Pollock v Cahill & Anor [2015] EWHC 2260 (QB)

Case No HQ13X02006[2015] EWHC 2260 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 30/07/2015
Before
THE HON. MR JUSTICE WILLIAM DAVIS
Between
Mark PollockClaimantEnda CahillDefendantsMadeline CahillDefendant
Mr Christopher Wilson-Smith QC and Mr Matthew Stockwell (instructed by Stewarts Law LLP) for ClaimantMr Stephen Grime QC and Mr Alex Taylor (instructed by Keoghs LLP) for DefendantHearing Hearing dates: 20 -24 July 2015
Judgment

Introduction

[1]Mark Pollock is now aged 39. On 2nd July 2010 he fell from an open second floor window at the home in Henley on Thames of the Defendants, Enda and Madeline Cahill. As a result he sustained spinal and brain injuries. He is now paralysed from the waist downwards. Those matters are not in dispute. Mr Pollock’s case is that he fell from the window due to the breach of the Defendants’ duty as occupiers of the house in which he was staying. Insofar as Mr Pollock may be able to prove how and why he fell from the window, the Defendants deny any breach of duty. Further, they argue that, if there was a foreseeable risk of injury, Mr Pollock willingly accepted the risk and/or that Mr Pollock caused or contributed to his injuries by his own negligence. I am required only to consider the issue of liability. Mr Pollock has expressly limited his claim to the limit of the indemnity provided by the Defendants’ public liability insurers. This limit is £2,000,000. I anticipate that, if he succeeds on the issue of liability, little investigation will be required on the issue of quantum. The value of Mr Pollock’s claim absent such limitation inevitably would be significantly greater than the limit he has set. 2. In closing submissions Mr Grime Q.C. described this as “a most unusual, most unhappy and tragic case”. That description was intended to reflect the fact that, prior to the events in 2010, Mr Pollock was totally blind with no light perception at all. He had not been blind since birth. Rather, he had become blind in 1998. Despite his blindness Mr Pollock initially had made a successful career in business. He then went to achieve great things as an adventure athlete and as a rower. He took part in a race to the South Pole, he competed in several marathons and he participated in a variety of races in hugely challenging conditions. Shortly before his fall he had completed the Round Ireland yacht race. As a rower he won two medals at the Commonwealth Games. His athletic achievements would have been notable for someone without any disability. Given his blindness they were and are remarkable. The events of 2010 have meant that Mr Pollock no longer can undertake the athletic challenges of which he was capable before his fall. Having overcome one disability, he now has had to come to terms with another. 3. Mr Grime Q.C. argues that my consideration of the case should revolve around two questions. Who opened the window and to what extent? How did Mr Pollock come to fall from the window? I agree that those are the core questions of fact. Given that this was a relatively simple event – a man fell from an open window – it might be thought the evidence would be straightforward. That is not the case and I shall have to engage in a relatively close analysis of the evidence. In the light of that analysis I shall consider the factual questions posed by Mr Grime Q.C. I then shall consider the consequences of my findings of fact in relation to the Defendants’ breach of duty (if any).

