbour’s property injuring them.
The Second Part – Matter must be a relevant defect
The second part of a claim is to show that the defect that caused loss was one which is relevant under the act i.e. one which the landlord had an obligation to repair. This duty to repair is very wide and you do not have to be able to point to a part of the lease that states the landlord will be responsible for repairing the defect in question. The courts have found that it is enough that the landlord has a right of entry to repair a defect to show they have an obligation to maintain the property.
As the right to enter a property in order to carry out repairs is a standard term in most leases both private and commercial it means that the majority of leases will have a clause that results in the landlord having a obligation to maintain the property and repair defects.
The Third Part – Taking reasonable care
The next part of a claim relates to the wording in the DPA that the landlords “take such care as is reasonable in all the circumstances”.
In assessing whether the landlord has behaved reasonably the court will first assess what a reasonably skilled landlord should have done and then compare that action to the actions that were or were not taken by the landlord. The court when assessing what should have done will look at a number of factors
- the knowledge the landlord had of the defect
- The likelihood of injury occurring
- The severity of that potential injury
- The ease of preventative measures to protect against the defect
In example of the above, where a landlord knows that a girder in the ceiling could fall at any moment and kill the tenant the courts are likely to expect the landlord to react in a manner fitting the severity of the risk that the defect presents by warning the tenant at a bare minimum. If the landlord fails to do this and the beam falls onto the tenant it is likely the court would find the landlord has not acted reasonably.
In order to claim you have to show that the landlord has not behaved reasonably, this will be a matter of fact and one upon which your specialist personal injury lawyer will advise you further.
The Fourth Part – Knowledge
This is an area of the claim that can be problematic for some claimants. In claims where the defect has previously been reported to the landlord this will be relatively straightforward.
Another straightforward situation is where the defect has previously been reported to an agent, servant or employee of the landlord, for example a property management agency as the landlord will be considered to have implied knowledge of the defect. Implied knowledge can also arise where an employee, servant or agent of the landlord visits the property and the defect was readily visible to the agent. In such circumstances it is implied the landlord knew of the defect by way of their servant’s knowledge.
The position becomes more difficult where neither the landlord nor his agents knew of the defect. In such circumstances an argument will need to be made that the landlord had imputed knowledge.
Imputed knowledge is based on the idea that if the landlord has a right to enter the property to carry out maintenance and repair, then as long as the landlord was able to exercise that right then they will be deemed to have knowledge of the defect, regardless of whether an inspection has occurred, as long as the defect would have been visible upon inspection.
The Fifth Part – That the breach caused loss
The final part of bringing a claim is demonstrating that the Landlords failure to take reasonable care is responsible for causing the injury and losses being claimed, whether this is personal injury or other financial losses such as loss of earnings.
With personal injury this would seem straight forward, you slip on a wet floor with no warnings and fall breaking your wrist, it would seem obvious that the accident is the cause of your fractured wrist. But this becomes more complicated when before the accident you already had symptoms in your wrist or had underlying problems which you may not have even known about. Because of these complexities the court relies upon the opinion of independent medical experts as to what caused the injuries and how long they are likely to last.
If you have been injured in an accident it is important to seek medical advice as soon as possible to ensure you are getting the appropriate treatment for your injuries. In addition, as the medical expert will likely have sight of your records of attendance they will act as evidence as to the nature and extent of your symptoms and will help support your claim.
Because the court will rely upon the opinion of the medical expert it is important that the expert is aware of any previous health issues or accidents. In addition, as the expert will need to comment on whether any financial losses such as treatment received or time off work is due to the accident, it is important that you also discuss these with the medical expert.
Once the medical expert has provided their opinion as to whether the loss (time off work/treatment etc.) is as a result of the accident we will then need to collect evidence to calculate what each head of loss may be and your highly qualified and experienced lawyer will advise what is needed in respect of each head of loss you are looking to claim.
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