AMITY UNIVERSITY RAJASTHAN

AMITY LAW SCHOOL

Law of Contract- I

CASE PRESENTATION

Liverpool City Council v Irwin

Date: 20/11/2020

Submitted to: Submitted by:

Prof. Dr. Sonali bhatnagar Alark Achintya

Professor
Legal English EnrollmentNo.A21511120005
ALS - AUR B.A., LL.B. (Hons.)
1st Semester.
 AMITY UNIVERSITY RAJASTHAN

Facts: -

The case concerned a tower block in Liverpool occupied by about 70 tenants, two of which were
the defendants in the proceedings – husband and wife (occupying a maisonette comprising the
ninth and tenth floors). Access to the maisonette was via a common staircase and a lift. The
tower block however was in a very bad state of repair and many of the problems in the building
were due to acts of vandalism; often, the lifts were inoperative and the staircases had no lighting.

The defendants tenancy agreement was a simple one with obligations imposed upon them;
conversely, there were no express obligations contained therein on the part of Liverpool City
Council.

In 1973 however, the defendants, including other tenants in the block effectively conducted a
‘rent-strike’ and stopped paying rent. Consequently, Liverpool City Council commenced legal
proceedings for possession of the premises. The defendants however, counterclaimed in damages
for breach of the statutory implied term under s.32 of the Housing Act 1961; for breach of the
covenant for quiet enjoyment on the part of Liverpool City Council and breach of a covenant
implied at common law to keep the common parts of the tower block in repair. The defendants
also sought an injunction to restrain Liverpool City Council from entering into possession of the
premises.

The trial of the matter was heard at first instance before Liverpool County Court and the judge
found in favour of Liverpool City Council by ordering possession of the premises although he
gave £10 to the defendants as nominal damages on their counterclaim. The judge also held that
there was an implied covenant at common law by Liverpool City Council as aforesaid and a
breach of s.32 of the 1961 Act.

Liverpool City Council accordingly appealed to the Court of Appeal and by majority, their
appeal was allowed against the counterclaim. The Court of Appeal however ruled by majority
that there no implied covenant at common law to repair the common parts; furthermore, that
whereas there was a statutory implied term under the Housing Act 1961, there was no evidence
that Liverpool City Council had breached it. It should be noted that counsel for the defendants
did not pursue the point in relation to the breach of the covenant of quiet enjoyment (neither was
it pursued on further appeal).

The defendants then appealed to the House of Lords.

Issues: -

LCC denied the existence of a duty because there was no formal written tenancy
agreement in place containing a term regarding a duty to maintain the common
parts. As there was only a document detailing the obligations of the tenants
under the agreement, LCC contended there were no obligations incumbent upon
them in relation to the common parts. The Irwins argued that where a tenancy
agreement is silent as to the maintenance of the common parts of a multi
storey tower block, there is an implied term that the landlord should maintain
them. The tenants argued the contract would be wholly unreasonable without
such a term and, therefore, the duty should be implied into the tenancy
agreement.

.Operative Judgment:

Lord Denning MR dissented from Roskill LJ and Ormrod LJ and argued that a contractual term
can be implied when it is ‘reasonable’. After The Moorcock, Reigate and Shirlaw, he mentioned
the ‘stacks’ of cases where terms are implied.

At one time the district of Everton in Liverpool was a slum. The houses were said
to be unfit for human habitation. So the city council demolished them and built
three tower blocks instead. That was in 1966. But within 18 months the conditions
there became so bad that, by all accounts, these tower blocks were not fit for
human habitation. They became known locally as "The Piggeries." The council
have done their best to make them fit, but with little success. It would seem now
that these tower blocks ought to be demolished, just as some have been in the
United States. The situation comes to our notice because the tenants are claiming
damages from the council. They say that the council are in breach of the implied
terms of the tenancies: and ought to recompense them for the appalling conditions
in which they live.

