The recent Court of Appeal case of Morcom v Biddick  EWCA Civ 182 raises very interesting questions about duties of care, causation and reliance.
Mr Morcom is a skilled tradesman with extensive experience in the building trade. Mr Biddick (now deceased) was an 80 year old family friend of Mr Morcom’s. On 4th December 2010 Mr Morcom attended Mr Biddick’s house to fit loft insulation to the top side of the loft hatch.
Mr Morcom accepted that he was in a position to risk-assess the task and Mr Biddick was not. Mr Morcom was happy to fix the insulation from inside the loft, although he recognised the hatch could not take his weight and there was a risk of falling if he overstretched.
The hatch door was held closed by a latch which could be opened and closed from the floor below, using a pole. Mr Biddick suggested that the latch might come loose through vibration. This would not have occurred to Mr Morcom had Mr Biddick not mentioned it.
Mr Biddick suggested he stand below the hatch, holding the pole, keeping the catch closed. Mr Morcom was not relying on Mr Biddick to take any weight by way of the pole. The telephone rang and Mr Biddick left his post. Shortly after, Mr Morcom fell through the hatch sustaining serious injuries.
The judge rejected the possibility that the latch worked itself open through vibrations, given the expert evidence and Mr Morcom’s evidence that he did not think this was a serious possibility. The judge thought that the most likely explanation was that the latch was not properly closed, and that it opened when Mr Morcom applied pressure to the hatch. The judge held that this happened because when he left his post Mr Biddick had inadvertently caused the latch partially to open. These findings were challenged unsuccessfully on appeal.
It was submitted for Mr Biddick that Mr Morcom was not relying on him to hold the pole in place. The risk that the hatch would not take his weight was obvious and indeed was foreseen by Mr Morcom. The Defendant relied on Tomlinson v Congleton. The Court of Appeal distinguished Tomlinson on the basis that Mr Biddick had chosen to participate in the task. If he had let Mr Morcom get on with it there would have been no duty. But having involved himself in the activity, Mr Biddick assumed responsibility for keeping the latch fully closed. It was foreseeable that if he neglected this task, Mr Morcom could be injured.
The Defendant contended that there was no reliance by Mr Morcom on Mr Biddick. Mr Morcom did not expect Mr Biddick to take any weight, or consider his position to be “safety critical”. The Defendant submitted that reasonable reliance was a crucial part of the duty of care. The Court of Appeal rejected this. Mr Biddick had chosen to involve himself to a limited but important extent. Once he had taken it upon himself to ensure that the latch remained closed, he assumed a duty to undertake this carefully, whether or not Mr Morcom saw this as an element in his own safety. The Court of Appeal followed Perrett v Collins  Ll. R. 255, where a technical inspector who failed properly to inspect a light aircraft was held liable to a passenger injured because of technical failures even though the passenger did not know of or rely on the inspection.