Case No: PTA 99/8078
QBENF 99/0903
Neutral Citation Number: [2001] EWCA Civ 167
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS DISTRICT REGISTRY
(His Honour Judge Altman)
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Thursday 1st February 2001
B e f o r e :

THE PRESIDENT

LORD JUSTICE POTTER
and 
LADY JUSTICE HALE

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	CHRISTOPHER HUMPHREY SYKES
(by his Wife and Next Friend
DEBORAH GAYE SYKES		Claimant	
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	DERECK HARRY
and
TRUSTEE OF THE ESTATE OF DERECK HARRY, A BANKRUPT	First Defendant

Second Defendant	
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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Mr S. Brown QC and Mr G. Sigsworth (instructed by Rice-Jones & Smith Halifax for the Claimant)
Mr D. Partington (instructed by Musa A. Patel, Dewbury, West Yorkshire for the Second Defendant)
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Judgment
Lord Justice Potter: 
INTRODUCTION
1.	This is an appeal by the claimant, who is a patient suing by his wife and next friend.  He appeals from the judgment and order of His Honour Judge Altman, sitting as a Judge of the High Court dated 28 May 1999, by which the judge dismissed the claim of the claimant against the first defendant, his former landlord, for personal injuries caused as a result of the leakage of gas and fumes from a defective gas fire installed in the premises let by the first defendant to the claimant.
2.	The first defendant is and was at the time of the judgment, a bankrupt, having been so adjudicated on 27 August 1997.  Throughout most, if not all, of the interlocutory proceedings before trial, the first defendant represented himself.  By amendment, his trustee in bankruptcy (“the trustee”) was joined as second defendant in November 1998, but thereafter took no part in the proceedings.  However, the first defendant secured legal representation for the purposes of the trial, where he was represented by counsel.  Following the grant to the claimant of permission to appeal, the trustee at first maintained the position that he was not interested in resisting the appeal on behalf of the first defendant’s estate.  Nor was he prepared to take over the representation of the first defendant in the conduct of the appeal, when the latter  found it impossible to find solicitors prepared to act for him.  The first defendant then applied out of time to this court for permission to appeal in respect of an ‘unless’ order for disclosure of documents made earlier in the proceedings by His Honour Judge Peter Fox (sitting as a Deputy High Court Judge) on 3 November 1997, as well as earlier orders of District Judge Slyn dated 8 July, 18 July and 27 August 1997.  On 14 July 2000 this court made an order adjourning the appeal and the first defendant’s application so that the trustee could be invited to consider whether to take over the representation of the first defendant.  Pursuant to further directions by the court and, shortly before the hearing of this appeal, the trustee accepted that invitation.  Meanwhile, the first defendant also applied to this court out of time, seeking permission himself to appeal the judgment and order of Judge Altman, which are the subject of the claimant’s appeal.
3.	At the outset of the hearing of the appeal on 23 November 2000, we made it clear to the first defendant that, not only did he lack standing without the support of the trustee (which was not forthcoming) to apply for permission to appeal from the interlocutory orders of 8 July, 18 July, 27 August and 3 November 1997, but that such application was doomed to failure, and indeed was otiose, on the grounds that the first defendant had been successful at trial which had since taken place. It was similarly unnecessary and inappropriate for him to seek leave to appeal against the judgment and order in his favour, save insofar as his application was one for permission to serve a respondent’s notice to affirm the judgment (out of time) on grounds additional to those advanced by the judge.
4.	It then emerged, that the real ground of complaint of the first defendant was that there had been, in the trial bundles of documents before the judge, medical reports and other evidence which demonstrated, or at least suggested, that the reason for the claimant’s admission to hospital was not asphyxiation as the result of fumes from his gas fire but was in truth a pre-existing medical condition of the claimant, which suggestion the first defendant told us he was investigating for the purposes of an application to adduce further evidence in order to secure a retrial.  Such application was not one supported by the trustee.  In the circumstances, the court indicated that it would give judgment on the application together with the appeal, having afforded the first defendant an opportunity to identify in writing the documents in the trial bundle to which he referred once he had had a further opportunity to go through it.  We now turn to consider the claimant’s appeal.