What are these conditions? Much of it is due to hooligans and vandals. These
tower blocks are 15 storeys high. Each houses 70 families. The tower blocks are
not divided into flats, but into maisonettes. These were thought to be suitable for
couples with young children. Each family has its own maisonette on two floors
with an inside staircase. Each has three bedrooms along with sitting-room,
kitchen, bathroom and an outside balcony. Each has its own front door opening on
to a public landing. There are two lifts to serve the 15 storeys and there is a
staircase open to all of them. There is a rubbish chute going the whole height of
the building. On each public landing there is a little door through which tenants
can push their rubbish into the chute, whence it should fall and be collected at the
bottom. There is a resident caretaker always on duty.

No doubt the designers of these tower blocks were very proud of them when they
were built. But let me tell what has happened in practice.

First, the lifts were continually out of action. Either one or other of them, and
sometimes both of them together. The council housing officer said:
 "Lifts are permanently vandalised. Buttons ripped off
operating panels. Lights in lifts smashed. Regularly
used as public conveniences."

When the lifts are not working, people have to go up or down the staircase; but
vandals constantly take out the electric light bulbs so that the staircase is very
dark. The council housing officer said:

"Lighting on staircase virtually non-existent through

vandalism. Lights ripped off walls. We have tried
everything."

The judge himself visited the block and put his own experiences on record:

"... I travelled to the ninth floor by lift. Half an

hour later no lift was operating and I had to return
to the ground floor by using the staircase: throughout
the whole of its length there was no light. ... It was
still daylight outside, but down the stairs it was
very dark. We had to negotiate about 90 to 100
steps ... by holding on to the handrail, [counsel and
then I] succeeded in negotiating them ... but I heaved
a very great sigh of relief when I finally did reach
the ground level. How on earth a woman with two or
three small children and possibly laden with shopping
baskets could be expected to negotiate those stairs
with any degree of peace of mind baffles me: and it is
not to be forgotten that these premises are provided
for the use, not of single persons or of married
couples without children, but they are family houses."

It is fair to point out that on those two lifts £14,024 had been spent in 18 months
on repairs and getting the lifts to work: whilst the total rent roll of the premises is
only about £15,000 a year. When you think of the initial capital cost and annual
outlay on lifts, repairs, maintenance, caretaker and so forth, the loss must be
colossal.

Second, the rubbish chute frequently becomes blocked. It is about 18 inches

square. The tenants throw all sorts of things down it. Anything they want to get
rid of, such as rolls of lino and T.V. frames; and on one occasion a flock mattress,
as well as the day-to-day rubbish. The tenants are told that "all vegetables or other
refuse likely to cause a nuisance shall be burnt," but there are no facilities for
burning them in the maisonettes. In order to clear the blockages, the council have
made holes in the walls so as to get rods in to clear the chute. These holes are then
refilled with concrete, but before the concrete gets hard, someone or other pokes
out the concrete so as to keep the holes open. This meant that there were
unguarded apertures on each floor which would cause anxiety for families with
young children.

Third, playground, etc. Within 18 months the play facilities had been gutted or
rendered unusable; the play leader had been withdrawn because of hooligans and
vandalism. They were used as a dumping ground. The drying rooms were not
used by the tenants because of stealing. They were used for dumping rubbish.

Fourth, the lavatory cisterns often overflow. They were placed in an unsuitable
position. The water is carried by the overflow pipe and runs onto the balcony
below and floods that dwelling. There is standing water in the passages. The
tenants try to stop it by bending the arm of the ballcock: but that means that the
cistern only half fills and the lavatory does not flush properly. So the sanitation is
bad. If one of the maisonettes happens to be unoccupied, vandals break in and
steal part of the water system, thus precipitating a deluge in the dwelling below.
The judge said that this dwelling "although on the ninth floor, suffered
substantially from damp. I myself saw evidence of this." Owing to the damp,
electric fittings have come away from the ceiling and become dangerous.

