Inner House case in which Ms Kirkham sought damages from her Landlords after she tripped and fell over uneven paving slabs on her garden path. She relied both on the terms of her lease and the Occupiers Liability (Scotland) Act 1960. The claim had been rejected in the Outer House and was appealed to the Inner House.

Lease
In terms of the lease, Link undertook to:

1. Clause 5.3
   “carry out all repairs within a reasonable period of becoming aware that repairs need to be done”
2. Clause 5.4
   “carry out inspections, at reasonable intervals, of the common parts”.
3. Clause 5.8
   “keep in repair the structure and exterior of the house, including … pathways, steps or other means of access …”

 Taking each of the clauses in turn the Inner house agreed with the findings of the Outer House:

1. Clause 5.3 did not come into play unless Link was made aware of a repair requiring to be done (which had not been done). Also, on a proper construction of the clause, Ms Kirkham could not rely upon deemed knowledge.
2. Ms Kirkham’s garden path was not a common part. It was not a “common facility” shared by other tenants or residents, but rather was a dedicated access to Ms Kirkham’s property.
3. Clause 5.8 did not impose any repair obligation over and above what was to be found elsewhere in the tenancy agreement or in statute. The words “take reasonable care” did not require to be read into the clause so that there could be argued to be a breach of a duty to take reasonable care by failing to inspect the pathway regularly.

Occupiers Liability
In terms of sections 2 and 3 of the 1960 Act, Ms Kirkham was entitled to such care as, in all the circumstances of the case, was reasonable to ensure that she would not suffer injury or damage by reason of danger arising from the state of the premises. In order to succeed, Ms Kirkham would have had to establish Link’s failure to take reasonable care for her safety.  For example, she would require to show a failure to set up an adequate system of inspection, or failure to properly implement a system of inspection which was already in place.

However, in this case Mrs Kirkham failed to provide evidence as to what other landlords in the same situation as Link did by way of periodic inspection. Therefore it was not apparent what Link required to do in relation to the footpath. On the evidence available, it had not been established that the system undertaken was inadequate.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.