I had visitors staying this weekend. I moved three months ago and they were desperate to see what place had been grand enough to tempt me out of living in the big smoke. They drove for a whole hour and finally arrived safely with wellingtons and flat caps at the ready. I was ready for their oohs and aahs about the location but in the excitement of showing off my duck pond (with real ducks that quack) and the surrounding apple orchards I had kind of forgot about the state of the house.
I have lived there now long enough to learn the idiosyncrasies/death traps the house has to offer. The sharp turn in the staircase means you can only walk on the very edge if you have any hope of keeping your footing (with no handrail to grab if you forget). It only takes one bath to realise the bath itself is a moveable feast. The previous owners improved the ventilation by having random floorboards go missing. There’s so much that I could go on but what I really wanted to tell you about was the low casement window in the top floor. The type that opens out from the bottom. The type which, if left open, can provide an unexpected shortcut to the garden. I fell from one such first-floor window as a child. I was lucky and landed in the veg patch. Mr Pollock, the claimant in Pollock v Cahill  EWHC 2260 (QB) was not so lucky. As soon as I saw that window I thought of this case. It recently returned to the Court of Appeal and made my weekend a bit more jittery than it otherwise would have been.
Mr Pollock is blind and he went to stay with his close friends, the Cahills. There is some confusion over exactly what happened but it is likely that Mrs Cahill left the low, casement window open in Mr Pollock’s bedroom when she was making it up for his arrival. When Mr Pollock got up in the night to use the bathroom he fell from the window and sustained catastrophic brain and spinal injuries, leaving him paralysed from the waist down. In the original decision, it was held that the Cahills were in breach of their duty to him under s2 of the Occupiers Liability Act 1957. The relevant sections are as follows:-
(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)The circumstances relevant for the present purpose 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 held that although the window was not in itself dangerous, such an open window created an obvious danger for a blind person. It was on a second floor and the risk of falling from it was obvious. The judge held the Cahills had failed to discharge their duty of care to Mr Pollock by leaving it open.
The case returned to court last week when the Cahills requested permission to appeal the judge’s finding that they had been in breach of their duty of care to Mr Pollock as a visitor in their home. Permission to appeal was refused. The Cahills have household insurance limited to £2 million public liability. Mr Pollock had already said that he would be limiting the extent of his claim to this £2 million, although his case is worth a lot more. This has to be a nod to the past friendship between Mr Pollock and the Cahills (I do not know the state of their friendship today. The accident happened 6 years ago).
I can only imagine the guilt Mr and Mrs Cahill must feel. My intended guest bedroom is also on the second floor. As a loft room, it is stuffy and I would also have opened the window for the comfort of my guests. My friends are not blind and they do not have any disability which would make them more vulnerable than an average visitor. But I did know that a bottle or two of house-warming wine would be consumed. Would I be in any way responsible for a fall through an open guest bedroom window as a result of my guests’ faculties being impaired by alcohol that I knew would be consumed?
Needless to say, my friends stayed on a blow-up bed in the front room. The said bed deflated during the night and I think it may be a while before they visit again but no matter. It will give me time to replace that window.