Managing the homes of vulnerable adults

Antonia Ford reports on securing an award of damages following a personal injury claim brought by a community nurse carrying out a visit to a vulnerable adult’s recently-fumigated home, in a case where the existence of a duty of care was in dispute.

The Claimant, a community nurse, was injured conducting a regularly scheduled home visit for a vulnerable adult (the Occupant). Unbeknownst to her the Occupant had been transferred out of the property and toxic fumigation had been undertaken at the instruction of the Council. The Council was both the Landlord and the provider of adult social services. No warning signs were displayed and despite a multidisciplinary programme being in place for the Occupant the community nursing service was not notified of the impending fumigation.

The Claimant, having spent a significant amount of time searching the property for the Occupant, sustained skin irritation and developed reactive airway dysfunction syndrome.

The actual fumigation had been outsourced to a specialist company but there was no evidence that they had been told that the occupant was a vulnerable adult or that a variety of service providers could gain access to the property in the Occupant’s absence.

The Defendant denied liability and argued that they had no duty of care towards the Claimant. They further argued that they had used the services of a competent contractor and that any duty to warn rested with the Occupant.

The Defendant tendered witness evidence from the Pest Control and Specialist Cleaning department but failed to provide evidence from either the Housing Department or Adult Social Services. Under cross examination it became clear that it was these two departments who had actually controlled the Occupant’s transfer and the fumigation timetable. It was also clear that highly relevant documentation had not been disclosed in breach of their disclosure obligations.

On behalf of the Claimant, it was argued that the Defendant in taking control of the property became the occupier for the purposes of the Occupiers Liability Act 1957 (OLA 1957). In the alternative that the injury was foreseeable and the relationship between the parties was sufficiently proximate to satisfy the test in Caparo Industries Plc v Dickman [1990] 2 A.C. 605.

In entering judgment for the Claimant, the Judge accepted that the Defendant was aware that lawful visitors could gain access to the property even in the absence of the Occupant. Further, in the absence of adequate disclosure the Court concluded that the Defendant either failed to conduct an appropriate risk assessment or failed to communicate the existing risks to either the Pest Control Department or the fumigation contractor.

The Judge rejected submissions that liability arose under the OLA 1957 but accepted the claimant’s arguments that the threshold in the first two stages of the Caparo test had been reached. Further, in considering the third limb the Judge accepted that it was fair to impose liability.

The case is a useful reminder that the common law of negligence and the principles which govern its application must not be forgotten in personal injury claims even where a statutory duty might, on first consideration, appear to provide a clearer prospect of success.

It is also a salutary reminder to Defendants that, whilst the burden rests with a Claimant to prove their case, a Defendant bears the burden to prove a positive defence.

Antonia Ford is a barrister at Pump Court Chambers. She acted for the Claimant in this case.