20 December 2019

Home Alone; as synonymous with the festive season as carols and over-indulgence. Whilst John Candy, “polka king of the Midwest”, may have ensured a happy ending for the re-united McCallister family on Christmas Day, let us consider for a minute the poor loss adjuster handed the claim file on their first day back after the festive break, after the Wet Bandits and young Kevin have wreaked havoc in the McCallister home.

Where to begin? Early in the movie, you might recall that the whole chain of unfortunate events ensues when high winds knock out power in the McCallister home, causing the family to oversleep and nearly miss their flight. Oversleeping may not immediately spring to mind when thinking of weather-related dangers, however, the McCallisters would have been wise to have in place a comprehensive policy to cover the potential for boiler breakdown or frozen pipes during cold weather, the potential for roof collapse or water damage during heavy snowfall, and flood risk from significant rainfall, particularly when the intention (at least) was for nobody to be at home for two weeks!

Although the owners of the house next door weren’t quite so lucky, the McCallisters were fortunate to avoid the Wet Bandits’ calling card of leaving the kitchen taps running and flooding their property. But for the intervention of a kindly neighbour, the McCallisters’ home insurers would likely have faced an eye-watering bill to cover stripping out and drying the property, removal and replacement of damaged walls and ceilings, not to mention the costs of replacing furniture and fixtures, checks to electrical wiring and re-decorating the affected rooms thereafter. Likewise, the potential for property damage from Kevin using a blowtorch in an indoor, poorly ventilated room, presumably without adequate training, supervision or risk assessments in place, does not bear thinking about. Of course, nor did he obtain a hot works permit, but then who does?

What of the misfortunes to befall the Wet Bandits themselves? Upturned nails, swinging paint cans and icy stairs would tend to suggest a somewhat blasé attitude by the McCallisters towards their occupiers’ liability obligations, however, Harry and Marv perhaps ought to brace themselves for an ex turpi causa defence to any personal injury claims they may advance. Such a defence, famously, did not fully succeed in the 1996 English case of Revill v Newberry where an allotment owner shot a vandal in the course of breaking into his shed, though the claimant’s damages were reduced by a factor of two thirds. But for his act of burglary, the claimant would not have been shot, but the injury was nonetheless caused by the reckless act of the defendant. Kevin’s “booby traps” would likely therefore be treated in a similar way - It seems that the most important question is whether there is a sufficiently close connection between an illegal act of a claimant and the delictual act of the defender. If the crime merely gives rise to the opportunity for the delict then that will not be sufficient to preclude the claim.

As a post script, those thinking of additional protection to their homes may wish to look at more traditional measures such as window locks, security cameras and burglar alarms, at least in the first instance. Anyone considering blowtorches, tarantulas or molten hot doorknobs may wish to have a word with my colleagues in our Criminal team before taking those ideas any further…

Contact: Calum Sweeney, Associate, csw@bto.co.uk T: 0141 221 8012