THE FACTUAL BACKGROUND
5.	The first defendant owned a number of properties in Halifax, West Yorkshire which he let for residential occupation.  One of these was 181 Stainland Road, which adjoined 183 Stainland Road, where the first defendant lived.  The chimney of No. 181 was the flue for gas fires installed in the downstairs lounge and kitchen which provided the heating for the whole house.  The gas fire in the lounge was installed in 1985 or 1986, shortly before the first defendant let No. 181 to the claimant and his wife, Mrs Sykes.  A shorthold tenancy agreement for one year was signed by the parties, but no copy survived and thereafter the tenants held over with no further written agreement or documentary record.  The judge found that it was a term of the tenancy agreement that the first defendant would be responsible for repairs to the building and in particular to the gas fire, the tenants agreeing to give access to the landlord for the purpose of such repairs, having first given notice to the landlord of the need for repair.  He also found that there existed the specific covenant implied by s.11 of the Landlord and Tenant Act 1985 that the first defendant would:
 “….keep in repair and proper working order the installation in the dwelling-house for space heating…”
and that such obligation applied to the gas fire.
6.	The gas fire, which was fitted shortly before commencement of the tenancy, replaced an earlier installation in respect of which the first defendant had received notice of a dangerous gas explosion from the Gas Board in relation to an escape of gas from the governor.  The new system was tested by NEGAS who issued a service job voucher to the first defendant (which was still in his possession).  It bore the following words on the reverse:
 “Badly maintained and infrequently serviced, even the best gas appliances can become costly…..perhaps even dangerous.  Left neglected faults can develop….Pumps, valves and thermostats all get worn..burners become choked…ventilation goes unchecked.
At best it’s an expensive waste.  At worst – a real safety hazard…
Our Star plans offer you a welcome choice of yearly service  agreements…”.
7.	The first defendant did not enter into any service agreement.  Nor did he understand that the tenants would do so.  The judge held as follows:
 “I find that Mr Harry never expressly agreed to be responsible for such servicing.  However I find the evidence of his experience with the earlier fire, from what happened when the fire was checked in 1988 and the way he responded when later challenged about it, that Mr Harry was well aware throughout the period of the tenancy of the importance of regular servicing of the fire, and of the risk of the development of defects which may cause a danger if such servicing did not take place….I also find that Mr Harry knew that the fire had never been serviced and that he did not expect it to be the responsibility of the tenants”.
8.	At about 4.30 p.m. on 4 February 1994, Mrs Sykes, with others, entered 181 Stainland Road and found the claimant unconscious in front of the lit gas fire where he had apparently fallen asleep that morning after coming in from work during the previous night.  He was taken to hospital where he was later diagnosed as suffering from carbon monoxide poisoning which was admitted at trial to have been caused by emissions from the gas fire.  Inspection by experts shortly after 4 February 1994 found a number of defects set out in a joint report.  Their findings relevant to the emission of carbon monoxide were:
1.	There was a visible gap of between ¾ and 1” along the top edge of the fire where it should have been attached to the closure plate.  This enabled carbon monoxide to remain in the room when produced by the fire as a result of an existing chimney blockage.
2.	There was a low level blockage in the chimney/flue.  This was composed of parging and soot.  At the bottom was a large piece of stone or parging which blocked a substantial part of the opening and above this was other finer debris.  This material filled two buckets.
3.	There was an accumulation of lint and debris inside the fire from which the experts assessed that the fire had not been serviced for at least five years (in fact it was eight years).
4.	The heat exchanger was cracked and damaged.  This again led to gas being emitted into the room when the chimney was blocked.
It is of interest that there were two dead budgerigars in a cage in the lounge.  The experts stated that, due to their metabolism, they were more susceptible than humans to gas poisoning and it was believed that they had perished during the day of 4 February.  
9.	The experts concluded that:
 “If a service had been carried out on the fire the crack to the heat exchanger, the air flow intake blockage, and flue blockage would have been discovered”.
Their report concluded:
 “The Lounge Gas Fire provided the source of Carbon Monoxide due to lack of service.  The blocked flue in  the split heat exchanger caused combustion products to spill into the room…resulting in a dangerous concentration of Carbon Monoxide in the room atmosphere.”
