Occupiers Liability – Taking Obvious Risk Revisited

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Andrew Evans appeared for the Claimant at trial and as junior counsel in the Court of Appeal in the important Occupiers Liability case of The White Lion Hotel (A Partnership) v James [2021] EWCA Civ 31.

Since Lord Hoffman’s famous dicta in Tomlinson v Congleton Borough Council (HOL) it has been difficult indeed for claimants who can be said to have taken a risk inherent in the activity they undertook, at the time of the accident, to succeed in tort against occupiers. A dozen or so reported cases followed in which each claimant failed to surmount this apparently insuperable point of defence with the result that no duty was found to be owed by the occupier.

Mr James was a hotel guest who fell out of an unguarded sash window, with a knee height sill, in the middle of the night. The precise circumstances as to how he fell were not known but the trial judge found that he may well have been seeking fresh air to cool down or smoke a cigarette having sat on the sill to access cooler air at the window.

The Hotel owners were successfully prosecuted before the Crown Court having entered guilty pleas to Health and Safety at Work Act 1974 offences relating to the risk of falls presented by all the windows at the Hotel, on a basis of plea that accepted there was a material risk and that inexpensive window restrictors ought to have been fitted.

The trial judge, HHJ Cotter QC, found for the Claimant with a finding of 60% contributory negligence against her deceased husband. In his reasoning the judge found that the common duty of care was owed pursuant to section 2 of the 1957 Act and sought to use the criminal conviction to bridge the gap to a finding of civil liability. There was also a finding that the deceased had consciously accepted a risk of falls in deciding to sit in the window, the words of which arguably amounted to a finding that he was volenti non fit injuria, although there was also the finding of contributory negligence.

On appeal to the Court of Appeal it was held that there is no absolute principle that a visitor of full age and capacity who chooses to run an obvious risk cannot found an action against an occupier on the basis that the latter has either permitted him to do so, or not prevented him from so doing.

The decision also confirms that a step-wise approach should be taken to the 1957 Act, through each subsection in section 2, and that whether a breach of duty ought to be found depended on all the circumstances of a particular case.

In this case there had been a perfectly sound finding by the trial judge that there had been such a breach. The other reported cases in which claims had failed could be distinguished. It was a fact of life that a hotel visitor might take some risks of which a hotelier ought to be aware.

The defence at s2(5) of the 1957 Act preserved the common law defence of volenti, but to establish that it must be shown that the deceased was fully aware of the relevant danger and consequent risk. The deceased could not possess greater knowledge than the Hotel whose case was clear that they did not appreciate the risk of falls from this window before this accident. It could not be said that the deceased accepted the risk of falls to the extent that he was absolving the Hotel of liability and waiving his legal right to sue. The trial judge’s findings did not amount to a finding of volenti and rightly went only to the finding of contributory negligence.

The trial judge had though, as the respondent conceded in the appeal, over-elevated the importance of the conviction in the finding of liability. The Hotel had accepted by its basis of plea that it was reasonably foreseeable that an adult could fall from a window such as the one in question due to its position (i.e. unusually low sill). This was a material risk which the Hotel was under a duty to guard against. It was on the facts of this case a risk that was directly relevant to the accident. It was held important that the civil and criminal law should be internally consistent but each assessment had to be fact specific and it did not follow, and nor was it found, that civil liability axiomatically follows an unchallenged criminal conviction in civil proceedings. Accordingly, the trial judge was wrong to find that as a matter of law an occupier in breach of s3 of the HSWA 1974 was ipso facto in breach of his duty under the 1957 Act.

The finding of 60% contributory negligence against the deceased was not disturbed.

Andrew was led by Robert Weir QC of Devereux Chambers in the appeal.