Fifth. On several occasions water supply for both drinking and sanitation had
failed - for as long as a weekend on some occasions.

The judge summed up the position in these words:

"I was appalled by the general condition of the

property and it astonished me that a city such as
Liverpool could expect that tenants would live in and
put up with conditions such as I saw. ... I ought to
draw attention to the fact that there was a
considerable number of unoccupied properties in this
block of buildings which were apparently protected
only by having corrugated sheet iron put over the
windows ... what a depressing appearance. ..."

Such being the general picture, I turn to the particular facts of this case. Mr. Irwin
is a crane driver. He went into this property on July 11, 1966, eight years ago,
when it was new. He was in maisonette No. 50 on the ninth floor. He was only
paying a very low rent - £3 1s. 10d. a week, inclusive of rates. He was issued with
a form headed "Conditions of Tenancy." It contained all sorts of things which the
tenant was to do, or not to do. There were long paragraphs headed: "The tenant
shall not" and "The tenant shall." But there was not a single word as to anything
the council was to do or not to do.

After eight years, by way of protest, Mr. Irwin and his wife stopped paying the
rent. The council took proceedings for possession and got an order. The tenants
counterclaimed for damages (a) for breach of the covenant for quiet enjoyment
and (b) for breach of duty to repair. The judge found in their favour and awarded
nominal damages of £10. The council appeal to this court.

We are told that this is a test case. If that decision of the judge is right, I can well
see that all the tenants will make claims for the gross discomfort and
inconvenience which they suffer. They will not recover merely nominal damages.
They will recover high damages which will offset their rents for years to come.
The rent of this dwelling - £3 a week for a crane driver - was small indeed. There
should be a limit to what he can claim for it. Collectively all the tenants must bear
some responsibility for the appalling conditions. Singly they ought not to be able
to claim damages for it, at any rate, not if the city council do the best they can
with the resources available to them. But still, we must consider the legal position.

Covenant for quiet enjoyment

Mr. Godfrey for the tenants conceded that there was no breach by the landlords of
the implied covenant for quiet enjoyment. He was quite right to make that
concession. That covenant extends, I think, so as to protect the tenant in his
possession and enjoyment of the demised premises from any invasion or
interruption or disturbance of it by the landlord or those claiming through him:
Browne v Flower [1911] 1 Ch 219: Kenny v Preen [1963] 1 QB 499. But here
there was nothing done by the landlord which amounted to an invasion,
interruption or disturbance of the tenant. Failure to repair the demised premises,
or the common parts, cannot be said to be a breach of the covenant for quiet
enjoyment. Obligation to repair the maisonette itself

The council were not under any duty at common law to repair the maisonette
itself. But they were under a statutory duty by section 32 (1) of the Housing Act
1961, which says that there is an implied covenant by the lessor:

"(a) to keep in repair the structure and exterior of

the dwelling house (including drains, gutters and
external pipes); and (b) to keep in repair and proper
working order the installations in the dwelling house
- (i) for the supply of water, gas and electricity,
and for sanitation (including basins, sinks, baths and
sanitary conveniences but not, except as aforesaid,
fixtures, fittings and appliances for making use of
the supply of water, gas or electricity); and (ii) for
space heating or heating water."

There is no evidence of any failure by the council to repair the structures or

exterior: nor do I see any failure in respect of the installations for water, gas or
electricity. The trouble was due to the design of the building itself. If a hot water
system is inefficient owing to unsuitable design - for example, if the tank is too
small - the landlord is not bound to alter it. His only duty is to keep the existing
system, inefficient as it is, in proper working order. He is not bound to put in a
new efficient system. So here, the lavatory cisterns gave trouble because the
whole system was unsuitably designed. The council were bound to keep the
existing system, inefficient as it was, in proper working order: but they were not
bound to instal a new system. Obligation to repair the lifts, staircases, etc.

