On 26th August 2007 the claimant, Miss Jasmine Alexander, was injured when the index finger of her left hand was caught in the front door of the block of flats where she lived. She suffered a traumatic partial amputation of her finger. The building contractor, Christopher Place, had been engaged by the landlord, Freshwater Properties Ltd, to carry out a programme of refurbishment to the building. The refurbishment included the removal, polishing and replacement of the exterior handles on the front door. The landlord is the occupier of the building and was responsible for the upkeep of the common parts, including the front door.

As a result of the accident Miss Alexander brought proceedings against both the landlord and the building contractor alleging breach of duty under the Occupiers’ Liability Act 1957 and negligence.

Section 2(1), (2) and (3) Occupiers Liability Act 1957 reads:

(1) An occupier of premises owes the same duty, the “common duty of care”, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.

(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.

It was her case that the self-closing mechanism fitted to the door was defective and that it was necessary for anyone leaving the building to pull the door shut in order to ensure that the lock engaged properly. Although positioned at knee height, the exterior handle had enabled that to be done safely. The removal of the handle made it necessary to pull the door closed by grasping its edge, taking care to move one’s fingers out of the way before it closed on them. The claimant said that the absence of the handle created a dangerous situation because it gave rise to a risk of precisely the form of injury which she had suffered on the day in question.

It was found that a sign had been put up on the inside of the door which read:

“DEAR FELLOW RESIDENTS AND GUESTS,

PLEASE ALWAYS PULL OUTER DOOR FULLY CLOSED WHEN YOU GO OUT OR IN AND MAKE SURE THE CATCH CLICKS SHUT!

OR WE COULD GET STRANGERS COMI[N]G INTO THE BLOCK.

Thank you.”

First Hearing

At the first hearing, the Recorder found that the accident had occurred because Miss Alexander was more distracted than usual, pulled harder than usual on the edge of the door and misjudged the timing of the removal of her hand as the door closed behind her. He found that the handle had been removed by the builder several weeks before the accident occurred and that the builder had been negligent in allowing the door to remain in that state for so long. In that condition it posed an obvious risk of injury if a resident or anyone else failed to get the timing right when removing his hand from the edge of the door as it swung shut. He also held that the builder should have known from seeing the sign inside the door that the self-closing mechanism was unreliable and that it was reasonably foreseeable that residents would resort to pulling the edge of the door to close it securely.

The Recorder found that the landlord had also been negligent. It had better means than the builder of knowing that the self-closing mechanism was defective. It had been involved in the decision to send the handle away for polishing and should have been aware that it would be, and indeed by the date of the accident had been, missing for several weeks. The Recorder thought that the landlord should have done more to ensure the safety of residents by installing a temporary handle or making sure that the self-closing mechanism worked properly.

On that basis, it was held that both the landlord and the builder were liable to Miss Alexander. As between the two of them the Recorder considered that the builder was more to blame. The turning point, he said, had been the decision to polish and re-fit the handle rather than replace it, a process that was under his control. He apportioned liability 25% to the landlord and 75% to the builder, but he also found that the claimant had been 25% to blame for the accident.

Appeal

Alexander v Freshwater Properties Ltd & Anor [2012] EWCA Civ 1048 is an appeal by the building contractor and the landlord against that decision.

The builder appealed on the grounds that the principles governing liability for negligence had not been determined correctly. As a result he had wrongly been held liable. Alternatively, he contended that the Recorder had been wrong to find that he was 75% to blame for the accident.

Faced with an appeal by the builder the landlord also sought to appeal, on the grounds that the Recorder had failed to apply the correct principles of law and that as a result it had wrongly been held liable to the claimant. In the alternative, it resisted the builder’s appeal on apportionment of liability on the grounds that the Recorder’s decision was open to him on the evidence and should not be disturbed.

The issue of liability

Both landlord and the building contractor relied upon a recent case Whippey v Jones [2009] EWCA Civ 452 where Mr. Jones had taken his Great Dane, ‘Hector’, to the park for a walk. Hector was still young and rather playful. He would run to within five or ten feet of people and bark, but he had never touched them in the past, so Mr. Whippey had no reason to think that if he were allowed off the lead he was likely to injure anyone. On the day in question, however, Hector had appeared from behind a bush while Mr Jones was running along the footpath by the river and had knocked into Mr Jones, causing him to lose his balance. As a result he fell down the sloping bank to the area by the river side and in the course of doing so he broke his ankle.

