Supreme Court
Action No. 84 of 1980
18th March, 1982
MOE, CJ.

Mr. Denys Barrow for the Plaintiff
Mr. Michael Young for the Defendant

Damages - Personal injuries - Swelling in shoulder and compressed fracture of the third lumbar vertebrae - Contributory negligence - Landlord and Tenant Ordinance, Cap. 201 - House to be fit for human habitation - Quantum of damages.

J U D G M E N T

The plaintiff claims damages for injuries which she says she received on or about the 27th August 1979 when the rail of the back stairway to premises which she rented from the defendant gave way whilst she was descending the stairway causing her to be thrown to the ground. She says that in or about the month of July, 1979, she gave notice to the defendant of the need to repair the premises and particularly the said back stairway but despite such notice, the defendant wrongfully failed to effect the necessary repairs and was in breach of her obligation under the Landlord and Tenant Ordinance CAP. 201.

There is no dispute that the plaintiff was a tenant of the defendant, that the stairway was in need of repair, that the plaintiff gave notice of the need to repair nor that the plaintiff fell from the stairway on the date in question. The defendant however says that the notice was given on or about the 20th August 1979, that she advised the plaintiff to refrain from using the stairway until it was repaired, that she made arrangements for the stairway to be repaired but there was a shortage of lumber at the time which delayed the repairs. She says she was not in breach of the obligation under the Landlord and Tenant Ordinance and claims that the plaintiff's fall was caused by the negligence of the plaintiff.

Section 6 of the Landlord and Tenant Ordinance CAP. 205 provides:

"(1) In any contract for letting any house for human habitation there shall, notwithstanding any stipulation to the contrary, be implied 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, in repair and in all respects reasonably fit for human habitation."

I turn first to determine when the defendant had notice of the need to repair. I accepted the plaintiff's evidence that the premises needed repairs to the extent that everything looked like it was going bad, that she told the defendant some time in May 1979 about the need to repair the premises including the at the railing to the back stairway was shaking. That the defendant was reminded more than once of the need to repair that railing. That the defendant raised the rent payable by the plaintiff partly on the ground that she had to effect repairs to the premises and the increased rent was first paid on the 1st August 1979. I found that the defendant had notice of the repairs required to be effected to the back stairway more than one month before the 27th August 1979.

From the time the defendant had notice that the back stairway needed repair it was her duty to repair immediately either permanently or rendering the stairway temporarily safe. (See Griffin v. Pellet [1926] 1 K.B. 17) What happened? Neither permanent repairs nor steps to make the stairway temporarily safe were taken. When a carpenter went to look at the stairway for the purpose of repairing it, he didn't do anything to repair it or make it temporarily safe, he sought to nail up the back door. Indeed no repairs were effected to the stairway until sometime after the plaintiff fell from the stairs on the 27th August 1979.

The back stairway concerned was part of the house tenanted. It led to the latrine and bathroom provided for the plaintiff under the tenancy and also her backyard. In the circumstances of this case use of the stairway was a normal use of the premises tenanted.

The evidence is that the rail of the stairway was rotten at two ends. (where it met posts at the top and bottom). If you rest on it hard it would break. The state of repair was such that the carpenter did not want the tenant to hold on to the rail. I concluded this was so because such use was likely to result in injury to the tenant.

I adopt the opinion of Lord Atkin as expressed in Summers v. Galford Corporation [1942] A.C. at page 289 "If the state of repair of a house is such that by ordinary user damage may naturally be caused to the occupier, either in respect of personal injury to life or limb or injury to health, then the house is not in all respects reasonably fit for human habitation" and accordingly hold that the defendant was in breach of her obligation to repair the stairway.

A question arises on the evidence as to whether or not in using the stairs, she leaned on the rail which needed repairs. Whereas the plaintiff maintained that as she was going down the stairs, she was holding on to the rail slightly as she usually did all the time as a guidance or a balance when the rail moved, slipped like roll over and when she knew she was on the ground along with the rail, she denied the suggestion that she was leaning over the rail looking for one Bernice Cattouse to bring her a light bill. The defendant stated that the plaintiff when asked how she managed to fall said "It was Bernice that was handing me a light bill and I would not have fall if Bernice didn't come and hand me a light bill." However what Bernice said was she called the plaintiff for the light bill. When the plaintiff came to her back door she told her to sit down and went inside to get the bill. While coming back out with the bill, she heard something drop and when she looked, she saw the plaintiff on the ground. She asked the plaintiff, Gial how you manage to fall down and the plaintiff said "I lean on the rail."

I accepted Cattouse's evidence that the plaintiff said she leaned on the rail and held that on a balance of probabilities the plaintiff was describing what she did. I also held the plaintiff's leaning on the rail to be consistent with the plaintiff's evidence that she was holding the rail as a guidance or a balance. She did not lean over the rail for Cattouse to hand her a light bill as put to her in cross-examination, but leaned on the rail in the process of using it as a guidance or balance. Holding the rail as a guidance or balance I regarded as an ordinary user of the rail as part of the stairway and it was reasonable in the circumstances for the plaintiff to lean on it during such user. What the plaintiff knew was that the rail was shaking because the post to which it was attached was shaking. She did not know that the rail was rotten and did not think that it would cause any harm to her. I do not find that there was any negligence on her part. In the result I found that the plaintiff's fall was the result of the defendant's failure to fulfil her obligation to repair the stairway.

As a result of the fall, the plaintiff suffered a diffused swelling in the region of her left shoulder and a compressed fracture of the third Lumbar Vertebrae. The fracture initially totally disabled her and she suffered severe pain in the back, having therefore to use painkillers. She remained in Hospital from the 27th August until September 1979 the better part of which was in bed. After discharge she attended hospital as an outpatient and received physiotherapy. She now suffers some stiffness and restriction of the spine, some residual tenderness over the site of the injury and restriction in the movement of the left shoulder. She now walks slowly lacking the normal smooth combination of movement expected. Her ability to walk deteriorated significantly since the accident before which she could walk normally. Her walking distance is limited. She suffers pain if she walks a distance, if she bends, sits or stands for long period. She cannot bend forward as much as the average person can. She is unable to extend her left-hand straight from the shoulder horizontally nor raise it straight above the head. She has to be very careful to avoid dislocation. However she suffers with a systematic disease but her life expectancy is good. The disease is one which could result in impairment in the ability to walk and in the use of the shoulder. But the deterioration in her ability to walk is not attributable to the systemic disease. I accepted the opinion of the Orthopaedic Surgeon that the fracture to the spine is the main cause for the deterioration in ability to walk but that in the process of aging there is a tendency to a stiffness of the spine which may be more advanced with persons with systemic herpes.

I turn now to determine the damages which the plaintiff is to be awarded. The plaintiff satisfied the court that she properly incurred expenses as claimed to the amount of $953.55 and I allow that sum. Following the principles set out in Cornilliac v, St. Louis 7 W.I.R. 491 upon which to base an award for general damages, I took into consideration (a) the injuries sustained and such loss of functional capacity as there was before recovery; (b) the pain and suffering which had to be endured; (c) the physical disability to be borne thereafter and the loss of amenities of which she has been deprived. There was no question of loss of pecuniary prospects. Doing the best I can I award the sum of $3,500.00 by way of general damages. Judgment for the plaintiff accordingly.

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