The lifts, staircases, and so forth, were not let to the tenants. The council kept
them in their own control. The question arises: were they under any contractual
duty to the tenant to keep them in repair?

So far as the law of tort is concerned, there was at one time some uncertainty
owing to the distinction drawn between invitees and licensees. But since 1957, it
is clear that the council were under a duty of care - the common duty of care -
which they owed to all the visitors, tenants, wives, children, tradesmen, guests
and all. If any of these is injured by any breach of that duty, he or she can recover
damages from the council. This duty is imposed by the Occupiers' Liability Act
1957. It is to take "such care as in all the circumstances of the case is reasonable
to see that the visitor will be reasonably safe in using the premises." It is
concerned with safety, not with comfort or convenience. A visitor, be he tenant or
anyone else, can claim damages if he falls down and is injured: but not for
walking up and down 200 steps.

So far as the tenant himself is concerned, the question is whether the city council
were under a contractual duty to him; and, if so, what was the extent of it. There
was no express term. Was there an implied term?

It is often said that the courts only imply a term in a contract when it is reasonable
and necessary to do so in order to give business efficacy to the transaction: see
The Moorcock (1889) 14 PD 64, 68. (Emphasis is put on the word "necessary":
Reigate v Union Manufacturing Co (Ramsbottom) Ltd [1918] 1 KB 592, 605.) Or
when it is obvious that both parties must have intended it: so obvious indeed that
if an officious bystander had asked them whether there was to be such a term,
both would have suppressed it testily: "Yes, of course": see Shirlaw v Southern
Foundries (1926) Ltd [1939] 2 KB 206, 227.

Those expressions have been repeated so often that it is with some trepidation that
I venture to question them. I do so because they do not truly represent the way in
which the courts act. Let me take some instances. There are stacks of them. Such
as the terms implied by the courts into a contract for the sale of goods - Jones v
Just (1868) LR 3 QB 197: or the hire of goods - Asley Industrial Trust Ltd v
Grimley [1963] 1 WLR 584: into a contract for work and materials - Young &
Marten Ltd v McManus Childs Ltd [1969] 1 AC 454: or into a contract for letting
an unfurnished house - Hart v Windsor (1843) 12 M & W 68: or a furnished
house - Collins v Hopkins [1923] 2 KB 617: or into the carriage of a passenger by
railway: see Readhead v Midland Railway Co (1869) LR 4 QB 379 : or to enter
on premises: see Francis v Cockrell (1870) LR 5 QB 501 : or to buy a house in
course of erection: see Hancock v BW Brazier (Anerley) Ltd [1966] 1 WLR 1317.

If you read the discussion in those cases, you will see that in none of them did the
court ask: what did both parties intend? If asked, each party would have said he
never gave it a thought: or the one would have intended something different from
the other. Nor did the court ask: Is it necessary to give business efficacy to the
transaction? If asked, the answer would have been: "It is reasonable, but it is not
necessary." The judgments in all those cases show that the courts implied a term
according to whether or not it was reasonable in all the circumstances to do so.
Very often it was conceded that there was some implied term. The only question
was: "What was the extent of it?" Such as, was it an absolute warranty of fitness,
or only a promise to use reasonable care? That cannot be solved by inquiring what
they both intended, or into what was necessary. But only into what was
reasonable. This is to be decided as matter of law, not as matter of fact. Lord
Wright pulled the blinkers off our eyes when he said in 1935 to the Holdsworth
Club:

"The truth is that the court .... decides this

question in accordance with what seems to be just or
reasonable in its eyes. The judge finds in himself the
criterion of what is reasonable. The court is in this
sense making a contract for the parties - though it is
almost blasphemy to say so." (Lord Wright of Durley,
Legal Essays and Addresses (1939), p259.)

