Landlord and tenant: Duty of care

Landlords installing lockable windows with removable key - tenants locking windows and hanging key in hall - tenants unable to reach key to unlock windows to escape a fire - whether landlords entitled to rely on Bolam test - whether landlords negligent in choice of window - claim dismissed - appeal dismissedAdams and another v Rhymney Valley District Council: Court of Appeal: Morritt LJ, Sedley LJ, Sir Christopher Staughton: 20 July 2000

The defendant council were the landlords of a two-storey terraced house at 103 Jubilee Road, New Tredegar, Wales.

The house faced the street, and at the front there was a 10ft drop from the first-floor window to the pavement.

At the back of the house the drop from the first-floor windows was much greater because of the slope of the valley.

In 1989 the council replaced the windows in the terrace with hardwood-framed windows of standard design as part of a refurbishment of all of their 9,000 dwellings.

The windows used in the house were of type F1, and were double-glazed with toughened glass.

The handles were equipped with a lock operated by a removable key.In 1991 the claimants, a husband and wife, moved into the property with their three children aged seven, four and three.

The claimants locked all the main lockable windows to prevent the children from falling out and to avoid burglary, and hung the keys in the hall.

On 15 October 1991 a fire broke out in the house.

The claimants were unable to open the main bedroom window and as a result their three children died.

The claimants issued proceedings against the council at common law and under the Fatal Accidents Act 1976.

It was common ground that: (i) had the claimants been able to open the window the children would, in all probability, have escaped; and (ii) the council, as a provider and refurbisher of housing, had a legal duty to design and build with due regard to the safety of occupiers and visitors (see Rimmer v Liverpool City Council [1984] 1 EGLR 23).

The judge held that the council were not liable.

The issue raised on the claimants' appeal was whether in deciding to install hardwood windows of the F1 design, the council had taken such care, as was reasonable in the circumstances, to ensure that those living in the property were safe from personal injury.Held: The appeal was dismissed by a majority.1.

The judge had not erred in adopting the test in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, namely that a person 'is not guilty of negligence if he is acting in accordance with a practice accepted as proper by a responsible body of...

men skilled in that particular art'.

Although the council did not have the qualifications of a professional in the relevant field of activity, and had not gone through the process of reasoning that a qualified professional would consider before making a choice, they were not prevented from relying on the Bolam test.

2.

In the instant case there were three factors of importance in relation to the choice of windows: (i) the need to provide a means of escape; (ii) the need to prevent children climbing or falling out of the windows and; (iii) the need for a property to be protected against burglars or thieves.

The council's decision to install the windows of type F1 had not been negligent.

It was one that skilled and careful people had reached in a majority of cases in the country, and in those circumstances there had been no negligence in the council's failure to consult with others.

Furthermore, the design of the windows had not placed on the council an obligation to install a smoke alarm.Wyn Williams QC and Robert Harrison (instructed by Hugh James Ford Simey, of Bargoed) appeared for the claimants; Ian Murphy QC and Lloyd Williams (instructed by Dolmans, of Cardiff) appeared for the defendants.