THE JUDGE’S FINDINGS OF FACT
10.	As a result of the evidence of the various experts the judge stated:
 “I find that the development of these defects and the progressive blocking of the flue would have been apparent on routine servicing both as to the physical obviousness of the signs and the period of time it has lasted.  It seems impossible to put an accurate time scale on it…but I find on analysis of the evidence, the defects, particularly the development of the blockage, had been going on for a long period and would readily have been identified if the fire had been properly serviced.
I also find that there was a final event, probably a fall, which closed whatever gap still remained in the flue whether at high or low level which increased the emission of carbon monoxide into the room…
The last straw only broke the camel’s back because the back had previously been loaded with the rest of the bale.  I find…the final fall would not have had the result it did if it had not followed the progressive deterioration of the flue and the accumulation of other defects.”
11.	So far as the first defendant’s state of knowledge was concerned, the judge found:
 “I find that the Defendant by his knowledge of both the need for servicing and also the lack of any servicing during the lifetime of the gas fire, was put on enquiry of the risk of development of defects such as occurred in this case.  And it follows that he was put on enquiry during the period which followed the actual existence of the defects in this case.  Whilst he was put on enquiry that there was a real risk that these defects had occurred and whilst this happened after the time when they had developed, his “knowledge” of the risk came from the lack of service, and not from the existence of the defects themselves.”
THE RELEVANT LAW
12.	The claimant’s case was put both in contract and in tort:  in contract on the basis that the first defendant was under an implied obligation to keep the gas fire in repair and proper working order under S.11 of the Landlord & Tenant Act 1985 and in tort on the basis that, by reason of his failure to service the gas fire regularly or at all during the course of the lease, and thereby to learn of and/or prevent the development of the defects we have listed in paragraph 8 above, he was in breach of s.4 of the Defective Premises Act 1972 (“the 1972 Act”), as a result of which the plaintiff suffered carbon monoxide and the consequent brain damage.
13.	S.11 of the 1985 Act deals with the repairing obligations of landlords towards their tenants under short leases.  It provides:
 “(1)	In a lease to which this section applies…there is implied a covenant by the lessor – 
(a)….. 
(b)		to keep in repair and proper working order the installation in the dwelling-house for the supply of…..gas…
(c) 	to keep in repair and proper working order the installations in the dwelling-house for space heating and heating water.”
Further, there is implied into the tenancy a covenant by the tenant that the landlord may, at reasonable times of day and on 24 hours written notice, enter the premises for the purpose of viewing their condition and state of repair: s.11(6).  The landlord also has the right to enter the premises for the purpose of carrying out the work required under the covenant for repair: McGreal –v- Wake (1984) 269 EG 1254.
14.	It has been widely assumed, and the judge accepted, that s.11 of the 1985 Act is to be interpreted in the light of the decision in O’Brien v Robinson [1973] AC 912 in which the House of Lords held in respect of the implied covenant of repair imposed by s.32 of the Housing Act 1961, the predecessor to s.11 of the 1985 Act, that such obligation extends only to cases where the landlord has knowledge of  the defect, but that it is sufficient if he has information about the existence of a defect which would put a reasonable person on enquiry as to whether repairs were needed.  In British Telecommunication Plc v Sun Life Assurance Plc [1996] Ch.69, Nourse L.J. conducted a review of the earlier authorities, the effect of which he summarised in this way:
 “It is now established by a line of authority culminating in the decision of the House of Lords in O’Brien v Robinson [1973] AC 912 that, where a defect occurs in the demised premises themselves, a landlord is in breach of his obligation to keep them in repair only when he has information about the existence of the defect such as would put a reasonable landlord on inquiry as to whether the works of repair to it are needed and he has failed to carry out the necessary works with reasonable expedition thereafter: see per Lord Diplock, at pp.928b, 930b,e.”
It is pertinent to add that it is not necessary that the acquisition of such knowledge should come from notice or information supplied by the tenant himself.
15.	S.4 of the 1972 Act provides as follows:
“(1)	Where premises are let under a tenancy which puts on the landlord an obligation to the tenant for the maintenance or repair of the premises, the landlord owes to all persons who might reasonably be expected to be affected by defects in the state of the premises a duty to take such care as is reasonable in all the circumstances to see that they are reasonably safe from personal injury or from damage to their property caused by a relevant defect.