The evidence – the state of the window

[4]Mr Pollock had arrived at the Defendants’ home on the day before his fall. He and a number of other friends had come to Henley in order to attend the summer Regatta. This was not the first time that he had visited the house. There had been a similar house party the previous year. On both occasions he had slept in a bedroom on the second floor. It was a room of modest size with twin beds. The beds were positioned either side of the only window in the room. The window was a double casement window of conventional timber construction. Each window was 135 centimetres high and 55 centimetres wide. The windows met at a central mullion. I do not have a precise measurement of the mullion. This does not matter since the maximum aperture of the window was the aperture created by one of the casements. Each casement had a stay with 5 holes. The stay could be placed on a pin on the window sill with the size of the opening dependent on which hole was used. The height of the window sill was 830 centimetres i.e. approximately mid thigh on a man of Mr Pollock’s height. Internally the sill was 21 centimetres deep.[5]Since Mr Pollock fell out of the window and since there was no apparent damage to the window after his fall, the window must have been open prior to his fall. I shall return to the evidence about who opened the window hereafter. However, the evidence about the extent to which the window was open at the time of the fall is problematic. Mr Pollock can give no evidence on the point. Self evidently he could not see how far the window was open. His evidence is that, although he assumed that there was a window in the room, he did not know where it was or what type of window it was and that he did not know that it was open.[6]When Mr Pollock fell a number of people were sitting around a table on a terrace at ground level. The table was not immediately below the window in question but it was relatively close to it. Two of those at the table noticed that one or both of the casement windows were open. Alice Whittaker’s evidence in her witness statement was as follows:
“…I did notice that the window of Mark’s room was open….I cannot say how far it was open”
. In her oral evidence she explained that she was unable to say whether both casements were open. She had only glanced up and had not taken note of that level of detail. Brendan Smyth in his witness statement said that both casements were slightly open i.e. as if on the first hole in the stay to each casement. In his oral evidence he recalled that only the right hand casement (as looked at from the ground) had been open. He did not expand on how wide the window was open. He said that he noticed the open window because he was concerned that the noise of people talking might wake Mr Pollock whom he knew was sleeping in the room above. This is the only evidence I have as to the state of the window immediately before Mr Pollock’s fall. Mr Smyth’s evidence about the window(s) being only slightly open cannot be correct unless Mr Pollock opened the window himself prior to his fall. Since I accept Mr Pollock’s evidence that he was unaware of the presence or position of the window, I reject that possibility. It follows that there is no satisfactory eye witness evidence about how far the window was open immediately before the fall. Given that Mr Smyth noticed the open window and was concerned about the sound of conversation waking Mr Pollock, it is a proper inference from his evidence alone that the window – whether just one casement or both – was more than slightly open. Had that been the position, it is unlikely that Mr Smyth would have noticed it and, even if he had, he would not have been worried about disturbing Mr Pollock.[7]Mr Pollock’s fall was a sudden, shocking and unexpected event. It was immediately apparent to all those sitting around the table that he was seriously hurt. Their concern was his welfare. No-one at ground level properly considered the window from which he had fallen. Martin Murphy, another guest at the house who had been sharing the room with Mr Pollock, in his oral evidence said that he had seen the window either as Mr Pollock fell or once Mr Pollock had come to rest. He said that “for some reason I expected to see the windows wide open and I did not see them.” When pressed he said that Mr Pollock had come out of the window so it must have been open but beyond that he would be speculating. Given the circumstances of his observation Mr Murphy’s impressionistic view cannot be given any weight. That is not criticism of him as a witness. Rather, it reflects the situation at the time.[8]Two witnesses said that they went up to Mr Pollock’s room in the immediate aftermath of the accident. Enda Cahill went to the room in order to discover the details of medication which it was understood Mr Pollock was taking. This was because the emergency services had asked about the medication. Although I had no specific evidence on the point, I infer that this was the kind of inquiry frequently made when a patient is seriously injured and those treating the patient need to know what existing medication is being ingested in case of the need to administer other drugs or anaesthesia. Enda Cahill agreed that he needed to get this information quickly so it could be passed on to the emergency services. Notwithstanding the urgency of his mission Mr Cahill said that he also looked at the window. Indeed, he stood at the window for a few seconds and was able to observe that both windows were open and on the latch i.e. the stays were on the pins. Not only did he observe that the windows were on the latch, he also noted that one stay was on the third latch and the other stay was on the second latch. He was not able to say which casement was on which latch. Alice Whittaker went to the room in order to fetch some personal belongings of Mr Pollock so that they could go with him to the hospital. The proper inference must be that her visit came after Mr Cahill’s though she believed that she was the only visitor to the room before Mr Pollock was taken to hospital. Her evidence was that both windows were open, the left slightly more than the right. The left hand window was open to an angle of 30 degrees to 45 degrees and the right hand window 15 degrees to 30 degrees. The stay of each window was on a pin. She could not recall which with any precision.[9]After Mr Pollock had left in the ambulance the evidence of Mr and Mrs Cahill is that they visited the bedroom together. Mr Cahill did not mention any such visit in any of his witness statements. In his oral evidence he said that he had gone to the bedroom at around 2.00 a.m. just before he and his wife went to bed. He said that he did so “to start to look at the scene and see how did this happen.” He discussed that with his wife. The windows were both open at that time. Mrs Cahill said that she had a vague memory of going to the bedroom “for a very short while.” The purpose of the visit was to see if there was anything else left in the room which Mr Pollock would need. Mrs Cahill did not suggest that she had noticed the state of the windows at that point. She said that she was not thinking clearly at this time given what had happened to Mr Pollock. Neither Mr Cahill nor his wife said that they touched the windows on this visit.[10]Alice Whittaker’s evidence was that she was not with the Cahills when they went to the bedroom at about 2.00 a.m. She said that she did go to the bedroom again nearer to 7.00 a.m. Her purpose for doing so was “to look at how this (the fall) had happened.” She said that she looked around the room to see if there was something which could explain the fall. But according to her she could not recall the position of the window on this visit. There is another piece of evidence in relation to Alice Whittaker and a visit to the bedroom. Brendan Smyth (who is Alice Whittaker’s husband) had a conversation with her at some point within weeks of the events of the 2nd July during which his wife had said something to the effect that she and one of the Cahills had gone to the bedroom after the accident and that one of them had closed the window. Alice Whittaker was asked about that and did not recall any such visit.[11]Shortly after 7.00 a.m. on the morning of the 3rd July 2010 Madeline Cahill took some photographs of the scene. She began at ground level. She took two photographs looking up at the relevant window. They show one of the casements fully closed and the other casement slightly ajar. She then went to the bedroom. The first interior view photograph of the window shows the left hand casement (as seen from inside) open with the stay on the first hole or latch and the right hand casement fully closed with the handles in the closed position. Mrs Cahill then opened the left hand casement so as to place the stay on the second hole or latch and the right hand casement with the stay on the third hold or latch. Her evidence was that she did so in order to recreate the position as it had been when Mr Pollock had fallen. She knew where to place the stays because her husband had told her the night before i.e. at some point in the aftermath of the accident.[12]Mrs Cahill made a number of witness statements from the point in August 2011 when the claim was notified by Mr Pollock’s solicitors. The first of those statements was made to a loss adjuster instructed by her insurers. She showed the loss adjuster the photographs she had taken albeit simply on the small screen on the digital camera. Her evidence at that stage was that, so far as she was aware, no one had touched the windows after the accident. When she gave oral evidence Mrs Cahill accepted that the proper meaning of that statement was that the photographs of the open windows had been taken before anyone had touched the windows. She further accepted that this was not accurate.[13]Mrs Cahill’s purported reconstruction when she took the photographs of how the window had been immediately after Mr Pollock’s fall was not the only exercise in reconstruction she undertook. At some point within two weeks of Mr Pollock’s fall the sisters of Mr Pollock’s fiancée – Nathalie and Lisa George – visited the house at the invitation of the Cahills. They were shown the bedroom window from which Mr Pollock had fallen. Mrs Cahill opened one of the casements. The sisters’ recollection of which casement was opened differs. That difference of recollection is immaterial. Mrs Cahill agreed that she did open one (and only one) of the windows. She said that this was because she assumed that Mr Pollock must have fallen through the window nearest his bed. Both sisters had the same recollection as to how much space was provided by the window in this reconstruction exercise though one referred to the distance in metric terms (around 14 cms) and the other used imperial measurement (about 6 inches). Neither could understand how Mr Pollock could have fallen at all through the gap available.

