Property Case Law Update - PROPERTY OWNERS: How to Manage Risk Of Being Sued Tragic case of Toddler
“…..an infant is afraid of nothing and in danger of everything when left to his own devices” (Quoted in the judgment)
This case issues a strong warning to parents of young children as well as illustrating how a property-owner’s liability can be managed:-
• A child who had just started walking accompanied her parents on a visit to a friend’s house.
• The owners had warned the parents of the danger posed by their fish pond.
• The child fell into the pond and despite resuscitation suffered severe and permanent brain damage.
• The father sued for damages.
Dismissing the claim, the Court held that whilst clearly the owners had a legal duty to take reasonable steps to protect the child from harm or injury on their property, the warning they had issued to the parents was sufficient for them to have complied with that duty. The owners were entitled to expect the parents to supervise their child accordingly. It would place an unfair duty on property owners said the Court, and would discourage social interaction, to expect an owner “to go beyond reasonable means in order to make his or her property safe”.
Importantly, although the pond was held to be a deviation from the approved building plans the deviation was only a “minor” one, and it was constructed before strict new safety regulations for pools and ponds came into effect.
So as a property owner, what should you do?
• Your first and best line of defence of course is to maintain your property in as safe a condition as possible. Legal considerations aside, no one wants to be responsible for a serious injury or death.
• Take all “reasonable steps” to avoid danger to visitors, including issuing warnings where applicable. There are no hard and fast rules here - all the circumstances of each case will be taken into account.
• Comply with all national and local building and safety regulations. Failure to do so greatly increases your risk of being found guilty of negligence.
• Ask your attorney about indemnity/disclaimer/exemption notices on your property and in all leases and other property contracts. Just bear in mind their limitations - in the second case for example a general disclaimer notice at the entrance to the estate was conceded by the owners to be ineffective in the circumstances. Disclaimers are particularly hard to enforce when constitutional considerations or the Consumer Protection Act apply.
Last but certainly not least, check that your insurance cover is wide enough to encompass any possible claim.
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