Occupiers' Liability - Pollock v Cahill (High Court)

In this well publicised case, it was found that a blind visitor’s fall from an open bedroom window had been due to the occupiers’ breach of their duty.

The duty of care under s2 of the Occupiers’ Liability Act requires occupiers to have regard to any known vulnerability of the visitor. Although the window was not dangerous per se, it did create an obvious risk for a blind man. The Defendants, as occupiers, had underestimated that risk and should have either closed the window or warned the Claimant of its presence and the extent of the drop below.

The Court found that the open window had been a real risk to the Claimant; the occupiers had created that risk; and they ought to have appreciated the risk and taken steps to prevent it, by keeping the window closed or by warning the Claimant about it, with particular reference to the extent of the drop from the window.

To establish liability, the accident must be reasonably foreseeable and the judge had little difficulty dealing with this point. Mrs Cahill not only admitted in evidence that she would not have left a child unattended in the room with the window open, but had also previously stated to Mr Pollock’s fiancée that she had in fact considered the specific risk to Mr Pollock, but ultimately decided to leave the window open due to the warm weather.

Interestingly the Court preferred the Claimant’s own evidence that the fall resulted from his “internal compass” failing in an unfamiliar environment as he made his way to or from the bathroom, to that of the experts. Both experts started with the premise that the window was only slightly ajar. Given that the Judge declared this to be impossible; this evidence was found to be unhelpful. The rejection of complex and unnecessary expert evidence is an emerging trend in the courts, particularly following the Jackson reforms.

Having left the window open in the face of a reasonably foreseeable risk, the Defendants were found liable.

COMMENT:

• The case is an important reminder that occupiers must factor a visitor’s specific vulnerabilities into their  risk assessment

• It also demonstrates that courts are rarely able to base their decisions on clear and accurate factual evidence.  A Claimant must prove his or her case on the balance  of probabilities, and expert evidence is not always  the answer

• Defendants need to be wary of instructing complex and expensive expert evidence unless they genuinely take the case forward

• Would this case have been decided differently if the defendant had been uninsured?