(2)		The said duty is owed if the landlord knows (whether as the result of being notified by the tenant or otherwise) or if he ought in all the circumstances to have known of the relevant defect.
(3)		In this section “relevant defect” means a defect in the state of the premises existing at or after the material time and arising from, or continuing because of, an act or omission by the landlord which constitutes or would if he had notice of the defect, have constituted a failure by him to carry out his obligation to the tenant for the maintenance or repair of the premises; and for the purposes of the foregoing provision “the material time” means – 
a)	………
b)	…..the earliest of the following times, that is to say -
i)	the time when the tenancy commences;
ii)	the time when the tenancy agreement was
entered into;
iii)	the time when possession is taken of the premises in contemplation of the letting.
(4)	Where premises are let under a tenancy which expressly or impliedly gives the landlord the right to enter the premises to carry out any description of maintenance or repair of the premises, then, as from the time when he first is, or by notice or otherwise can put himself, in a position to exercise the right and so long as he is or can put himself in that position, he shall be treated for the purposes of ss.1-3 above but for no other purpose as if he were under an obligation to the tenant for that description or maintenance or repair of the premises; but the landlord shall not owe the tenant any duty by virtue of this sub-section in respect of any defect in the state of the premises arising from, or continuing because of, a failure to carry out an obligation expressly imposed on the tenant by the tenancy.
(5)	For the purposes of this section, obligations imposed or rights given by any enactment by virtue of a tenancy shall be treated as imposed or given by the tenancy.”	
S.6(3) of the 1972 Act provides that:
 “Any term of an agreement which purports to exclude or restrict, or has the effect of excluding or restricting, the operation of any of the provisions of this Act, or any liability arising by virtue of any such provision, shall be void.”
16.	S.4 of the 1972 Act was passed to replace s.4 of the Occupiers’ Liability Act 1957, which Act had in turn been passed to alleviate the former position under the common law (see Cavalier v Pope [1906] AC 428) that a landlord was under no liability to his tenant’s family or visitors for injuries suffered by reason of the condition of let premises,  on the basis that the letting transferred to the tenant all rights of control over the premises and that third parties must therefore look to the occupier for any remedy in law.  S.4 of the 1957 Act provided in effect that a landlord who was under a repairing obligation to his tenant owed to all those who normally visited or had goods on the premises a common duty of care in respect of his discharge of that obligation.  However, since the landlord was not usually liable to his tenant unless he had received from him notice of a defect (see McCarrick v Liverpool Corporation [1947]  AC 219, later affirmed and extended in O’Brien v Robinson (above)), the rights of a visitor against the landlord generally depended on whether or not the tenant had given the landlord notice of the defects in the premises responsible for the injury to the visitor; see Law Commission Report No. 40 (Civil Liabilities of Vendors and Lessors for Defective Premises), paras 56-59.  The 1972 Act had the additional purposes of (a) extending the category of protected persons from visitors to all those who should have been in the landlord’s contemplation as likely to suffer injury as a result of failure to repair and (b) to extend such liability from cases where the landlord was under an obligation to repair to the position where he had only a right to repair. (See para 68 of the Law Commission’s Report).
THE JUDGE’S CONCLUSION ON THE LAW
17.	Following his findings of fact as set out in paragraphs 5-11 above, the judge considered the law.  So far as the first defendant’s obligation of repair under s.11 of the 1985 Act was concerned, having considered O’Brien v Robinson and British Telecommunications v Sumner, the judge stated that:
 “There may be cases in which there is sufficient evidence without specific express knowledge of the specific defect, which nonetheless constitutes such notice as to put a landlord on enquiry as to whether repairs should be carried out.”
