Alexander v Freshwater Properties Ltd and another

Occupier’s liability – Negligence – Damages – Tenant suffering injury due to defective self-closing mechanism on front door of building – Court finding appellant landlord and contractor liable for accident and apportioning liability 25% and 75% respectively – Whether judge applying correct principles on liability for negligence – Whether judge correctly apportioning liability between appellants – Appeal allowed in part on apportionment of liability The respondent was injured when the index finger of her left hand was caught in the front door of the block of flats where she lived and she suffered traumatic partial amputation of her finger. The first appellant landlord was the occupier of the building and as such was responsible for the upkeep of the common parts, including the front door. The second appellant was a building contractor engaged by the first appellant to carry out a programme of refurbishment to the building, included the removal, polishing and replacement of the exterior handles on the front door. As a result of the accident, the respondent brought proceedings against both appellants alleging breach of duty under the Occupiers’ Liability Act 1957 and negligence. The county court held that the second appellant should have known from a 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 judge found that the first appellant had also been negligent since it had better means that the second appellant of knowing that the self-closing mechanism was defective. It had been involved in the decision to send the handle away for cleaning and should have done more to ensure the safety of residents by installing a temporary handle or making sure the self-closing mechanism was working. Accordingly, the judge held that both appellants were liable and apportioned liability as to 25% to the first appellant and 75% to the second appellant but also found that the respondent had been 25% to blame for the accident. The appellants appealed, contending that the judge had failed to apply the principles governing liability for negligence correctly. The first appellant also contended that it had delegated responsibility for the safe performance of the refurbishment work to the second appellant so that it was entitled to rely on section 2(4)(b) of the Occupiers Liability Act 1957 as having discharged its common duty of care. Held: The appeal was allowed in part. The court was fully justified in its decision that the second appellant builder had been negligent. A reasonable person in its position would have realised that residents would try to pull the door closed as they left and that to secure the door without trapping one’s fingers required careful timing. The risk of injury was not remote and could have been avoided by the simple expedient of fitting a temporary handle. Furthermore, insofar as this was an accident waiting to happen, that should have been at least as apparent to the first appellant as to the second: Whippey v Jones [2009] EWCA Civ 452 considered.A landlord’s common duty of care under section 2(1) of the 1957 Act was to take such care as in all the circumstances of the case was reasonable to see that the residents would be reasonably safe in using the premises. In the context of the present case, that amounted to the same as the common law duty of care, a personal duty which required the landlord for his own part to take all reasonable care to ensure that the residents were reasonably safe. It had not been suggested that the second appellant was not a competent contractor or that the landlord had failed to satisfy himself properly of that fact, but that was not an answer if there had been negligence on the part of the first appellant itself. The county court had found that the landlord was aware of the circumstances which created the danger and failed to take reasonable steps to avoid. In those circumstances the court 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. Therefore, the judge had been entitled to hold that the first appellant was in breach of its duty under section 2(1) of the 1957 Act. Apportionment of liability under section 2(1) of the Civil Liability (Contribution) Act 1978 involved an assessment of the degree of responsibility to be borne by each party having regard to all the circumstances. Therefore, an appellate court should be slow to interfere with the judge’s decision unless it was satisfied that there had been a failure to take into account relevant facts or a proper ground of distinction between the parties or was clearly wrong. In the present case the judge dealt with the matter briefly and appeared to have based his decision on who was responsible for carrying out the work rather than on who was responsible for the existence of the danger. Although the work of removing the handle was the responsibility of the builder, that of itself was only part of the picture and did not provide a satisfactory basis for finding that the second appellant was significantly more responsible for what happened than the first appellant. In the present case, there was no good reason to attribute greater responsibility to the second appellant than to the first. Alexander Macpherson (instructed by Clyde & Co LLP) appeared for the first appellant; Jonathan Grace (instructed by Keoghs LLP) appeared for the second appellant; James Townsend (instructed by McDaniel & Co) appeared for the respondent. Eileen O’Grady, barrister