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When the Building Regulations butt into your personal world

LEGAL MATTERS

We should all be familiar by now with the tale of Margaret Stewart, who fell though a chair at a dinner party and threatened to sue her hostess.

In case you are not, her solicitor wrote to Miss Martin, owner of the chair, suggesting she had breached her duty under the Occupier's Liability Act 1957.

The Act creates a duty of care towards lawful visitors. Having invited Miss Stewart into her home, Miss Martin owed her a duty to 'take such care as in all circumstances of the case is reasonable' to make sure that she was 'reasonably safe in using the premises'.The duty applies as much to householders as it does to other building owners.

Sitting your guests on a chair you believe to be safe is one thing. But what if, just to invent an unlikely example, in the privacy of your home you have opted out of installing a balustrade that complies with the Building Regulations?

The Building Regulations are the vehicle by which standards of construction are maintained to protect the public. They are enforceable by local authorities and failure to comply is an offence. But does a private individual have the right to sue for breaches of the regulations?

The regulations are a product of the Building Act 1984 and we must look to the Act to see whether a duty is owed under which a private individual can sue. Many Acts of Parliament include duties on which, if breached, private individuals can rely.

For example, the Highways Act 1980 says highways authorities have a duty to maintain their roads and allows claims to be brought by people who trip up and injure themselves as a result of disrepair.

Section 38 of the Building Act says that a civil action can be brought for breach of the regulations for damage that includes injuries. But the section has never been brought into force and cannot be used.

Although a guest who falls foul of your balustrade (or lack of it) cannot sue you for breach of the Building Regulations, they could try using failure to meet the regulations to support an Occupier's Liability Act claim. Not meeting the regulations, the argument goes, is evidence of having failed to take such care as is reasonable in all the circumstances.

It is one thing if your balustrade did comply once.The Court of Appeal considered this aspect of the problem in a 1997 case, McGivney v Golderslea . When Gary McGivney fell, his hand went through a pane of glass that had complied when the building was built but would not have met standards at the time of the incident. It was agreed that the building's owner did not have a duty to upgrade the glass by reason of the regulations being updated.

But Mr McGivney claimed that the failure to bring the glass up to date supported his claim that the owner had not taken such care as was reasonable. The Court of Appeal decided that the Occupier's Liability Act duty had not been breached by a failure to upgrade a pane of glass that complied at the time of building.

This conclusion seems sensible. Had it gone the other way, building owners might arguably have been obliged to look carefully at their buildings each time a new standard was introduced to see whether they needed to update anything.

It is another matter if your balustrade never complied. In Ward v Ritz Hotel (London) Ltd (1992), the Court of Appeal considered Mr Ward's fall from a balcony that had been resurfaced.This procedure had left the balustrade less than three feet above floor level, even though the British Standard recommended a greater height at that time.

Although the British Standard provided guidance only, the Court of Appeal concluded that because such standards represent the consensus on sensible safety precautions, failure to meet the height recommendation was strong evidence that reasonable care for Mr Ward's safety had not been taken - Mr Ward succeeded.

A similar approach would probably apply to a failure to meet the approved guidance behind the regulations or, indeed, a breach of the regulations themselves.

Sorting out your balustrade or preventing guests from using your non-compliant stair may be the best options.

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