The recent insurance-related legal judgments and what they mean for the sector

Homeowners not liable

Kmiecic v Isaacs

(Court of Appeal)

Carpenter Tomasz Kmiecic was seriously injured when he fell from a ladder while carrying roofing material up to the flat roof of Nadia Isaacs’ garage. He was permanently disabled and no longer able to work as a builder. As the company Kmiecic was working for was uninsured, he brought an action against Isaacs.

Kmiecic argued that Isaacs had refused to allow him to access the garage roof through a bedroom window, effectively taking control of his work and forcing him to use an unsuitable ladder. The claimant argued that this gave the defendant a duty to the claimant under health and safety regulations.

Decision

The Court of Appeal rejected Kmiecic’s appeal against an earlier ruling that Isaacs was not liable. To impose a health and safety duty on an ordinary householder who knew nothing about construction would run against the objectives of the regulations.

What this means

A householder who declines to let builders access work by entering their homes will not be deemed to have adopted a duty for their safety, but anyone who starts directing how work should be carried out runs the risk of being held liable under the regulations.

Buy-to-let avalanche halted

Scullion v Bank of Scotland Plc t/as Colleys

(Court of Appeal)

Andrew Collins of surveyors Colleys valued a flat bought by buy-to-let investor Emmett Scullion at £353,000, with rental income of £2,000 per month. But Scullion was only able to let the flat for around £1,000 per month, far short of the figure needed to cover the mortgage. He later sold the property, receiving just £270,000 for it.

Scullion sued Colleys, alleging negligent overvaluation of both the capital and rental values. In a decision last October, a judge dismissed the first part of the claim but agreed with the rental element, awarding compensation of £72,234.

Decision

The Court of Appeal has overturned the earlier decision, concluding that Collins had not owed Scullion a duty of care on the grounds that he had bought the property for purely commercial investment purposes and was not an “ordinary, domestic householder purchasing his home”. The decision meant Collins was not entitled to recover his lost rental income.

What this means

Professional risks partner at national law firm Beachcroft, Duncan Greenwood, said: “Surveyors and their insurers, who have been facing a potential avalanche of claims from investors in the buy-to-let market seeking to recover lost rental income, should be delighted with this result.”

Banister tragedy verdict

Ruth Geary v JD Wetherspoon Plc

(High Court)

Ruth Geary fell nearly 12ft onto a marble floor in JD Wetherspoon’s Union Rooms pub in Newcastle in 2007, after attempting to slide down a banister. She sustained significant spinal injuries, rendering her tetraplegic.

The claimant alleged breach of the Occupiers’ Liability Act and negligence on the grounds that the banister was more than two metres lower than the height stipulated in building regulations. The local authority had relaxed the regulation over the height of the banister when it had allowed the conversion of the listed former gentleman’s club.

Following previous minor accidents involving customers sliding down the banister, a rope had been wound around it in order to deter customers. Geary admitted that she had been aware of the risk involved in sliding down the banister.

Decision

The court found that the defendant owed Geary no duty of care even though there was a foreseeable risk of injury.

Distinguishing from cases where a claimant has been provided with inadequate training or instruction, it ruled that Geary decided to embark on a risky activity when the dangers were obvious.

What this means

Solicitor Helen Pegelow of Langleys insurance division casualty unit said: “While this is a tragic case, it acts as a useful reminder that a claimant’s own recklessness in undertaking an obviously dangerous act cannot then be pinned on the occupier as a breach of duty or negligence.”