The evidence – who opened the window?

[14]Whichever casement was open and how far either was open, there can be no doubt that the window was open at the time of the fall. As already indicated Mr Pollock did not know that there was a window in the room. Thus, he was not the person who had opened it. The other person who had occupied the bedroom on the previous night was Mr Murphy. His evidence on this issue came simply from his witness statement in which he said “I do not know who opened the windows or whether they were open when we arrived at the house. However, we were 2 men sharing a room in hot weather and it could be kind of smelly so I am sure one of us would have opened the window.”[15]The direct evidence from the Cahills on this issue was surprisingly sparse. Their witness statements dealt with the opening of the window in elliptical terms with the initial statements being silent on the topic. Mrs Cahill in her statement of 10th October 2013 said “I do not remember opening the window or making a decision not to close it. I did not think about the window….” In her statement of 11th March 2015 she said “I reiterate that we did not leave the window open.” It is not clear where she previously had said that “we did not leave the window open.” When describing the visit of Nathalie and Lisa George to her house some days after the accident, Mrs Cahill denied that she had said then that she had opened a particular window. But she did say this:
“…when I would have opened the windows, it would have been when I was making up the room and at that point in time I did not know that Mark was going to be in there…”
[16]Mr Pollock was in intensive care at Reading Hospital for some days after his fall. His fiancée – Simone George – together with her two sisters as already identified and Barbara Carson, Mr Pollock’s mother, all travelled from Ireland and spent those days at the hospital. Mr and Mrs Cahill were regular visitors. The evidence of Simone George, her sisters and Mrs Carson was that they had various conversations with Mrs Cahill in which she spoke of the window from which Mr Pollock fell.[17]Simone George’s evidence was that she had had a conversation with Mrs Cahill in the context of how Mrs Cahill felt now about her house in which she (Simone) had said that she hoped that Mrs Cahill did not feel bad about the house given what had occurred there. Mrs Cahill’s response had been to the effect that “the awful thing was that it had occurred to her that it might not be safe for her to leave the window in Mark’s bedroom open what with Mark being blind but that it was warm and so she thought on balance it was best open”. Simone George said that she was shocked by what Mrs Cahill had said – “it felt like a punch in the stomach” – but she did not say anything because a ‘what if’ conversation would not have helped. Simone George said that, though her description of Mrs Cahill’s comments was not verbatim, some words such as “awful” and “on balance” stuck in her mind.[18]Nathalie George gave evidence of a similar conversation. Since Simone George spent most of her time by the bedside of Mr Pollock, this evidence is not to be taken as another account of the same conversation. Nathalie George recalled Mrs Cahill as saying that she had had to decide whether to open the window in Mr Pollock’s room. Mrs Cahill had said that she had considered whether it was a good idea given that he was blind and that it might not be safe but she concluded that it would have been impossible to sleep in the room because it was a hot day so she had opened the window and put it on the latch. Nathalie George said that she did not then or later criticise Mrs Cahill for what she had done. She felt that this would not have helped Mr Pollock’s recovery which was the main focus. The fact that he had fallen out of the window was something which had happened and which could not be reversed. She said that her heart had gone out to Mrs Cahill on the basis that Mr Pollock’s accident had occurred because of what Mrs Cahill had done even though she had the best of intentions.[19]Lisa George’s evidence as to what Mrs Cahill said about the opening of the window was in very similar terms to that of her sister, Nathalie. Her recollection was that the discussion had taken place with several people present. She amplified her account in her oral evidence with a reference to Mrs Cahill saying how hot and still it was.[20]Barbara Carson had a conversation with Mrs Cahill apart from the George sisters. Mrs Cahill did not say in terms to Mrs Carson that she had opened the window in Mr Pollock’s room. Rather, Mrs Carson said that Mrs Cahill had told her that it had crossed her mind before the accident that the window in the room should be kept closed because Mr Pollock was blind. Mrs Carson understood that to mean that Mrs Cahill was the person responsible for not having the window kept closed.[21]Mrs Cahill did not recall any conversation in the terms set out by any of those witnesses.

Who opened the window and to what extent?

