Appeal refused in claim against landlord following children falling into hot bath

The case of NM (AP) v TO and AO [2025]  was heard recently in the Sheriff Appeal Court. It involved an appeal by the pursuer following a decision that she was not entitled to damages from her landlord after her children fell into a scalding hot bath.

Background:

On 12 April 2018, the pursuer turned on the hot tap in her bathroom to fill the bath. After filling the bath with scalding hot water, she put her 9-month-old baby to bed. Around 10 minutes later she heard screaming from her two sons, aged 4 and 6 years old. They had been fighting in the bathroom, and both had fallen into the scalding bath.

The pursuer raised an action for damages against her landlords on the basis that they were in breach of the Occupiers’ Liability (Scotland) Act 1960.  In order to be successful the pursuer was required to prove that the landlords had failed to carry out their responsibilities for maintenance and repair of the property.

The appellant gave evidence that the hot water tap in the bath discharged water at a temperature of 55°C throughout the tenancy. Her evidence was that this put the property in a state of disrepair which could cause injury to her children during the ordinary use of the property.

The sheriff disagreed. It was held that the property was not in a state of disrepair, and as it had been built in 1995 it was not subject to the Building (Scotland) Regulations 2004. It was noted that a discharge temperature of 55°C was standard for a property of that age, and a tap discharging water at that temperature did not of itself constitute a danger.

It was further held by the sheriff that, although he accepted the pursuer had complained about issues with the heating at the property, he did not accept that any complaint was made by the pursuer to the landlords stating the water discharge temperature was too hot. Even if there had been a danger present, in the absence of notification of that danger, the landlords could not be held to be in breach of their duties under the 1960 Act.

The sheriff also decided against the pursuer on the issue of causation. He noted that even if the landlords were in breach of their duty under the 1960 Act, the pursuer had (1) left a bath filled with hot water, (2) failed to warn her children of the risk of the hot water in the bath; and (3) left her children unsupervised in close proximity to the bath filled with hot water, which amounted to a novus actus interveniens (an intervening act).

The sheriff held that had liability and causation been established, a reduction of 75% would have been made to the award of damages for contributory negligence.

Appeal:

The pursuer appealed this decision and submitted that the sheriff was plainly wrong to hold that the water temperature did not present a danger. It was also submitted that the sheriff erred by failing to consider the Building (Scotland) Regulations 2004 and in finding that there was no sanitary defect at the property on the basis that the hot water system was mechanically sound.

The pursuer further pleaded that the sheriff erred in holding that the circumstances of the accident amounted to a novus actus interveniens. This argument had not been pled by the respondents and the question of reasonable foreseeability rarely applied to actions on behalf of children. She argued that the source of danger was the water temperature and the fact that unsupervised children had come in to contact with the water did not break the chain of causation. The pursuer also argued that the sheriff erred in his approach to contributory negligence, and any finding should have been no higher than 30%.

The landlords submitted that the sheriff did not ignore any of the relevant evidence, and that the statutory duty under the 1960 Act is of a very different nature to their duties as a landlord. They argued that establishing a failure on the part of a landlord to perform their maintenance or repair responsibilities is not sufficient to give rise to liability under the 1960 Act. The landlords further submitted that the sheriff was correct to hold that a water discharge temperature of 55°C was not in itself a danger to the pursuer or her children. No complaints were made about the temperature, and the sheriff held that the landlords had no knowledge of the water being too hot.

Decision:

It was noted that in relation to the sheriff’s finding regarding the water temperature from the bath tap at 55°C not being dangerous, the sheriff had taken account of the evidence and recognised that it was an obvious hazard to children, but so obviously so that supervision of the children was necessary. It was held that this was correct and there was no evidence that either the pursuer or landlords had regarded the temperature as a danger prior to the accident.

It was further held that the pursuer’s case depended upon the landlords failing in their responsibilities for the maintenance and repair of the property under the Occupiers’ Liability (Scotland) Act 1960. The standard required under this Act is “such care as in all circumstances of the case is reasonable to see that the person will not suffer injury or damage by reason of any such danger”. It was noted that the sheriff was justified in reaching the conclusion that the discharge of water at 55°C was not dangerous by itself, and that filling the bath with scalding hot water only and leaving young children unsupervised close to an obvious hazard was not ordinary usage of the premises. The bath tap discharge of 55°C was standard in a property of the age of the premises, and it therefore cannot be said that the water installations were not in proper working order.

The Appeal Court held that the defence of a novus actus interveniens was capable of being established, however they considered that the whole circumstances of the accident were capable of constituting this rather than simply the absence of supervision. It was held that filling the bath with scalding water created the danger, as did leaving the two young children unsupervised, and as such both of these factors broke the chain of causation.

Finally, in relation to the issue of contributory negligence, the appeal court noted that they would not have interfered with the decision to assess this at 75%.

The appeal was therefore refused.

Comment:

This decision shows that although the temperature of tap water can present a possible hazard, the onus was on the pursuer to supervise her children.  In filling the bath with scalding water and leaving it unattended, the chain of causation was broken, and the landlords had not breached their statutory duties.