In Whippey v Jones, the Court of Appeal held:

“Before holding that a person’s standard of care has fallen below the objective standard expected and so finding that he acted negligently, the court must be satisfied that a reasonable person in the position of the defendant (i.e. the person who caused the incident) would contemplate that injury is likely to follow from his acts or omissions. Nor is the remote possibility of injury enough; there must be a sufficient probability of injury to lead a reasonable person (in the position of the defendant) to anticipate it.”

The building contractors liability

The builder argued he would not be in breach of a duty of care towards those who used the front door unless a reasonable person in his position would have realised that the absence of an exterior handle might result in someone’s suffering injury by getting their fingers trapped in the door. In the present case that was highly unlikely: the door was fitted with a self-closing mechanism, the handle was not designed for closing the door, none of the residents who gave evidence thought that there was a serious risk of injury and for an accident to occur there would have to be an unusual sequence of events.

However, the court held that the builder was negligent.

… The door was heavy and was therefore likely to cause injury if fingers were trapped in it. The self-closing mechanism was not effective, as the notice made clear: residents were asked to pull the door shut behind them when going in or out. The Recorder found that the builder himself removed the handle from the door, that when he did so he failed to check carefully whether it shut securely and safely, that he ought to have seen the sign, but did not, and that if he had seen the sign he would have realised that the self-closing mechanism did not work reliably. … In those circumstances a reasonable person in the position of the builder would have realised that residents would try to pull the door closed as they left the building, that in the absence of a temporary handle the only means of doing so was to grasp the edge of the door and that to secure the door without trapping one’s fingers required careful timing when letting go of it. The risk of injury was not, in my view, remote and could have been avoided by the relatively simple expedient of fitting a temporary handle of some kind…

The landlords liability

The landlord argued that it is not enough that the defendant should have foreseen the possibility of injury; in order to be held liable it is necessary that a reasonable person in his position should have realised that the likelihood of injury was sufficiently great to require steps to be taken to prevent it. If the Recorder had adopted that approach he would have held that the risk of harm was so low that neither defendant could reasonably have been expected to guard against it.

The landlord also submitted that it had delegated responsibility for the safe performance of the refurbishment work to the builder and that it was therefore entitled to rely on section 2(4)(b) of the Occupiers Liability Act 1957 which provides as follows:

In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that (for example)—

(a) …

(b) where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done.

The court though, agreed with the Recorder from the earlier decision namely:

… that the landlord was aware of the circumstances which created the danger (a heavy door with a defective self-closing mechanism and the lack of any exterior handle) and failed to take reasonable steps to avoid it by fitting, or requiring the builder to fit, a temporary handle or repairing or replacing the self-closing mechanism. In those circumstances he was entitled to find that the landlord was personally negligent and had failed to take such steps as it ought reasonably to have taken in order to satisfy itself that the work on the door had been properly done. In my view, therefore, the judge was entitled to hold that the landlord was in breach of its duty under section 2(1) of the Occupiers’ Liability Act 1957.

Apportionment of liability

Apportionment of liability involves an assessment of the degree of responsibility to be borne by each party having regard to all the circumstances of the case. The order for apportionment was varied to provide that the builder and the landlord were equally responsible.

The danger arose from a combination of a defective self-closing mechanism and the absence of an exterior handle. Both defendants were parties to the decision to re-polish and replace the handle and both knew that that would take some time. Both were, or should have been, aware that the door was heavy and that the self-closing mechanism did not work properly. Both were, or should have been, aware that the residents were encouraged to pull the door shut behind them when leaving the premises and both were, or should have been, aware that once the handle had been removed that could be done only by grasping the edge of the door and pulling it shut. … In my judgment there was no good reason in this case to attribute greater responsibility to him than to the landlord. In those circumstances I do not think that the Recorder’s apportionment of liability can stand…

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