May 16, 2016

Occupiers’ Liability - Appeal of homeowners who left window open refused by Court of Appeal

Pollock v Cahill [2015] EWHC 2260 (QB)

Permission to appeal has been refused to homeowners who left open a bedroom window, through which a blind visitor fell 25 feet, sustaining severe spinal injuries. The Appellants were seeking to overturn a finding that they had been in breach of their duty of care under s 2 of the Occupiers' Liability Act.

At the original hearing in July 2015, the Court found that the open window had been a real risk to the Claimant, which the Defendants had created, and which they ought to have appreciated.

The application by the Defendants' counsel was on the basis that the finding was against the weight of evidence, arguing that the Judge should have taken account of several factors, namely that the Claimant had previously stayed in the same room, that he was a 'resourceful' man and that, as an 'ordinary domestic occupier' the Defendant who had left the window open would not have appreciated that leaving a window open would have been a danger.

Refusing the Defendants' permission to appeal, Lord Justice Moore-Bick in the Court of Appeal determined that it was 'clearly open to the judge to make the finding he did' in respect of the circumstances surrounding the Claimant's fall.

What the Judge thought were the 'important questions' were as follows:

  1. Was the window left open by the Defendant; and
  2. Did the Defendant foresee the risk of leaving the bedroom window open, to which the Judge had been entitled to answer affirmatively - i.e. that the Defendant had identified some risk.

Although not a particularly revealing case in terms of technical points of law, the case acts as an important reminder that occupiers must factor a visitor’s specific vulnerabilities into their risk assessment and that the courts are unwilling to show leniency if they do not, even when given a second opportunity to do so.

Given that the claim was limited in value to the limit of the Defendants' household insurance, it would be interesting to know whether the case would have been decided differently had the Defendants been uninsured.