A couple ordered to pay multi-million pound compensation after blind adventurer Mark Pollock fell out of a window during the Henley Regatta have failed in a final bid to overturn the decision.
Mr Pollock, the first blind man to reach the South Pole, sued his friends, Enda and Madeline Cahill, after the 25-foot plunge onto their patio in Remenham Lane.
The incident took place in July 2010 soon after his return from the 1,400-mile Round Ireland Yacht Race and just weeks before he was due to marry his fiancée, Simone George.
The 39-year-old Commonwealth Games medal winner, of Ranelagh, Dublin, was staying with the couple when he fell through the window of his upstairs bedroom.
He suffered catastrophic spinal injuries which left him paralysed and confined to a wheelchair.
It was a “very sad” and “puzzling” case, Lord Justice Moore-Bick told London’s Appeal Court on Tuesday.
After a hearing in July last year, Mr Justice William Davis said he was “wholly satisfied” that Ms Cahill had left the window open.
The judge said that Mr Pollock probably fell through it as he was trying to make his way to the bathroom, having just woken.
And he ruled: “I am satisfied that the Cahills failed to discharge the common law duty of care they owed as occupiers.
“The open window was a real risk to Mr Pollock. They created that risk.”
Stephen Grime QC, for the Cahills, argued that the judge’s ruling was against the weight of the evidence.
‘Resourceful’ man
He should have taken into account that Mr Pollock was a “resourceful” man and had stayed in the same room before, argued the barrister.
An “ordinary domestic occupier”, like Mrs Cahill, would not have realised an open window on a warm day caused a particular danger to anyone.
“Why should she have foreseen that something very unusual was going to take place?” asked the QC.
But Lord Justice Moore-Bick said it was “clearly open to the judge to make the finding he did” about how Mr Pollock fell out the window.
He said the “important questions” were whether Ms Cahill left the window open and whether she should have foreseen the risk of doing so.
“In my view it is essentially a matter for the trial judge who has heard all the evidence from the witnesses to determine what was and was not foreseeable,” said Lord Justice Moore-Bick.
The judge was “entitled to find that Mrs Cahill had identified risk, albeit not the degree of risk which existed”.
“In my view the judge’s conclusions were open to him on the evidence. For these reasons I refuse permission to appeal.”
He said he had “enormous sympathy” for Mr Pollock but also for the Cahills, for whom it was a “really unpleasant” thing to happen at their home.
Mr Pollock lost his sight in 1998 at the age of 22 but went on to win bronze and silver medals at the 2002 Commonwealth Games.
He has taken part in extreme marathons and Ironman events and, since his fall, has helped pioneer the use of robotic legs.
He limited his claim to a maximum of £2 million, the limit of the Cahill’s household insurance, with the express intention of ensuring that the couple did not have to pay out themselves.
- This article was amended on September 6th 2018