February 27, 2014

Occupiers’ Liability - Estate of Cyril Biddick (Deceased) v Mark Morcom (Court of Appeal)

The Court of Appeal found that a homeowner's offer to help fit loft insulation amounted to the adoption of a duty of care, which he was required to discharge carefully, even though the workman had neither relied on his help nor considered it necessary for his safety.

Mr Biddick was an 80 year old homeowner. The claimant, a multi-skilled tradesman, had known the defendant for a long period of time and had undertaken work for him on several occasions. On the day of the accident, the claimant had agreed to fit insulation to the hatch which provided entry into Mr Biddick’s loft.

Although the claimant did not think that he needed any assistance, Mr Biddick indicated that he would stand underneath the loft hatch to prevent the locking mechanism coming unstuck.

However, whilst holding the pole, Mr Biddick received a phone call and went to answer the phone. The claimant overreached himself, applying a degree of force to the hatch door. The hatch door burst open and the claimant fell through to the floor below sustaining serious injury.

The claimant sued in common law/negligence and for breach of the Work at Height Regulations 2005.

The court found that the 2005 Regulation did not apply, but decided that the accident occurred because Mr Biddick, when taking the telephone call, had partially dislodged the locking mechanism and that this was a material cause of the claimant’s accident, and was negligent. Accordingly, he was found to be liable but the claimant’s damages were reduced by 2/3rds for contributory negligence.

As the court noted, had Mr Biddick not chosen to involve himself in the operation, there would have been no basis at all to make any finding of negligence against him, but having voluntarily involved himself, he brought himself into sufficient proximity with the claimant so that it was fair, just

On appeal, the Court of Appeal upheld the finding of liability and of contributory negligence and found that once the defendant had undertaken to ensure that the hatch remained closed, he had a duty to perform that task carefully, even if the claimant did not himself see the Defendant’s role as a necessary one in his own safety.

COMMENT:

  • This case highlights the potential difference in outcome between failing to act and acting in a negligent way. An occupier can go too far to ensure a visitor’s safety. Had the workman been left alone, no liability would have attached to the occupier
  • It was found that the locking mechanism was only partially secure when the workman fell. Had the occupier’s involvement not been related to the cause of the fall, it is not likely that liability would have attached. Causation is therefore still an important factor
  • The Court of Appeal upheld an assessment of 2/3rds contributory negligence, which is encouraging for defendants