Neither party has suggested before us that the judge was in error in that respect.  However, having found that the first defendant, as landlord, had no contractual obligation to service the gas fire, the judge said of his opportunity to do so:
 “It was simply a means of knowledge from which, it is said, he was put sufficiently on inquiry as the existence or likely existence of the defect…I bear in mind the nature of the defect which really caused the damage and the landlord had knowledge to some extent of the importance of servicing.  I am sympathetic with the plaintiff and, in human terms, regret that a landlord who was able to say with such confidence afterwards ‘it had not been serviced’ has not been troubled to concern himself with it over the years.  Nonetheless when I come to apply the principles of law that have been developed, I do not consider that the facts which I have found .. are sufficient, in the absence of knowledge of the actual defect, to impute the landlord such knowledge as to give rise to the obligation of repair.”  (emphasis added)
18.	The claimant challenged that finding on appeal, arguing in relation to s.11 of the 1985 Act that a duty to ‘keep in proper working order’ implies a greater obligation to make enquiries than does a simple duty to ‘keep in repair’.  Wisely, however, Mr Brown QC did not press the point, recognising that it would be difficult to hold that the obligation in one part of the covenant was stricter than the obligation in the other.  His principal ground for challenging the judge’s decision relates to his approach and conclusions in respect of the first defendant’s duty of care under s.4 of the 1972 Act.  In that respect the judge referred to, and accepted, the statement in Woodfall on Landlord and Tenant (9th ed) at para 13.066 to the effect that:
 “It seems possible for a landlord to be in breach of the duty of care imposed on him by Section 4 of the Defective Premises Act 1972 notwithstanding no notice of the defect has been given by the tenant and notwithstanding that the landlord did not actually know of the defect.  That is because it is provided that the duty is owed if the landlord knows (whether as a result of being notified by the tenant or otherwise) or if he ought in all the circumstances to have known, of the relevant defect.”
 [See also the view expressed in Winfield & Jolowicz on Tort (15th ed) at p.325].
However, the judge then proceeded to treat the duty of care imposed by s.4 as co-extensive with the contractual duty to repair imposed by s.11 of the 1985 Act.  In his view, in the absence of actual knowledge of a particular defect, a duty:
 “.. would only arise on a proper construction of the [1972] Act where such obligation also arises without that knowledge in the lease as between the landlord and tenant in the particular case.”
In the view of the judge, the definition of a ‘relevant defect’ in s.4(3) of the 1972 Act, namely one which ‘would if [the landlord] had had notice of the defect have constituted a failure by him to carry out his obligation to the tenant’ meant that:
 “The definition of a relevant defect cannot exist…on a proper construction of that statute outside the obligation as between landlord and tenant.
Therefore, it seems to me, as between landlord and tenant, section 4 does not on the face of it give the tenant a protection greater than that which exists as between him and his landlord by virtue of the lease.  It is, as it were, it seems to me, a public liability provision….
….. for the purpose of these proceedings, where the question of knowledge needs to be examined in relation to the primary covenant implied between landlord and tenant,  it does not seem to me that the Defective Premises Act takes the matter any further”.
19.	In that respect Mr Brown submits that the judge was in error.  He submits that the duty under s.4 of the 1972 Act is a duty of reasonable care in all the circumstances, tied in, and analogous, to the common duty of care and the ordinary law of negligence; it is not to be regarded as dependent upon identical constraints and liabilities to those imposed in the field of contractual liability between landlord and tenant and, in particular, the question whether the landlord has been ‘put upon inquiry’ of the existence of a defect.  He goes on to submit that, judged by the appropriate test, the findings of the judge were sufficient to place the landlord in breach of his duty under s.4(1) to take such care as is reasonable in all the circumstances to see that the claimant (as a person who might reasonably be expected to be affected by a defect in the fire) was reasonably safe from injury caused by such defect.
S.4 OF THE DEFECTIVE PREMISES ACT 1972
20.	So far as the ambit and standard of the landlord’s duty of care is concerned, I consider that the claimant is correct.  I have already referred to the statutory purposes underlying s.4 of the 1972 Act (see paragraph 16 above).  The purpose of the 1972 Act was to break away from the historic limitations placed by the common law upon the duty/liability of a landlord to persons injured as a result of defects in the condition of premises owned by him and, in particular, the practical fetter imposed upon the move towards a common duty of care under s.4 of the 1957 Act which was imposed by a provision in sub-section (4), that the landlord was not deemed to be in default of his duty unless the relevant defect would be actionable at the suit of the tenant.  Yet that is the very fetter which the judge’s interpretation of s.4 of the 1972 Act would (at least in part) perpetuate.
