Mr Perez had returned home to a Mews property that he rented from a private landlady. Together with the owners of the other Mews properties, that landlady had decided to install some gates across the development. The installation process commenced in May 2014 and was not completed until February 2015.
On the night of 4th February 2015, Mr Perez returned home to find that the gates had been activated and he was therefore locked out. He took the decision to climb over the gates. In doing so, Mr Perez fell from the top bar of the gate and landed on the concrete pavement below.
Mr Perez suffered a number of injuries including a moderate traumatic brain injury and several spinal fractures. Reports from experts in A&E Medicine, neurology, ophthalmology, psychiatry, spinal surgery, shoulder orthopaedics and neuropsychology were being commissioned. As such, the full value of the claim remains unknown.
Perhaps surprisingly, the claim was not issued against Mr Perez’s landlady. Instead, the claim was brought solely against Savills as the landlady’s letting/managing agent. Savills were sued on the basis that Mr Perez’s fob for the gate had been dropped into its office on the day before the accident.
Josh pleaded the defence and denied liability. Significantly, the private landlady had not told Savills that the gates were to be operational on the next day and neither had she provided the access codes for the gate. It was therefore disputed that Savills owed any duty of care to the Claimant as it simply acted on the instructions of Mr Perez’s landlady as its principal. It was also denied that there could have been any breach of duty because Savills had no reason to know that Mr Perez required the fob by the next day.
Josh also pleaded that Savills could not possibly have foreseen either the chain of events that led to the Claimant climbing the gates, or any injury as a result. At trial, Josh submitted that Mr Perez had acted recklessly and without any regard for his own safety, such that he alone was responsible for his injuries.
In a reserved Judgment on the issue of liability, which was given on 20th December 2019, Her Honour Judge Baucher dismissed the claim in full and found for the defendant on all of the above issues.
Judge Baucher agreed that imposing a duty on the landlord’s agent would be to ignore the agency context and pave the way for indeterminate liability on letting agents for matters that were properly the responsibility of the private landlord. Judge Baucher agreed that Savills could not have been in breach of duty as they had only held the fob for one day before the accident and had not been told that the gates were to be made operational the following day.
Finally, Judge Baucher accepted Josh’s submission that Mr Perez’s action in climbing over the gate was a ‘folly’ and ‘reckless in the extreme’. The Judge found that Mr Perez acted in haste to get into his flat and had not tried all the reasonable options open to him (including buzzing the flats of his neighbours, shouting for assistance or using the local amenities that included a hotel). Mr Perez’s plight was one of inconvenience but not emergency.
The Judge also rejected Mr Perez’s incredible evidence that spears along the top of the gates were simply decorative. Instead, the Judge found that Mr Perez’s evidence on the point had been an attempt to persuade her away from the fact that he knew perfectly well that the gates were designed not to be climbed over.
The claim, which was dismissed in full, has attracted some media attention both during and after trial:
Josh was instructed by Rhys Sanchez, Partner, at DWF London.