[22]I am wholly satisfied on the evidence that Mrs Cahill opened the window in the bedroom used by Mr Pollock. Before considering the basis for that conclusion I must deal with the evidence of Mr Murphy. His evidence does not provide any basis for a finding that he was responsible for opening the window. His witness statement is in clear terms. “I do not know who opened the windows….” That is inconsistent with the proposition that he did so. He did not say, for instance, that he could not remember whether he opened the window. When he went on to say “…I am sure that one of us would have opened the window” I cannot take that to mean that he or Mr Pollock did do so. In context it means simply that, had no-one else opened the window, he would have done had the need arisen. Mr Murphy’s evidence in fact is relied on by Mr Grime Q.C. in a different way. In his closing submission he puts it thus:
“…the fact of the window having been open at the time of the handover (of the room)…loses any causative potency because control passed to Mr Pollock and/or Mr Murphy and the windows would have been open anyway”
. I reject that proposition. Control of the window can hardly have passed to Mr Pollock since he did not know of its existence. So far as Mr Murphy was concerned Mrs Cahill did not cease to be the occupier (with her husband) of the bedroom occupied by Mr Pollock and Mr Murphy. She did not cede control of the bedroom to him in any relevant sense. The fact that Mr Murphy said that he would have opened the window had it not been open already does not remove the causative potency of what Mrs Cahill in fact did. What Mr Murphy supposedly would have done (but did not) cannot amount to an intervening cause.[23]Although Mrs Cahill’s evidence generally was that she did not recall opening the bedroom window, she did let slip the comment about opening the windows when she was making up the room. That undermines the argument put by Mr Grime Q.C. that Mrs Cahill’s recollection has been consistent throughout. I note also the absence of any evidence at all in relation to the opening of the window in the initial statement she made when the whole purpose of the statement was to deal with a proposed claim about a fall from an open window. But the significant body of evidence which demonstrates that it was Mrs Cahill who opened the window comes from what she said at the hospital. Mr Grime Q.C. relies on the following as reasons for treating this evidence with caution: the opportunity for misinterpretation given the circumstances of the conversations; the possibility of defective memory; the differences in the accounts given by the witnesses; the likelihood that it was one of the occupants of the room who opened the window. In effect he argues that the effect of those matters is that the evidence of what Mrs Cahill said at the hospital is of little or no probative value. I shall deal with those points in turn.[24]The conversations clearly took place when all concerned were under great stress. I have to take account of the risk of those under stress misunderstanding or misinterpreting what has been said to them. But the evidence of each of the witnesses who spoke of the comments made by Mrs Cahill was compelling. Simone George did not claim to have a verbatim recollection of what had been said to her. She did have a clear memory of certain words and phrases. I am satisfied that this was and is a true memory. Her evidence of her reaction to what she was told – “it felt like a punch in the stomach” – was quite clearly genuine. It was precisely the reaction one might expect from someone who had not prior to that point realised that the open window was due to a conscious act. Further, Simone George’s decision to say nothing by way of reaction and her reason for that decision was wholly in keeping with the entire tenor of her evidence and of the manner in which it was given.[25]Nathalie George (whose evidence was largely mirrored by that of Lisa George) gave evidence in the same calm and measured way as Simone George. The detail she gave of what Mrs Cahill said was not what could be the result of misinterpretation. The entire sense of the discussion as described by her was clear and unequivocal. Nathalie George’s reason for not engaging in blame or criticism there and then was convincing as was her description of her overall reaction to what Mrs Cahill had said.[26]The argument in respect of defective memory is based by way of example on Nathalie and Lisa George having a different recollection of which window was opened by Mrs Cahill when they visited the bedroom. It is notable that their recollection of the extent to which the window was opened is very similar. That fact was of far greater significance than which casement was opened. In any event a failure of memory in relation to a relatively minor detail relating to the opening of the window gives no assistance in assessing the accuracy of recollection of significant remarks made by Mrs Cahill. In reality what the witnesses say about the substance (as opposed to the detail) of those remarks is not a question of recollection or memory. Either Mrs Cahill said the substance as described by the witnesses or she did not. I am quite sure that she did.[27]There is undoubtedly a difference in the accounts given of what Mrs Cahill said on the one hand to the George sisters and on the other to Mrs Carson. There were separate conversations, the content of which were different. The difference does not undermine the conclusion that Mrs Cahill opened the window. She did not say so in unequivocal terms to Mrs Carter – though that is how Mrs Carter understood her comments. The lack of unequivocality when speaking to Mrs Carter simply means that Mrs Cahill expressed herself differently in that separate conversation.[28]I consider that the proposition that one of the occupants of the room opened the window has no evidential foundation for the reasons I have given already. Even if it could be said that there were some basis for suggesting that Mr Murphy had opened the window, I then would have to balance that evidence against the evidence indicating that it was Mrs Cahill who did so. I am quite clear where the balance would fall i.e. in favour of Mrs Cahill being responsible.