21.	In this connection, sub-section 4(3) of the 1972 Act, when defining a ‘relevant defect’ for the purposes of sub-section (1), is designed to make clear that a landlord’s broad duty of care under sub-section (1) is responsible only for such defects as fall within the scope of those repairing obligations as expressed or implied in the lease.  However, because the relevant defect is also defined in terms of the landlord’s failure to carry out such obligations, and thus argument might otherwise arise as to whether or not he had notice of the relevant defect, the relevant defect is defined in terms which preclude such argument i.e. as ‘an act or omission by the landlord which constitutes or would if he had notice of the defect have constituted a failure by him to carry out his obligation’.  Thus, the reference to the obligation between the landlord and tenant is inserted to show that the person to whom the duty is owed under sub-section (1) is not to be regarded as in the same position as a tenant vis-à-vis his landlord suing under the lease.  Such a tenant would be obliged under O’Brien –v- Robinson to show that the landlord had notice of the defect (i.e. actual notice or notice of facts which put him on enquiry as to the defect), whereas a person suing under the duty owed by the landlord under sub-section (1) is relieved of that obligation.  Such a claimant merely has to show a failure on the part of the landlord ‘to take such care as is reasonable in all the circumstances’ to see that the claimant is reasonably safe from personal injury.  Further, that duty is owed if the landlord ‘ought in all the circumstances’ to have known of the relevant defect, a test which is general in its terms and is emphatically not expressed to be limited by concepts of contractual notice; rather is it expressed in the familiar terms of common law negligence.  Finally, (and this is common ground between the parties) there is no express or implied exclusion of the tenant himself from the category of ‘persons who might reasonable be expected to be affected’, and the obligation to take reasonable care in all the circumstances cannot be excluded or restricted by contract: see s.6(3).
22.	The judge appears to have based the legal conclusion to which he was reluctantly driven upon his view that s.4 of the 1972 Act was a ‘public liability’ provision, by which in this context he appears to have meant that it was concerned with the duty of the landlord to third parties other than the tenant, the landlord’s obligation to the tenant continuing to be governed by the covenant of repair expressed or implied in the lease between them: see the last passages in the judgment quoted at paragraph 17 above.  As it seems to me, and at the risk of repetition, there is a three-fold answer to the judge’s concern in this respect.  First, the wording of s.4(1) is general in its terms and does not suggest any intention to exclude the tenant from the category of ‘persons who might reasonably be expected to be affected by defects in the state of the premises’, to whom the landlord owes his general duty of care.  Second, to interpret sub-section (3) so as to exclude the tenant as a beneficiary of the statutory duty laid down in sub-section (1) would be contrary to the apparent intention of s.6(3) which makes clear that the parties to a lease cannot by their agreement exclude or restrict the operation of  any of the provisions of the act or any liability arising thereunder. Third, to treat the wording of sub-section (3) as imposing on sub-section (1) the requirement of notice as defined in O’Brien –v- Robinson would be contrary to the overall statutory intention (see paragraph 15 above).  
23.	Thus, I consider that the judge was in error in equating the task of the claimant, as tenant, in establishing a breach of duty under s.4 of the 1972 Act, with his need under s.11 of the 1985 Act to demonstrate notice (actual or constructive) of the actual defect giving rise to the injury.  The question the judge should have asked himself was whether, in the light of the findings of fact which he had made, the first defendant had, by his failure to service the gas fire regularly or at all, or otherwise to take steps to check or make appropriate enquiries of the tenant as to the servicing and/or state of the gas fire during the eight-year period before the claimant’s accident, failed in his duty to take such care as was reasonable in all the circumstances to see that the claimant was reasonably safe from injury.  Had the judge approached the matter on that broad basis, it seems to me that the answer would have been plain.  For this purpose I simply refer back to the passages of the judgment quoted at paragraphs 7 and 11 above.  The judge expressly found that the first defendant, by reason of his earlier experience with the fire, his knowledge of the importance of regular servicing and of the risk of the development of defects if it did not take place, his knowledge that the fire had never been serviced, and the fact that he did not expect it to be serviced by the tenants, was ‘put on enquiry that there was a real risk that these defects had occurred’.  Accordingly, by failing to repair or keep in working order the gas fire over a substantial period prior to the date of the claimant’s injury, and by his failure to service or inspect or make enquiry of the tenant as to the state of the gas fire in the light of his knowledge that the tenant was not having it serviced, the first defendant was in breach of his duty under s4 of the 1972 Act.  
