A recent decision in the High Court (Mark Pollock v Edna and Madeline Cahill) examines the scope of the duty of care owed by occupiers under the Occupier’s Liability Act 1957 to lawful visitors who have particular vulnerabilities.
The Claimant fell from an open second floor bedroom window at the home of his friends, the Defendants. He sustained severe head and spinal injuries.
Prior to this accident the Claimant was already totally blind. He had no recollection of the incident. The Judge concluded that one of the Defendants had left the window open when making up the bedroom, although neither recalled doing so.
The Defendants argued that there were various scenarios whereby the Claimant could have fallen which did not involve any breach of duty, and that as the Claimant could not disprove those alternative scenarios his claim must fail. However the Judge rejected as improbable the Defendants’ contentions that the Claimant might have been leaning out of the window deliberately and over-balanced, or fell whilst sleepwalking. There was no evidence that the Claimant was prone to sleepwalking.
The Judge concluded that the Claimant probably fell through the open window as he was trying to make his way to the bathroom, having just woken up.
The Judge then had to consider s2 of the Occupier’s Liability Act 1957, the relevant passage of which is:
(2) The common duty of care is a duty 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 for the purposes for which he is invited or permitted by the occupier to be there.
(3) Circumstances relevant for the present purposes include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases:
(a) an occupier must be prepared for children to be less careful than adults; and
(b) an occupier may expect that a person in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so.
The Judge concluded that the reference in paragraph 3 to “such a visitor” requires an occupier to have specific regard to any known vulnerability of the particular visitor in question. Here, had the Claimant been fully sighted, the open window would not have made the premises unsafe. It was the fact that he was blind that made them unsafe. It was no defence that the Defendants claimed not to have appreciated the risk of leaving the window open; they ought to have appreciated the risk and kept the window closed, or at least warned the Claimant about it.
Contributory negligence arguments, on the basis that the Claimant ought to have asked the Defendants about the position of the window, and used his bed as a guide to the door, were rejected. The Claimant succeeded on liability in full.
This is a sad case and it is to the Claimant’s credit that he had limited the value of his claim to £2,000,000, being the limit of indemnity under the Defendants’ insurance policy. It is a reminder that the duty of care owed to a lawful visitor will be higher where that visitor has a particular vulnerability which the occupier is aware of, and which the occupier can reasonably be expected to take steps to guard against.