[29]It is more difficult to reach a clear conclusion as to the extent to which the window was open. It is quite clear that someone closed the right hand casement between the time of Mr Pollock’s fall and 7.00 a.m. the following morning. There also may have been some interference with the left hand casement. The result is that the photographs taken by Mrs Cahill at around 7.00 a.m. on the morning of 3rd July 2010 are not an unassailable record of the position at the time of Mr Pollock’s fall. The following features of the evidence are notable.• Mr Cahill claims that he was able to note the precise position of the windows on the stays at a time when he was in the bedroom in order to retrieve details of medication needed urgently by the emergency services. According to him he stood by the window for a few seconds despite the urgency of the mission on which he was engaged.• Alice Whittaker observed the windows shortly afterwards when Mr Pollock was still lying on the ground below and when the purpose of her visit was to get some of his belongings – her observation was of the two casements open but in the opposite manner to that depicted on Mrs Cahill’s photographs. She was very much less precise as to the degree to which the windows were open.• Mr Cahill said that he made a second visit to the bedroom at about 2.00 a.m. when he further observed the windows. This was a visit of some significance. Yet the first mention in evidence by him of this visit was when he was being cross-examined.• Mrs Cahill said that she visited the bedroom at about this time but only for a very short while and not in order to look at the state of the windows.• Mr Smyth was told by his wife of a visit to the bedroom at some point in the early hours after the accident during which one of the Cahills had closed the window. Mrs Whittaker did not recall any such visit and the Cahills denied closing any window at any stage on the night of the accident. There is no reason to doubt Mr Smyth’s recollection on this issue.• Mrs Cahill carried out her purported reconstruction by reference to what her husband had told her the night before in the aftermath of the accident. It was not clear when the description had been given. Once Mr Pollock had gone to the hospital, Mrs Cahill on her own account was not thinking clearly yet she apparently was able to absorb and later remember the detail of how the window had been open.• Mrs Cahill made at least one witness statement which was wholly inaccurate on the issue of whether the position of the windows had been changed between the accident and the taking of the photographs. She claimed not to have realised that it was inaccurate even though she had had to re-open the window before taking the photographs when the window concerned was the one from which Mr Pollock had fallen.• When the George sisters visited the bedroom some days later Mrs Cahill supposedly showed them how the window had been open when Mr Pollock fell. Not only was only one window opened but, more to the point, it was opened rather less than it must have been open at the time of the accident.[30]There are inferences adverse to the Cahills which flow from these features of the evidence. Mr Cahill’s evidence as to when and with whom he examined the position of the window is unsatisfactory as is Mrs Cahill’s evidence about the so-called reconstructions. Most significantly I am quite satisfied that the window was closed by one of the Cahills at some point in the early hours of the 3rd July 2010. No-one else had the opportunity to do so. The evidence of Mr Smyth is a positive indication that one of them did so. On a balance of probabilities I conclude that whichever of the Cahills did so was aware at the time of closing the window and knows now that he or she closed the window. I am not able on the evidence to reach any clear conclusion as to which of the Cahills has given misleading evidence on this topic but I am satisfied that one of them has. I do not accept that Mrs Cahill could have engaged in a reconstruction on the basis of what her husband had told her the previous evening so as to give any kind of accurate representation of the position of the window at the time of the accident. It is unrealistic to suppose that(a) there was a conversation in which Mr Cahill gave a clear account of which hole of each stay the relevant casement was fixed and(b) Mrs Cahill remembered such detail the following morning.[31]I should mention - simply to discount it - the possibility that the window closed due to the wind or some other natural phenomenon. There is no evidence that there was any wind on the evening in question. Rather, Mrs Cahill told Lisa George that it was hot and still. Moreover, it is quite clear from the photograph taken by Mrs Cahill on the morning of the 3rd July that the window had been closed so as to lower the catches at both the top and the bottom. That could not have occurred other than by someone closing the window deliberately.[32]I am forced to consider why it is that one or other of the Cahills (or possibly both) has given misleading evidence. One might conceive of some innocent explanation for the closing of the window. If so, it is difficult to see why it has not been given. It could be argued that the closing of the window served no purpose – certainly no sinister purpose since the window was re-opened and photographs taken. However, the combination of evidential features as set out above has a cumulative effect which leads me to conclude on a balance of probabilities that, to use the term adopted by Mr Grime Q.C. in his closing submissions, there has been “some kind of attempt to distort or to hide evidence.” What are the consequences of this? First, I cannot be confident that the space between the casement and mullion through which Mr Pollock must have fallen was as limited as shown on the photographs taken by Mrs Cahill. On a balance of probabilities I consider that it was greater – though I cannot reach any clear conclusion as to how much greater. Second, it is of relevance to the issue of the breach of duty of care and foreseeability to which I shall turn in due course. Third, it makes the expert evidence relating to the question of how Mr Pollock came to fall from the window even less useful than it already was.

