Alexander v Freshwater Properties Ltd [2012] EWCA Civ 1048
Ms Alexander was the tenant of a flat within a block managed by Freshwater. She was injured when the front door to the block shut on her hand. Ms Alexander bought proceedings against Freshwater and against the builder engaged by them to carry out a refurbishment of the block. She claimed that the automatic closing mechanism for the door was defective so that it was necessary to pull the external handle to properly shut the door. When the builder removed the handle during the course of the works this meant that the door could only be closed by grasping the edge and moving one’s fingers away before it fully closed. This is what Ms Alexander had been doing when her hand became trapped.
The trial judge held that the builder had been negligent. It should have been apparent to him that the self-closing mechanism was defective and that removing the handle would make it difficult to safely shut the door. The risk of injury was foreseeable, not remote and could easily have been avoided by fitting a temporary handle. The position of Freshwater was similar. If anything it was in a better position to know about the defective closing mechanism as it regularly visited the property. The judge therefore found both liable but ordered that the damages payable be split so that 75% were borne by Freshwater and 25% by the builder.
The Court of Appeal agreed on the issue of liability but not on apportionment of damages. It considered that Freshwater and the builder were equally liable. Both knew or should have known that the automatic closing mechanism was defective and that the removal of the handle was an accident waiting to happen. The builder could have fitted a temporary handle and Freshwater could have asked him to do so.