The very unfortunate case of Mrs Hutch1 who suffered
paraplegia as a result of a fall from a balcony, was recently
reported in the media. The decision to dismiss the claim seems to
have rested heavily on the findings of intoxication, but it is
instructive to look more closely at the judge's findings in
order to appreciate all of the factors in play.
The plaintiff was certainly found to have been very intoxicated
when she toppled over a balustrade at the second floor town house
she was renting from the defendant. She failed in her claim for
damages after the judge found she had 'leaned too far and
tumbled over' the balustrade because of her severe
The plaintiff argued that after sharing a celebratory bottle of
sparkling wine with her son on Christmas morning, she had occasion
to search for a handbag upstairs. While doing so, she leant over
the balustrade and fell. She suffered severe head and spinal
injuries resulting in paraplegia.
The plaintiff sued the defendant, claiming he had breached the
duty of care owed to her as tenant of the premises as the
balustrade was too low and constituted a danger. The defendant
denied he was in breach, instead arguing the accident was caused by
the plaintiff's intoxication.
It was acknowledged that a landlord owes a duty of care to the
lessee to take reasonable care to avoid foreseeable risks of harm,
but here there was found to be no breach and the landlord was not
In contrast, the plaintiff's blood alcohol level was found
to have been six times over the legal limit of 0.05. The judge
found her alcohol consumption must have been much greater than she
said it was. This raised doubts about the plaintiff's
credibility, which although not crucial to the decision, were
relevant to the finding as to how the fall had occurred.
The significance of the findings of intoxication was twofold.
First, it was found to be the cause of the fall, as distinct from
any defect associated with the balustrade. Second, if the plaintiff
had succeeded in her claim, for example, on the basis that the
balustrade was too low, the judge found that the plaintiff's
conduct had contributed to the fall to the extent of 90% and
evidently limited his finding of contribution to that figure only
because a 100% contribution finding is not available under the
Civil Liability Act.
What the finding of intoxication does not do, however, is
provide a defence to the claim of negligence based on an alleged
defect of the balustrade. This is worth noting as it then becomes
apparent that the disposition of the claim, would have been
possible without the finding of intoxication, simply on the basis
of the judge's finding that the balustrade was not too low and
the defendant was not in breach of duty.
The plaintiff's intoxication was obviously not to be
ignored, but was not legally significant to the dismissal of the
claim. Contributory conduct and a defendant's breach of duty,
although related, each require separate consideration and separate
application to the facts of a claim.
Ultimately, the disposition of the case on the basis that there
was no breach of duty by the defendant was relatively
straightforward. On the other hand, had there been a finding that
the balustrade was too low, the resulting legal argument over the
cause of the fall would have been challenging for both sides.
This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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