How did Mr Pollock come to fall?

[33]I heard expert evidence on this issue. Mr Lovegrove, an ergonomist, gave evidence on behalf of Mr Pollock. Mr Brown, a mechanical engineer, was called on behalf of the Cahills. Each used a computer model to simulate the bedroom, the window and Mr Pollock. Each used a different computer model and no little time was spent in the course of the evidence in a rehearsal of the relative merits of each model. I did not find this exercise useful in reaching a conclusion on the relevant issue.[34]In substantive terms the expert witnesses were limited in the scope of their investigations by the terms of the order made at the case management conference in relation to the issues to be addressed by them. The limitations placed upon the experts in the event meant that they did not feel able to investigate the circumstances of the fall as fully as they would have done had they begun with a blank canvas. In the result the expert evidence was of limited assistance.[35]Both experts proceeded on the assumption that the casements had been open to the extent shown in the reconstruction as photographed by Mrs Cahill on the morning of the 3rd July 2010. I have explained already why that assumption probably was incorrect. However, even with the windows open in that position, it was possible for Mr Pollock to have fallen through the gap. That was the agreed position of the experts after two lengthy discussions. The computer simulation created by Mr Lovegrove does show that the fall would not have been easy. Moreover, the experts agreed that the casement and its fittings were sufficiently robust to withstand the force of Mr Pollock’s fall and to remain in place. Beyond those matters the experts – within the confines of the instructions they had been given – agreed on little else.[36]Mr Lovegrove created a computer simulation in which Mr Pollock suffered a loss of balance whilst facing the right hand casement. From that position Mr Pollock was able to fall through the window. Mr Lovegrove noted a lesion to Mr Pollock’s back which was consistent with catching the window and/or its frame during such a fall through the opening, the lesion running from the right shoulder to the left hip. Mr Lovegrove assumed a loss of balance due to the terms of the interlocutory order. He further assumed that Mr Pollock had put his hand against the central mullion, that he had incorrectly identified the mullion as part of the door frame and that he then had walked forwards in the belief that he was walking through the door. Mr Lovegrove did not agree with the proposition that this was a highly unlikely combination of circumstances. He did agree that Mr Pollock could not have gone out of the window without at some point losing his balance.[37]Mr Brown did not accept that Mr Pollock could have fallen through the window as a result of overbalancing within the bedroom. He agreed that a person could fall through the gap as posited. But the only way in which he was able to recreate a fall in his computer simulation was to position the notional person with his legs astride the window sill. Mr Brown considered that it might have been possible for a person to overbalance and fall if there had been some leaning out of the window to start with so that the momentum and/or the overall position of the person led to overbalancing. However, he was not asked to investigate this proposition so he could not offer any considered view on the subject. In general terms he accepted that he had not done any work outside the limits of his instructions to understand how a fall could have occurred.[38]A significant factor in Mr Brown’s conclusion was the width of the window sill. In his model he demonstrated that the effect of the sill was to prevent a person who knocked into the sill then tipping out of the window; rather the person fell forward across the sill. It emerged at the end of his evidence that this modelling assumed the sill would have acted as a barrier at the level of Mr Pollock’s hips or thereabouts and that Mr Pollock would have pivoted against the sill with nothing to cause further movement beyond that pivot point. In fact, because of his height and build Mr Pollock’s centre of mass was significantly above the level of the sill. Mr Brown agreed that this factor would tend to encourage forward momentum beyond the pivot point – though he still did not accept that the computer simulation created by Mr Lovegrove was viable.[39]The expert evidence is of limited value in relation to the issue of how Mr Pollock came to fall. That is not the fault of the expert witnesses. They were operating under the constraints of their instructions as limited by the interlocutory order. As I have found they were using a factual basis which probably was incorrect.[40]Mr Pollock had no recollection of how he came to fall from the window. He had spent the day at the Regatta and the Leander Club. Although he had had some alcohol he was not particularly affected by drink. He had returned to the home of the Cahills in the middle of the evening. He had decided to return to Ireland earlier than planned so he wanted an early night. Mr Murphy escorted him to the back door. He was able to make his way to the bedroom unassisted. Mr Pollock then went to bed and went to sleep. He was still asleep when the other members of the house party returned. Mrs Cahill showed Alice Whittaker around the house because there had been alterations to the house since Alice Whittaker’s last visit and they went as far as the door of Mr Pollock’s bedroom. They were able to tell that Mr Pollock was asleep. It was only a few minutes later that Mr Pollock fell from the window. He remembered nothing between going to sleep and coming round briefly as he lay on the grass outside the house.[41]It follows that Mr Pollock gave no direct evidence as to why he got out of bed. However, he recounted the events of the previous night when he had been in the bedroom. He had got out of bed in order to go to the bathroom. That journey involved getting out of bed, going to the right along the length of his bed and then moving diagonally from the end of his bed to the right in order to reach the door. The bathroom was somewhere relatively close by. Mr Pollock said that he would not feel his way along the bed since he knew the rough distances involved. On the previous night he had tried to make his way to the bathroom. As Mr Pollock put it his “internal compass” went wrong. Instead of going along the side of his bed, he walked away from his bed. He believed he was going in the right direction. He only realised his mistake when he came into contact with the bed on the other side of the room. When he reached out he touched the head of Mr Murphy. That must mean that his route on the previous night had taken him past and relatively close to the window of the bedroom. Mr Pollock said that “the most likely explanation is that I was again going to the bathroom but I fell out the window prior to getting to Martin (Murphy) this time.”[42]Mr Grime Q.C. argues that the scenario put forward by Mr Pollock is anything but likely; rather it is inherently improbable. It is said that the loss of the internal compass is not something described by Mr Pollock or his fiancée as part of any pattern so that it in fact was intrinsically unlikely. It is said also that Mr Pollock would have used additional care on the night of his fall to avoid a similar event i.e. he would have used the bed as a guide to the proper route. I disagree with this analysis. Whether Mr Pollock was habitually losing his internal compass is of little account. He certainly did so on the previous night after he had gone to sleep in this bedroom. There is every prospect that the same thing occurred on the night of his fall. Given that it had happened once, it is not at all improbable that it happened again. As to the proposition that Mr Pollock would have used more care to avoid walking in the wrong direction, this would have more force if the issue had arisen when Mr Pollock was fully awake and alert. If Mr Pollock is right in his “likely explanation”, he did what he did having just woken in order to go to the bathroom. In that situation it is not unlikely that he would not have taken what would have been for him unusual precautions. Plainly I have no direct evidence that Mr Pollock mistakenly walked towards the window in the belief that he was en route to the door. But I am satisfied that it is a perfectly sensible explanation for his presence near the window. Mr Lovegrove’s evidence provides an explanation for how he then came to fall through the window. Mr Brown’s concession in evidence allows for Mr Pollock’s forward momentum to have taken him to a tipping point on the window sill.[43]Mr Grime Q.C. argues that there are at least two other possible explanations for Mr Pollock’s fall from the window. Those possible explanations do not involve any breach of duty on the part of the Cahills. The burden is on Mr Pollock to prove that his fall was caused by a breach of duty. Since there are possible scenarios whereby Mr Pollock fell which involved no breach of duty and which Mr Pollock cannot disprove, his claim must fail. Mr Grime Q.C. relies on the well-known speech of Lord Brandon in The Popi M [1985] 1 WLR 948, in particular the passage in which he discussed the applicability of the dictum of Sherlock Holmes to proof in legal proceedings:
