In a tragic case involving a tourist who was killed when he fell down a staircase on his honeymoon, the freeholder of the property was found not to be liable for the accident.
The newlyweds were staying in a flat in London when the accident occurred. The man's widow sued the freeholder of the flat, as well as the tenant under the head lease and the subtenant. A judge dismissed her claim against the freeholder on the basis that it had no real prospect of success. She challenged that decision in the Court of Appeal.
The tenant had replaced the staircase in the 1980s. The new staircase did not comply with building regulations as it was too steep and had no handrail at the time of the accident. The Court noted that, under the head lease, the primary duty to repair and maintain the flat fell upon the tenant, although the freeholder had the right to notify the tenant of any 'defaults, defects, decays, wants of reparation or amendment' and, if necessary, to enter the property and carry out works at the tenant's expense.
The widow's lawyers argued that the removal of the old staircase amounted to a breach of covenant which was not remedied by the installation of the non-compliant staircase. The freeholder therefore had a right to enter the property to rectify the breach, so a duty arose under the Defective Premises Act 1972.
However, the appeal was dismissed. It was assumed for the purposes of the case that the freeholder had consented to the replacement of the staircase, so the removal of the old staircase could not amount to a breach of covenant and did not trigger the freeholder's right to enter the flat.