A woman fell 30ft into a well on a viewing resulting in the estate agent being fined £200,000 + expenses
The Wiltshire estate agent pleaded guilty last week at Swindon magistrates court to a charge of breaching the Health and Safety at Work etc. Act for failure to fulfil their duty to a person other than an employee.
In April 2016 a couple, Lucy and James Driver, were on an open house viewing and were apparently encouraged by the agent to have a good look around. They went into the garden and the Mrs Driver took a step off the garden path to look over the fence at the neighbour’s garden. She stood on a piece of board which collapsed and she fell 30ft into a well. She was completely submersed by water for a short while before surfacing. She managed to stay afloat by hanging onto a hosepipe which was lowered down to her by neighbours. After more than an hour the Fire Service facilitated the rescue. The woman was told by the hospital that ‘her body had suffered as if she had been in or near an explosion and that she had whole-body whiplash’.
The house was a probate sale and there was no one to question about the property and any potential risks. However a previous potential buyer advised the agents some three days before the open house event that there was a well in the garden. One of the agent’s employees subsequently visited the property and saw a wooden board covering the well. The board was not lifted and the negotiator assumed there was a metal grill covering – which was not the case.
The prosecution was brought by the Health and Safety Executive (HSE) who were concerned, among other things, that the agent had no process in place for a risk assessment of premises.
Agents have a duty of care to ensure that applicants they show round properties are not exposed to risk. Their liability arises when the agent knows or should have known about a risk and taken appropriate steps to remove or reduce the risks. The level of action taken has to be commensurate with the assessed risk. Measures could include restricting access to a property or parts of a property, or oral or written warnings for less severe issues. Additional care needs to be taken when families with children are viewing. In essence the agent must be able to demonstrate due diligence, in other words, taking all reasonable steps to prevent an offence occurring.
The Judge found that the agents’ level of culpability and the risk of harm was high. He concluded that the well represented a risk of serious injury or death. The fine imposed was reduced from £300,000 in view of the fact that the agent pleaded guilty. The agent was also order to pay the HSE costs of £2,474. In addition Mrs Driver will be able to make a civil claim for damages.
Principals, partners and directors should review their agencies processes for assessing risks on viewings. Staff should be trained and updated on assessing risks and written evidence of the assessment should be held on the property file.