“My Lords, the late Sir Arthur Conan Doyle in his book "The Sign of Four", describes his hero, Mr. Sherlock Holmes, as saying to the latter's friend, Dr. Watson: "how often have I said to you that, when you have eliminated the impossible, whatever remains, however improbable, must be the truth?" It is, no doubt, on the basis of this well-known but unjudicial dictum that Bingham J. decided to accept the shipowners' submarine theory, even though he regarded it, for seven cogent reasons, as extremely improbable. In my view there are three reasons why it is inappropriate to apply the dictum of Mr. Sherlock Holmes, to which I have just referred, to the process of fact-finding which a judge of first instance has to perform at the conclusion of a case of the kind here concerned. The first reason is one which I have already sought to emphasise as being of great importance, namely, that the judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take. The second reason is that the dictum can only apply when all relevant facts are known, so that all possible explanations, except a single extremely improbable one, can properly be eliminated. That state of affairs does not exist in the present case: to take but one example, the ship sank in such deep water that a diver's examination of the nature of the aperture, which might well have thrown light on its cause, could not be carried out. The third reason is that the legal concept of proof of a case on a balance of probabilities must be applied with common sense. It requires a judge of first instance, before he finds that a particular event occurred, to be satisfied on the evidence that it is more likely to have occurred than not. If such a judge concludes, on a whole series of cogent grounds, that the occurrence of an event is extremely improbable, a finding by him that it is nevertheless more likely to have occurred than not, does not accord with common sense. This is especially so when it is open to the judge to say simply that the evidence leaves him in doubt whether the event occurred or not, and that the party on whom the burden of proving that the event occurred lies has therefore failed to discharge such burden.”
[44]In this instance Mr Grime Q.C. argues that two of Lord Brandon’s three reasons are apposite. First, the evidence in this case is – like it or not – very unsatisfactory. Second, not all of the relevant facts are known. It is said that there is no reason to prefer the accidental fall from the window over deliberate leaning out of the window followed by over-balancing and/or sleep-walking involving Mr Pollock believing for whatever reason that he was climbing out of a hatch. The first scenario would involve a deliberate act by Mr Pollock followed by misjudgement on his part about how far he could lean out of the window. The second scenario would mean that Mr Pollock’s blindness was irrelevant to his fall.[45]That argument only can prosper if the alternative scenarios are genuine possibilities. I am quite satisfied that they are not. The suggestion that Mr Pollock leant over the window sill to speak to those sitting below whether to remonstrate with them for making too much noise or simply to say hello to the new arrivals is untenable. First, Mr Pollock did not know that there was a window at that point in the room, still less that the window was open. Second, such an action would indicate some deliberation i.e. more than a sleepy attempt to find the bathroom. There is no reason why Mr Pollock would have overbalanced if he deliberately had gone to the window to make contact with those below. Third, the expert evidence does not allow for simple overbalancing at the window sill without forward momentum as a sensible possibility. Fourth, one might have expected Mr Pollock to have made himself known to those below before he leant so far as to overbalance. There is no evidence at all that he did so. The deliberate leaning followed by overbalancing as a scenario is without any foundation.[46]The second possibility put forward is that Mr Pollock was in a state of reduced consciousness such as sleepwalking. There is no evidence that Mr Pollock was prone to sleep walking. The only direct evidence on the issue comes from Mr Murphy in his witness statement in which he said “I am not aware of Mark having any history of sleep walking.” Mr Pollock and Simone George were asked about sleep walking in the context of a press release issued on behalf of Mr Pollock and press reporting of the event. Neither was asked if Mr Pollock in fact had any previous experience of sleep walking.[47]The basis for the suggestion that sleepwalking was a possible explanation for the fall essentially comes from a press report which appeared in the Daily Mirror on about the 7th July 2010. It largely consisted of purported quotation from someone named Markham Nolan who had from time to time acted as a spokesman for Mr Pollock in relation to his adventure activities. The essence of the report was that on the day of his fall Mr Pollock was exhausted due to his exertions in the Round Ireland yacht race, that after his fall Mr Pollock did not lose consciousness and spoke to his friends saying something about sailing and that in a semi conscious state he may have thought that he was climbing through a hatch on his yacht when in fact he was climbing through the window.[48]I heard no evidence from Mr Nolan. I have no direct evidence that he said what is reported in the Daily Mirror. I do have direct evidence from Mr Pollock about the effect on him of the Round Ireland yacht race. He agreed that it was a tiring event. However, it had concluded some days prior to his fall and he was no longer affected by it. Mr Pollock also said that he did lose consciousness. There is no evidence to the contrary. There was evidence that at one point Mr Pollock after his fall said something about being in eighth place. Whether this was a reference to the yacht race is speculative. Mr Pollock had no recollection of saying this. His only observation was that his yacht had not finished in eighth place.[49]Simone George provided a clear explanation as to how the speculative theory involving Mr Pollock believing that he was climbing through a yacht hatch evolved. Those at the scene considered that, because the window was on the latch, Mr Pollock could not have fallen out. From that the belief grew that, if he did not fall, he must have climbed out of the window. Someone suggested “maybe he thought he was on the boat and he was climbing out through the hatch.” That suggestion was bolstered by the fact that Mr Pollock had said something which people took to be a reference to a position in a race. It then was assumed that this was a reference to the yacht race. As Simone George put it “that had all been put together to make, in the absence of anyone actually knowing, the theory of the week.” The evidence in the case demonstrates that Mr Pollock could have fallen out of the window so the underlying basis for this speculation is fundamentally flawed. It is far from clear that Mr Pollock was talking after his fall about a race and there is no evidence at all that he was talking about the yacht race. Mr Pollock explained that, had he climbed out of the window in the belief that it was a yacht hatch, his actions would have led to the window being ripped out of the wall. That may have been an exaggeration but I accept that the window would not have been left in the state it was had Mr Pollock levered himself up as if he were climbing through a hatch. I am quite satisfied that the scenario involving reduced consciousness or sleepwalking is baseless.[50]I am satisfied on a balance of probabilities that Mr Pollock fell through the open window as he was trying to make his way to the bathroom having just woken. He had lost his internal compass. When he got to the window he believed that he was at the door. He had forward momentum because of that belief. Whether he lost his balance before he reached the window or in the act of reaching forward towards what he believed was the door is not possible to say. That does not matter. It is not necessary for me to be satisfied precisely how the loss of balance and consequent forward momentum occurred. The result was that Mr Pollock, who did not know that there was a window there or that it was open, fell to the ground below.

