Pollock v Cahill & Anor

Under the common duty of care owed by occupiers, reasonable safety must be assessed by reference to the visitor’s known vulnerability. An open second-storey window may create a real risk to a blind visitor, even though it would not ordinarily be dangerous to a sighted person. The occupier should take reasonable steps, such as keeping the window closed or giving a sufficiently specific warning.

Volenti requires willing acceptance of a known risk. A visitor who is unaware of the window and its condition cannot be treated as having accepted the risk. A claimant is not contributorily negligent merely because he failed to take precautions based on facts of which he was unaware.

The claimant, who was blind, fell from an open second-floor window while staying at the defendants’ home. He suffered serious spinal and brain injuries and brought a claim alleging breach of the occupiers’ duty of care. The defendants disputed who had opened the window and how the fall occurred. They also relied on volenti and contributory negligence.

The court determined the factual cause of the fall, whether the open window created a foreseeable risk requiring precautions, and whether the claimant had willingly accepted or contributed to that risk.

1. Factual causation. The claimant proved on the balance of probabilities that the first defendant had opened the bedroom window. The claimant had then fallen while, having just woken, attempting to find the bathroom. Because he was blind, he lost his sense of direction, believed that he was approaching the door and moved forward through the open window. The court rejected alleged alternatives involving deliberate leaning out, sleepwalking or reduced consciousness as lacking a proper evidential basis.
2. Standard of care. The common duty under section 2 of the Occupiers Liability Act 1957 required reasonable safety to be assessed by reference to the claimant’s known blindness. An open second-floor window was an obvious real risk to him, although it would not have rendered the room unsafe for a sighted visitor. The defendants ought to have appreciated the risk and either kept the window closed or warned the claimant specifically about the window and the drop. They failed to discharge the duty.
3. Proof. The defendants’ reliance on The Popi M [1985] 1 WLR 948 did not assist them. The principle that a claimant may fail to discharge the burden of proof where the evidence leaves the court in doubt did not require the court to accept alternative explanations which were not genuine possibilities. The claimant’s account was more probable than those alternatives.
4. Defences. Section 2(5) did not apply. The claimant neither knew of the window nor willingly accepted the risk it created. The allegations of contributory negligence also failed because he had no reasonable basis to inquire about or avoid a window whose existence he did not know.
5. There was judgment for the claimant on liability.