CONTRIBUTORY NEGLIGENCE
24.	The judge made clear in the course of his judgment that, had he found the first defendant liable, he would have assessed contributory negligence at 80%.  His reasons were that:
 “The Plaintiffs had the same knowledge as the Defendant of the desirability of servicing.  Furthermore they were seeing and using the gas fire every day.  Furthermore there were patent defects of which they knew and of which the defendant did not, namely the gap and possibly the yellow and inadequate flame.  They may well also have experienced symptoms.  It was open to them at any time to request the defendant to arrange for servicing, and to draw his attention to the existence of the yellow flames, which Mrs Sykes said she knew to be a sign of a defect, and which I have found they did not tell Mr Harry of.  In the event of the defendant being found liable, I would find that by far the major cause of the injury was the contributory negligence of the plaintiffs.”
25.	The historic rationale of the rule excluding a landlord for liability for defects in premises let to a tenant was grounded in the fairly obvious proposition that, at least in relation to defects which become patent during the period of the lease, it is the tenant who is in occupation and immediate control of the premises and therefore in the best position either to effect the necessary repairs or to bring them to the attention of the landlord in any case where the burden of repair lies upon him.  That proposition plainly remains a valid one, despite the introduction of the parallel and potentially more onerous statutory duty created by the 1972 Act in respect of repairs which come within the terms of the landlord’s repairing obligations under the lease.  
26.	This was an unusual case.  It is plain from the judgment that there were substantial issues of credit as between the claimant and his wife on the one hand and the first defendant on the other.  There were a number of respects in which the judge rejected the evidence of the plaintiff and his wife, having explored what was both a curious and uneasy relationship between landlord and tenant.  The language of his judgment quoted in paragraph 24 above makes clear the basis upon which he considered that the level of contributory negligence was as high as 80%.  Despite the submissions of Mr Partington that the judge’s assessment of contributory negligence was unduly high, he has not persuaded me that it was obviously wrong and, for my part, I would not disturb it.
ADDITIONAL EVIDENCE
27.	Following the indication given by this court that it would afford the first defendant an opportunity to direct the attention of the court to any documents which contained medical evidence as to the cause of the claimant’s asphyxiation and which had been wrongly overlooked, the first defendant wrote to the Civil Appeals Office on 4 December 2000.  He said that he had written a letter to the claimant’s solicitors seeking their assistance and a good deal of further information in this respect.  He also sought evidence in respect of a suggestion which he had previously made in a document headed ‘DRAFT SKELETON ARGUMENTS’ which he placed with the papers prior to the appeal, in which he suggested that the claimant could have been asphyxiated by cyanide crystals, and which contained other far-fetched suggestions as to possible alternative causes for the appellant’s asphyxiation.  The appellant has placed no material before us to substantiate these suggestions.  In his letter of 4 December, he stated that he had compiled a small bundle of medical evidence from the time of the alleged incident (none of which was forwarded to the court) and that he intended to obtain a medical opinion on it so that his situation could be properly stated.  
28.	Even if there were any substance in the suggestions of the first defendant (and at present there appears to be none), his efforts to have the judgment below upheld on additional grounds relating to causation are by now far too late.  However, there is a far more substantial objection than that of delay.  It is that the trial below was conducted throughout on the basis of the amended defence of the first defendant which contained an express admission of the allegation in the amended statement of claim that:
 “On 4th February 1994, the plaintiff was overcome by carbon monoxide gas emitted from the fire.”
That being so, it is not open to the first defendant now to contend otherwise.  
CONCLUSION
29.	I would allow the appeal, and set aside the judgment and order of Judge Altman dated 28th May 1999, substituting therefor an order that judgment be entered for the claimant for damages to be assessed and paid on the basis of 20% of full liability.

Dame Elizabeth Butler-Sloss, P.:
30.	I agree.
Lady Justice Hale:
31.	I also agree.

Order: Sykes: Appeal allowed; judgment and order of judge Altman of 28th May 1999, set aside judgment entered for the claimant for damages to be assessed and paid on the basis of 20% liability; costs here and below to be paid by the estate of Dereck Harry; application for permission to appeal to House of Lords refused.
(Order does not form part of the approved judgment)