Darvell v Newitt

The existence of negligence in premises liability may depend on the particular circumstances of the premises and the foreseeable risk to visitors. The absence of safety regulations or evidence of a universal practice does not prevent a finding that reasonable care required a warning or other precaution. Relevant considerations may include the physical characteristics of the premises, lighting, the unfamiliarity of visitors, and the likelihood that children will use the premises. On an appeal concerning a fact-sensitive negligence finding, the appellate court will not substitute its own view of the evidence for that of the trial judge merely because it might have assessed the circumstances differently.

An 11-year-old claimant was seriously injured in Antigua when she collided with a closed, unmarked glass window at a holiday villa. The window shattered and caused severe lacerations. The defendant disputed negligence, contending that warning stickers had been present and, alternatively, that their absence was not a breach of duty.

The Oxford County Court rejected the evidence that stickers were present and held that reasonable care required stickers on the window. The defendant applied to the Court of Appeal for permission to appeal, arguing that there were no applicable safety regulations, no universal practice of marking windows, and other features should have made the closed window apparent. The central issue was whether the trial judge’s fact-sensitive conclusion was properly arguable on appeal.

1. Application refused. There was no real prospect that an appeal would succeed.
2. The question whether the absence of warning stickers amounted to negligence depended essentially on the particular circumstances of the window and the premises. The evidence that stickers had originally been fitted, together with the defendant’s concession that stickers were necessary, supported the trial judge’s conclusion that reasonable care required them.
3. The absence of a breach of safety regulations, and the absence of evidence of a universal practice in Antigua or England, did not determine the common-law question of reasonable care. Nor did the decision imply that every glass door or window required stickers in every setting.
4. The circumstances materially increased the foreseeable risk. The strong contrast between the bright exterior sunlight and the interior, the visitors’ unfamiliarity with the villa, the absence of a full-time householder, and the likelihood that children would move between the interior and exterior made the danger in this case greater than in an ordinary domestic situation.
5. The proposed appeal invited the court to substitute its own view of the facts without hearing all the evidence. The Court of Appeal would not do so.

Permission to appeal was refused. No order for costs.

• Court of Appeal (Civil Division): refused permission to appeal from the judgment of His Honour Judge Charles Harris QC in the Oxford County Court on 12 January 2000.