Alexander v Freshwater Properties Ltd & Anor

Negligence requires more than a foreseeable possibility of injury. The question is whether a reasonable person in the defendant’s position would regard the risk as sufficiently probable or serious to require protective action; a remote possibility is insufficient.

An occupier’s personal duty to keep visitors reasonably safe is not displaced by delegating work to a competent independent contractor where the occupier knows of the danger and fails to take reasonable steps. Apportionment must be just and equitable, considering all parties’ responsibility for the damage and the existence of the danger, not merely who performed the relevant work. Appellate interference is limited but available where the apportionment is clearly wrong or rests on an inadequate basis.

Jasmine Alexander was injured when her finger was trapped in a heavy communal front door. Its unreliable self-closing mechanism required users to pull the door shut, but an exterior handle had been removed for refurbishment.

The Central London County Court held the landlord and builder negligent, apportioning responsibility between them 25% and 75%, and found Alexander 25% contributorily negligent. The builder appealed on liability and apportionment. The landlord obtained permission out of time to challenge liability after the builder’s appeal had been permitted. The central issues were whether the Recorder applied the correct negligence principles and whether the apportionment was sustainable.

1. Disposition. Moore-Bick LJ gave the judgment, with Sullivan and Maurice Kay LJJ agreeing. The landlord’s application for permission to appeal and an extension of time was granted. Both appeals against liability were dismissed, but the builder’s appeal against apportionment was allowed to the extent stated.
2. Negligence and foreseeability. Bare foreseeability of injury is not a complete statement of the law. The court must decide whether a reasonable person in the defendant’s position would have regarded the risk as sufficiently serious to require action. The statement of principle in Whippey v Jones [2009] EWCA Civ 452 was treated as unexceptionable but too brief to express the whole inquiry.
3. Builder’s liability. The heavy door, unreliable self-closing mechanism, absence of an exterior handle and the notice directing residents to pull the door shut made the risk of trapped fingers foreseeable and non-remote. A temporary handle would have been a relatively simple precaution. The Recorder was entitled to find the builder negligent.
4. Landlord’s liability. Section 2(1) of the Occupiers’ Liability Act 1957 imposed a personal duty to take reasonable care to ensure that residents were reasonably safe. Section 2(4)(b) did not answer a finding of negligence by the landlord itself. The landlord knew, or should have known, of the danger and failed to take reasonable steps, such as fitting a temporary handle or repairing the mechanism.
5. Apportionment. Under section 2(1) of the Civil Liability (Contribution) Act 1978, responsibility had to be apportioned justly and equitably having regard to all the circumstances and each party’s responsibility for the damage. The appellate court should be slow to interfere unless relevant matters or a proper ground of distinction had been overlooked, or the decision was clearly wrong. The Recorder had placed undue weight on the builder’s control of the handle work. Both parties contributed materially to the danger, so responsibility between the landlord and builder was varied to 50% each.

1. Court of Appeal (Civil Division) — In [2012] EWCA Civ 1048, both appeals against liability were dismissed. The builder’s appeal on apportionment was allowed and responsibility between the defendants was varied to equal shares.
2. Central London County Court — The Recorder held both defendants liable, apportioned responsibility 25% to the landlord and 75% to the builder, and found the claimant 25% contributorily negligent.