Account of the case
On 23 March 2021 at about 15:15, the injured party A (born in 1976) was on her way to the child health clinic with her one-year-old baby, when she fell, with the baby in her arms, through a broken glass door while trying to open the door leading to the parking place passage, pushing the door with her hip and turning the handle at the same time. According to A, she had not noticed that the door had been damaged, nor were there any signs or warning indicating that the door was broken. She fell through the door and hurt herself, and got some cuts in her hands, among other injuries. A’s baby also suffered injuries due to the fall.
Compensation for the personal injuries suffered were claimed from the property owner’s general liability insurance.
In their decision, the Insurance Company refers to the information provided, according to which the glass of the armoured door was probably broken through an act of vandalism in the evening of 22 March 2021, and the person on duty at the property maintenance company had noticed the broken door on 23 March 2021 at 00:43, also cleaning pieces of splintered glass away on that occasion. In the morning of 23 March 2021, the property owner had called a service company to fix the door. According to the company, the door did not require any taping since the plastic film in the door kept the glass together. The repair company also confirmed that the plastic film will hold the glass in place until it is replaced. The company states that the cracking had turned the glass grey, and it was no longer transparent, and this is a further reason whereby it was easy to notice that the glass was broken. In its decision, the Insurer also points out that A had tried to pass the door in the wrong direction, and had expressly tried to push the door with her hip. Based on these factors, the Insurance Company finds that the property owner had seen to the maintenance of the property appropriately and as required by the circumstances, and the damages caused cannot thus be compensated from the property owner’s general liability insurance.
A was dissatisfied with the decision of the Insurer and requested that the Insurance Complaints Board issue a recommended solution in her case.
In her complaint, A repeats the account of the events and underlines the fact that the door glass showed no sign of being broken. A also reports how difficult the handling of the compensation had been with the property owner, and that in the end, the property owner’s lawyer communicated that the damages will not be compensated from the property owner’s general liability insurance, either. According to the Insurer and the property owner, the latter had not neglected the duty of care in the case at hand.
A finds that it is evident that the property owner has, indeed, neglected the duty of care as no warning for the broken door was given. A also points out that it is typical of child welfare clinics that the doors open by pushing, making them easier to open if one uses them with the pram. According to A, the appearance of the glass no way indicated that it was broken since – contrary to what the Insurer maintains – there was no glass left on the door. After A’s accident, the child welfare clinic posted a warning on the door and the door was provided with warning tapes. A has also presented photos which show that when the door is entirely of clear glass it is difficult to distinguish the glass or the lack of it.
A demands euro 10,706.76 in compensation for treatment and travelling expenses incurred as well as for the temporary handicap.
Reply by the insurance company
In its reply, the Insurance Company repeats the history of the case at hand referring to the policy terms and conditions applicable to the case.
According to the Insurer, the property owner had taken appropriate care of the property maintenance when the property management company had, after noticing the damage, taken the necessary measures and cleaned the glass splinters from the ground and had booked a door repair person as soon as possible after the glass had broken. The Insurer finds that the tapes on the door were attached only after the injury since there was no glass on the door at that point. The Insurer adds that the injury had been caused by A trying to push the door with her hip whilst the door was to be opened by pulling.
The Insurer adds that the door in question does not belong to the actual child welfare clinic area. Moreover, the state of the door was clearly visible since it was grey from cracking.
Therefore, as no negligence in the operation of the property owner could be identified, the general liability insurance was not applicable in view of a compensation related to the event.
Finally, the Insurer also comments the claims for compensation made by A and states that as far as temporary handicap is concerned, they are not in line with the recommendations by the Advisory Board for Personal Injuries nor the norms and instructions of the Claims Board for Traffic Accidents. Moreover, the Insurer states that they have not be provided with the full treatment reports of A and her child, necessary to define the handicap.
Hearing of the Policyholder
The Policyholder had no comments to make in the case at hand.
Formulation of question
In the case at hand, the question is whether the damage caused by the fall through the broken door should be compensated by the property owner’s general liability insurance.
The applicable norms of law and policy terms
Under Chapter 2 Section 1.1 of the Tort Liability Act, a person who deliberately or negligently causes injury or damage to another shall be liable for damages, unless otherwise follows from the provisions of the Act.
According to Clause 3.1 of the policy terms applicable to the case at hand, the insurance will cover the personal injury and property damage caused to another person in the area covered by the policy
- noted during the period of insurance, and
- for which the policyholder is liable under the valid legislation.
Under Clause 9.1. of the policy terms, the insurance will cover the damages that the policyholder is obliged to pay. The amount of the compensation is calculated in line with the regulations and orders related to the damages.
Evaluation of the case
In line with the established principles of tort law, the party maintaining a property has a liability that exceeds the usual culpability. The protection of the injured party has been enhanced but the liability is not, however, of the strict liability type, independent of fault. The party maintaining the property is found to operate under an underlined duty of care. The party in charge of property maintenance must take such care of the property that the safety of its users is not jeopardised. The burden of proof for the safe state of the premises lies with the party that is responsible for their maintenance.
Looking at case law, it has been found that the culpability requirement is met if the maintaining party neglects their obligation of care so that the user is put to danger. However, it is possible to be released from liability if the liable party has taken precautionary measures, necessary in view of the circumstances, and the damage has taken place irrespective of this. The release from liability is also possible in cases where the damage has been caused through a lack of safety caused by an external reason, where there has not been any time to repair it before the accident despite appropriate follow up.
Based on the information available to the Insurance Complaints Board, A has suffered an injury by falling through a broken door whilst trying to open the door by pushing. The door was broken during the previous night, as noted, and the property management worker had swiped splinters of glass away, and a repair person for the door had been ordered in the morning.
The Complaint Board finds that contradictory information has been provided as to whether the door had any glass or not in place at the time of the injury. According to A, there was no glass at all while the Insurer states that the door still had the broken glass in place, held by the glass protective films. Based on the information available to the Complaints Board, glass has ended on the ground after the door was broken since the guard who had noted the broken door had swept glass splinters and A had also got cuts from the splinters. The Complaints Board finds it feasible that the glass totally broke only after the repairman was ordered in the morning. For the sake of clarity, the Complaints Board notes that even if the glass was in place in the door frame, the property manager should have ensured that the door was safe to use, or in alternative, warn those moving there of the lacking safety of the door. According to the understanding of the Complaints Board, it cannot be considered unpredictable that an outsider using the door could be wrong about the direction of opening of the door, and that the door surface should also resist an attempt to open the door in the wrong direction. On the basis of the above, the Complaints Board finds that the property owner is liable to compensate the damages incurred by A and recommend that the Insurer pays damages from the property owner’s general liability insurance.
The claim of A for the damages incurred on 23 March 2022 amounts to the total of euro 10,706.70. The sum contains various treatment and travelling expenses and other expenses incurred because of the injury, such as extra childcare expenses. A has claimed 400 euro as temporary handicap which is a scar to the baby’s face, 2,000 euro for the cut in her own hand, 200 euro for acute pain in the hand, 6,000 euro for severe pain in the hip, back and legs and 1,000 euro for an acute stress reaction. In their reply, the Insurer states that it has not been provided with information, for the essential part, of the motivation of the expenses claimed by A. Therefore, the Complaints Board returns the case, as to the quantification of the claim, for the Insurer to clarify.
Based on the above grounds and the information available to it, the Complaints Board recommend that the Insurance Company compensates the damage caused in line with the policy terms.
The Insurance Complaints Board’s decision is unanimous.
INSURANCE COMPLAINTS BOARD