05 NOV 2015
Mark Pollock v Edna Cahill and Madeline Cahill  EWHC 2260 (QB)
Occupiers’ Liability – Duty to Vulnerable
High Court, Queen’s Bench Division: William
30 July 2015
The claimant, who was blind at the time of the
accident, fell from an open second floor window at the home of the defendants.
The court held they were satisfied that his injuries were caused by a breach of
duty and that the defendants ought to have appreciated the risk and taken steps
to prevent it occurring.
The claimant was totally blind with no light
perception at the time of the accident. He was staying with friends in a house
he had visited previously. Large portions of the case considered who opened the
window and to what extent. Witness evidence was poor regarding the state of the
window before the accident and the judge was critical of the second defendant
for tampering with the window and taking photographs of an alleged
reconstruction that had little basis in fact.
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On the evidence the court concluded that Mrs Cahill opened the window as she let slip a comment about opening the window when she was making up the room. The court considered that on his evidence Mr Murphy (who was sharing a room with the claimant) did not open the window as his witness statement was in clear terms and his postulations that he may have done so did not amount to an admission.
In addition, Mrs Cahill had mentioned at the hospital to two further witnesses that she had considered whether or not to open the window because of the claimant being blind but concluded due to the heat on balance it was best for it to be open.
The court also drew adverse inferences in relation to the defendants as on the evidence the window from which the claimant fell was closed in the early hours of 3 July 2010. The court concluded that either one or both of the defendants had given misleading evidence as there was opportunity to explain why the window had been closed but the Cahills chose not to explain why.
Finally, the court considered other explanations as to why the claimant fell that did not stem from the defendant’s breach of duty. The court relied on Lord Brandon’s speech in The Popi M  1 WLR 948 and concluded that as the alternative scenarios were not genuine possibilities this line of argument by the defendants must fail.
This was an unusual case, reminding defendants they must take the claimant as they find them when it comes to foreseeability of risk.
Summarised by Sandra de Souza and Amy Wedgwood, Anthony Gold Solicitors