In 1956, Lord Radcliffe put it elegantly when he said of the parties to an implied
term:

"their actual persons should be allowed to rest in

peace. In their place there rises the figure of the
fair and reasonable man. and the spokesman of the fair
and reasonable man, who represents after all no more
than the anthropomorphic conception of justice, is and
must be the court itself": see Davis Contractors Ltd v
Fareham Urban District Council [1956] AC 696, 728.

In 1969, Lord Reid put it simply when he said: "... no warranty ought to be
implied in a contract unless it is in all the circumstances reasonable," see Young &
Marten Ltd v McManus Childs Ltd [1969] 1 AC 454, 465: and Lord Upjohn
echoed it when he said, at p471, that the implied warranty was "imposed by law."

Is there a term to be implied in this tenancy about the lifts and staircases and other
common parts? Mr. Francis said there was no contractual obligation on the
landlord at all. He repeated the old clichés about "necessary to give business
efficacy" and the "officious bystander," and said there was no term to be implied
at all.

He likened this to a lease of premises in which there is no implied covenant by the

landlord to keep the demised premises in repair: or to the lease of a party wall in
which there is no implied covenant to keep the party wall in repair: see Colebeck
v Girdlers Co (1876) 1 QBD 234 . But in those cases the landlord did not retain
occupation or control. Such cases have no application to blocks of flats when the
landlord himself retains occupation and control of the roof, lifts, staircase, and so
forth. No one has ever doubted that the landlord is under an implied contractual
obligation to the tenant in respect of those common parts. The only question has
been as to the extent of the obligation. In Miller v Hancock [1893] 2 QB 177 the
court were referred to Colebeck v Girdlers Co, but quite rightly treated is as of no
relevance. Both Lord Esher MR and Bowen LJ said that the landlord was under
an absolute obligation to maintain the staircase. Bowen LJ said, at p181:

"It seems to me that it would render the whole

transaction inefficacious and absurd if an implied
undertaking were not assumed on the part of the
landlord to maintain the staircase so far as might be
necessary for the reasonable enjoyment of the demised
premises."

Later cases have shown, however, that it is not an absolute obligation: see
Cockburn v Smith [1924] 2 KB 119, 133, by Scrutton LJ But it is certainly an
implied obligation to use reasonable care. It was distinctly so held by Lush J. in
Dunster v Hollis [1918] 2 KB 795 , and his ruling has never been doubted since. It
has been accepted by all the textwriters and by the Law Commission [Report on
Obligations of Landlords and Tenants (Law Com. No. 67)], paragraph 114 (c). In
the latest edition of Woodfall, Landlord and Tenant, 27th ed. (1968), p. 657, it is
stated thus:

"Where the lessor retains in his possession and

control something ancillary to the premises demised,
such as a roof or staircase, the maintenance of which
in proper repair is necessary for the protection of
the demised premises or the safe enjoyment of them by
the tenant, the lessor is under an obligation to take
reasonable care that the premises retained in his
occupation are not in such a condition as to cause
damage to the tenant or to the premises demised."

That proposition has been accepted for nearly 60 years: and I am surprised to hear
it now said that the landlord is under no contractual obligation to the tenant at all.
Seeing it so plainly existed before 1957, I do not think that the Occupiers'
Liability Act 1957 (which cleared up the law of tort) took away this contractual
obligation.

The only question to my mind is the extent of the obligation. Is it confined to

safety from personal injury? Or does it extend to fitness for use? To my mind it is
the obligation of the landlord to take reasonable care, not only to keep the lifts and
staircase reasonably safe, but also to keep them reasonably fit for use by the
tenant and his family, and visitors. Suppose the lifts fall out of repair and break
down. Can the landlord say to the tenant: "It is not my obligation to repair the
lifts. You must repair them yourselves or walk up and down the 200 steps. It's up
to you." If the electric light bulbs blow out on the staircase, can the landlord say:
"I am not going to replace them, now or at any time. You must go up and down in
the dark as best you can." Mr. Francis suggested that so long as nobody suffers
personal injury, no one can complain. Not even the tenants. But that as soon as
someone does suffer personal injury, he can bring an action for damages under the
Occupiers' Liability Act 1957. I cannot accept this suggestion. It is clearly the
duty of the landlord, not only to take care to keep the lifts and staircase safe, but
also to take care to keep them reasonably fit for the use of the tenant and his
visitors. If the lifts break down, the landlord ought to repair them. If the lights on
the staircase fail, the landlord ought to replace them.