Was there a breach of duty on the part of the Defendants?

[51]There is no dispute about the duty of care owed by the Cahills to Mr Pollock i.e. the common duty of care as occupiers pursuant to Section 2 of the Occupiers Liability Act 1957, the relevant passage of which is as follows: (2) The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there. (3) The circumstances relevant for the present purpose include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases—(a) an occupier must be prepared for children to be less careful than adults; and(b) an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so. It is argued on behalf of Mr Pollock that the reference to “such a visitor” requires the occupier to have regard to any known vulnerability. That is clearly correct. If Mr Pollock had been a sighted person, the open window would not have rendered the premises unsafe. It was the fact that he was blind that made them so.[52]Mr Grime Q.C. argues that, although a fall through the window was possible (as shown by what in fact happened), the likelihood of it occurring was not “a real risk”; rather it was “a mere possibility which would never influence the mind of a reasonable man.” Thus, the Cahills took such care as was reasonable in the circumstances to see that Mr Pollock would be reasonably safe. It is said that there were no danger or risk features to the window, that Mr Pollock was hugely competent at coping with his disability, that no-one felt it necessary to take precautions to protect Mr Pollock in relation to the window and that Mr Pollock himself did not ask about or make requests in relation to the window.[53]Obviously the window was not dangerous per se although the sill was lower than many sills in the domestic setting. However, an open window did create an obvious risk for a blind person, particularly when it was on the second storey of the house with nothing to prevent a fall to the ground below. As is admitted in the Defence it was reasonably foreseeable that a person who fell from the window might sustain serious injury. Mr Pollock was and is an adventurous and resourceful man. But he was a blind man. His adventure activities were carried out after very careful risk assessments and always with the assistance of others. The fact that he was a resourceful blind person was irrelevant to the risk created by an open window. The evidence of Mrs Cahill as the person who opened the window was that she did not think of it as a risk and that she had no concern about the safety of an open window in the room. She did understand that Mr Pollock required particular care because she was concerned about the stairs. If it is a fact that she did not think of the open window as a risk, she was wrong to take that view. It is of note that she accepted that she would not have allowed a child to be unattended in the bedroom with an open window. However, the evidence of what Mrs Cahill said to Simone George and her sisters (which I shall not repeat) demonstrates that the risk was apparent to her albeit that she clearly misjudged the extent of the risk. The views of others in the house are of limited relevance. They were not occupiers and did not owe any duty of care. The argument in relation to Mr Pollock not having investigated the issue of the window is to some extent based on the proposition that he knew of the existence of the window. As already indicated I am satisfied that he did not. The parallel drawn with Mr Pollock’s behaviour at hotels when he would ask a member of hotel staff to explain the windows in his room to him is false. When Mr Pollock was at a hotel, he was a stranger and the hotel would not know he was blind. Mrs Cahill was fully aware of his position. I am satisfied that the Cahills failed to discharge the common duty of care they owed as occupiers. The open window was a real risk to Mr Pollock. They created that risk. They ought to have appreciated the risk and taken steps to prevent it by keeping the window closed or by warning Mr Pollock about it with particular reference as to the extent of the drop from the window.

The actions of Mr Pollock

[54]I do not intend to address the suggestion that Mr Pollock caused his fall by leaning too far out of the window. That simply does not arise on the findings of fact I have made. The issue raised by the Defence are volenti (as incorporated into the liability of the occupier by section 2(5) of the 1957 Act) and contributory negligence.[55]For section 2(5) of the 1957 Act to have any purchase there must have been a willing acceptance of the risk by Mr Pollock. It is not immediately obvious how Mr Pollock could have accepted a risk of which he knew nothing. It is argued that the risk he accepted was the risk that the window may have been open. I do not consider that this is the kind of situation to which volenti – whether under the statute or at common law – applies. In any event and as a matter of fact Mr Pollock did not accept that risk.[56]Contributory negligence is put on two bases: failing to make the inquiry of the kind Mr Pollock made in a strange hotel; failing to use his bed as a guide to the door. For the reasons already given when considering those issues I do not consider that Mr Pollock failed to take reasonable care of his own safety in either respect.

Conclusion

[57]This is an unusual case. All those involved were close friends. The process of the hearing was clearly difficult for all concerned. Everyone had great sympathy and regard for Mr Pollock. My task has been to set aside the personal issues involved. I have been concerned solely with an assessment of the evidence and the proper conclusions to be drawn from that evidence however unpalatable they may be to the parties. In the result I am satisfied that Mr Pollock has proved that his injury was caused by a breach of duty on the part of the Defendants. There will be judgment for Mr Pollock on the issue of liability.

Cited in 1 later judgment