I am confirmed in this view by the fact that the Law Commission, in their
codification of the law of landlord and tenant, recommend that some such term
should be implied by statute: see Law Com. No. 67, paragraphs 148-149 and draft
clause 16, p. 86. But I do not think we need wait for a statute. We are well able to
imply it now in the same way as judges have implied terms for centuries. Some
people seem to think that now that there is a Law Commission the judges should
leave it to them to put right any defect and to make any new development. The
judges must no longer play a constructive role. They must be automatons
applying the existing rules. Just think what this means. The law must stand still
until the Law Commission have reported and Parliament passed a statute on it:
and, meanwhile, every litigant must have his case decided by the dead hand of the
past. I decline to reduce the judges to such a sterile role. They should develop the
law, case by case, as they have done in the past: so that the litigants before them
can have their differences decided by the law as it should be and is, and not by the
law of the past. So I hold here that there is clearly to be implied for the common
parts some such term as the Law Commission recommend. The landlord must
take reasonable care to keep the lifts, staircase, etc. safe and fit for use by the
tenants and their families and visitors.

Such being the obligation, the remaining question is whether there was any
evidence of a breach of it? On the pleadings the tenants did not allege negligence.
They only alleged an absolute warranty. There was, accordingly, no inquiry into
negligence. There were two fundamental causes of the trouble. First, the very
design of these tower blocks. Second, the vandals and hooligans. For neither of
these is the City council responsible. The council did their best to cope with these
 troubles: but, despite their best endeavours, they failed. They have been beaten by
the vandals and hooligans. They were not in breach of their duty to use reasonable
care.

It is to be remembered, too, that these tower blocks are occupied by council

tenants at very low rents. They are allowed, in practice, virtual security of tenure
so long as they pay their rent. If they were to recover damages for the discomfort
and inconvenience they have suffered, the amount of such damages could be
offset against their rents: and they would be able to stay in the flats for years
without paying anything. That does not seem to me to be right, especially when
they are all, in a sense, responsible for the deplorable state of affairs. There is no
evidence that it is the tenants themselves or their families who actually do the
wicked damage. But collectively the tenants could do much to improve the
situation. They should do their part in disciplining these youngsters. Other tower
blocks a few streets away do not suffer these troubles. Nor should these. In the
circumstances I would not award the tenants any damages.

I would allow the appeal and give judgment for the city council

Decision and Reasons: -

The House of Lords held that there was an implied term that the landlord should take care of the
common parts of a building. This duty was implied on the basis that it was necessary to do so.
But on the facts it was not breached because the council was not responsible for the damage
done. The tenants also had a duty of reasonable care, and so they were not entitled to withhold
rent on the facts.

Lord Wilberforce held it was a necessary term of living on an estate that landlords keep
stairwells in order. However tenants also had a duty of reasonable care and on the facts the
council was not in breach of its obligations. Applying the business efficacy or the officious
bystander test would not result in the term’s implication, but asking what the relationship
required would.

To say that the construction of a complete contract out of these elements involves
a process of "implication" may be correct: it would be so if implication means the
supplying of what it not expressed. But there are varieties of implications which
the courts think fit to make and they do not necessarily involve the same process.
Where there is, on the face of it, a complete, bilateral contract, the courts are
sometimes willing to add terms to it, as implied terms: this is very common in
mercantile contracts where there is an established usage: in that case the courts
are spelling out what both parties know and would, if asked, unhesitatingly agree
to be part of the bargain. In other cases, where there is an apparently complete
bargain, the courts are willing to add a term on the ground that without it the
contract will not work—this is the case, if not of The Moorcock itself on its facts,
at least of the doctrine of The Moorcock as usually applied. This is, as was
pointed out by the majority in the Court of Appeal, a strict test—though the
degree of strictness seems to vary with the current legal trend, and I think that
they were right not to accept it as applicable here. There is a third variety of
implication, that which I think Lord Denning MR favours, or at least did favour in
this case, and that is the implication of reasonable terms. But though I agree with
many of his instances, which in fact fall under one or other of the preceding
heads, I cannot go so far as to endorse his principle: indeed, it seems to me, with
respect, to extend a long, and undesirable, way beyond sound authority.

The present case, in my opinion, represents a fourth category, or I would rather

say a fourth shade on a continuous spectrum. The court here is simply concerned
to establish what the contract is, the parties not having themselves fully stated the
terms. In this sense the court is searching for what must be implied.

What then should this contract be held to be? There must first be implied a letting,
i.e., a grant of the right of exclusive possession to the tenants. With this there
must, I would suppose, be implied a covenant for quiet enjoyment, as a necessary
incident of the letting. The difficulty begins when we consider the common parts.
We start with the fact that the demise is useless unless access is obtained by the
staircase: we can add that, having regard to the height of the block, and the family
nature of the dwellings, the demise would be useless without a lift service: we can
continue that there being rubbish chutes built in to the structures and no other
means of disposing of light rubbish there must be a right to use the chutes. The
question to be answered—and it is the only question in this case—is what is to be
the legal relationship between landlord and tenant as regards these matters.

There can be no doubt that there must be implied (i) an easement for the tenants
and their licensees to use the stairs, (ii) a right in the nature of an easement to use
the lifts, (iii) an easement to use the rubbish chutes.

But are these easements to be accompanied by any obligation upon the landlord,
and what obligation? There seem to be two alternatives. The first, for which the
council contends, is for an easement coupled with no legal obligation, except such
as may arise under the Occupiers' Liability Act 1957 as regards the safety of those
using the facilities, and possibly such other liability as might exist under the
ordinary law of tort. The alternative is for easements coupled with some
obligation on the part of the landlords as regards the maintenance of the subject of
them, so that they are available for use.

My Lords, in order to be able to choose between these, it is necessary to define

what test is to be applied, and I do not find this difficult. In my opinion such
obligation should be read into the contract as the nature of the contract itself
 implicitly requires, no more, no less: a test in other words of necessity. The
relationship accepted by the Corporation is that of landlord and tenant: the tenant
accepts obligations accordingly, in relation inter alia to the stairs, the lifts and the
chutes. All these are not just facilities, or conveniences provided at discretion:
they are essentials of the tenancy without which life in the dwellings, as a tenant,
is not possible. To leave the landlord free of contractual obligation as regards
these matters, and subject only to administrative or political pressure, is, in my
opinion, inconsistent totally with the nature of this relationship. The subject
matter of the lease (high-rise blocks) and the relationship created by the tenancy
demands, of its nature, some contractual obligation on the landlord.

[...]

It remains to define the standard. My Lords, if, as I think, the test of the existence
of the term is necessity the standard must surely not exceed what is necessary
having regard to the circumstances. To imply an absolute obligation to repair
would go beyond what is a necessary legal incident and would indeed be
unreasonable. An obligation to take reasonable care to keep in reasonable repair
and usability is what fits the requirements of the case. Such a definition involves
—and I think rightly—recognition that the tenants themselves have their
responsibilities. What it is reasonable to expect of a landlord has a clear relation
to what a reasonable set of tenants should do for themselves.

Lord Cross' judgment went as follows.

My Lords, I have had the advantage of reading the speeches of my noble and
learned friends Lord Wilberforce, Lord Salmon and Lord Edmund-Davies. I agree
with them that on the main point - the liability of the respondent council to pay
damages to the appellants for failure to keep the staircases and chutes in repair
and the lifts in working order - this appeal should be dismissed, but that it should
be allowed so far as concerns the claim under section 32 of the Housing Act 1961
relating to the lavatory cistern inside the maisonette. I do not wish to add anything
with regard to the latter claim, but in view of its general importance and because I
am - with respect to him - unable to agree with a passage in the judgment of Lord
Denning MR I will add a few words of my own on the main point.

When it implies a term in a contract the court is sometimes laying down a general
rule that in all contracts of a certain type - sale of goods, master and servant,
landlord and tenant and so on - some provision is to be implied unless the parties
have expressly excluded it. In deciding whether or not to lay down such a prima
facie rule the court will naturally ask itself whether in the general run of such
cases the term in question would be one which it would be reasonable to insert.
Sometimes, however, there is no question of laying down any prima facie rule
applicable to all cases of a defined type but what the court is being in effect asked
to do is to rectify a particular - often a very detailed - contract by inserting in it a
term which the parties have not expressed. Here it is not enough for the court to
say that the suggested term is a reasonable one the presence of which would make
the contract a better or fairer one; it must be able to say that the insertion of the
term is necessary to give - as it is put -'business efficacy' to the contract and that if
its absence had been pointed out at the time both parties - assuming them to have
been reasonable men - would have agreed without hesitation to its insertion. The
distinction between the two types of case was pointed out by Viscount Simonds
and Lord Tucker in their speeches in Lister v Romford Ice and Cold Storage Co
Ltd [1957] AC 555, 579, 594, but I think that Lord Denning MR in proceeding -
albeit with some trepidation - to 'kill off' MacKinnon LJ's 'officious bystander'
(Shirlaw v Southern Foundries (1926) Ltd [1939] 2 KB 206, 227) must have
overlooked it. Counsel for the appellant did not in fact rely on this passage in the
speech of Lord Denning. His main argument was that when a landlord lets a
number of flats or offices to a number of different tenants giving all of them rights
to use the staircases, corridors and lifts there is to be implied, in the absence of
any provision to the contrary, an obligation on the landlord to keep the 'common
parts' in repair and the lifts in working order. But, for good measure, he also
submitted that he could succeed on the 'officious bystander' test.

I have no hesitation in rejecting this alternative submission. We are not here

dealing with an ordinary commercial contract by which a property company is
letting one of its flats for profit. The respondent council is a public body charged
by law with the duty of providing housing for members of the public selected
because of their need for it at rents which are subsidised by the general body of
ratepayers. Moreover the officials in the council's housing department would
know very well that some of the tenants in any given block might subject the
chutes and lifts to rough treatment and that there was an ever present danger of
deliberate damage by young 'vandals' - some of whom might in fact be children of
the tenants in that or neighbouring blocks. In these circumstances, if at the time
when the respondents were granted their tenancy one of them had said to the
council's representative: 'I suppose that the council will be under a legal liability
to us to keep the chutes and the lifts in working order and the staircases properly
lighted,' the answer might well have been - indeed I think, as Roskill LJ thought
[1976] QB 319, 338, in all probability would have been - 'Certainly not.' The
official might have added in explanation- 'Of course we do not expect our tenants
to keep them in repair themselves - though we do expect them to use them with
care and to co-operate in combating vandalism. The council is a responsible body
conscious of its duty both to its tenants and to the general body of ratepayers and
we will always do our best in what may be difficult circumstances to keep the
staircases lighted and the lifts and chutes working, but we cannot be expected to
subject ourselves to a liability to be sued by any tenant for defects which may be
directly or indirectly due to the negligence of some of the other tenants in the very
block in question.' Some people might think that it would have been, on balance,
wrong for the council to adopt such an attitude, but no one could possibly
describe such an attitude as irrational or perverse.