PROVING THINGS 103: CAUSATION WHEN THE CLAIMANT TRIED TO ESCAPE FROM A BALCONY: A TALE OF TWO JUDGMENTS

There is an interesting consideration of causation in the Court of Appeal judgment  today in Clay v TUI UK Ltd [2018] EWCA Civ 1177.  This has the flavour of a case that may go further.   There is an interesting dissenting judgment and the conclusions could be far-reaching.

THE CASE

The claimant was on holiday when he and his family were trapped on a balcony.  In an attempt to escape the claimant climbed off the balcony intending to climb onto the adjoining balcony. He stood on a ledge which collapsed underneath him.  The trial judge made a number of findings, amongst these he found that there was a fault with the lock mechanism of the balcony door but this was not causative of the injury.

THE MAJORITY DECISION IN THE COURT OF APPEAL

The majority upheld the judge on the issue of causation. Lord Justice Hamblen stated:-

Ground (2) – The judge failed to consider relevant evidence and his conclusion that the defect in the locking mechanism was not causative of the accident was wrong.

1. 1. This is essentially an attack on the factual findings made by the judge. This is a heavy burden to discharge and requires demonstrating that the decision was one which no reasonable judge could have reached on the evidence.

   2. Mr Weir QC seeks to avoid the difficulty this creates for the appeal by submitting that even if the judge applied the correct legal test, he did not appreciate how it should be applied and so fell into legal error in its application.

   3. In particular, Mr Weir QC submits that the judge failed to pay any or any sufficient regard to the evidence of the appellant, his parents and his wife as to why they considered that it was safe to step on to the balcony ledge. As the judge recognised, these were reasonable and responsible people and it is submitted that great weight should have been given to their assessment of the situation and of the danger involved. Mr Weir QC also criticizes the judge for applying the test he had set out by way of stating conclusions rather than conducting any detailed analysis.

   4. It is correct that the judge’s reasoning in relation to the issue of causation is condensed. It is essentially set out in [111] and [112] of the judgment. The core of his reasoning is nevertheless clear. The judge found that the appellant “did not know and could not know that it was safe to stand on the ledge”. In those circumstances, viewed objectively, the risk of injury in standing on the ledge was “obvious” and “life threatening”. The great and obvious danger involved so far outweighed the inconvenience with which the appellant and his family were faced that voluntarily running into that danger was a new and independent act which eclipsed the prior breach of duty.

   5. In arriving at this conclusion, there is no reason to doubt that the judge had full regard to the evidence of the appellant, his parents and his wife. He recites that evidence at some length earlier in his judgment and, in addressing causation, he makes reference to how they were “impressively ordinary and considerate people and of apparently careful background” and to their knowledge and experience of health and safety and of life and death issues. The matters now urged upon this court were stressed strongly in submissions made to the judge at trial. In any event, it is not necessary for a judge to set out every evidential factor considered in reaching an evaluative judgment of this kind.

   6. As the judge made clear, the fact of the matter is that the appellant and his family assumed that the ledge was safe. It was dark. They had not previously paid any close attention to the ledge. It was below and not part of the balcony. There was no basis for the assumption made and it was accepted in evidence that there was no reason to suppose that the ledge was safe. As the judge found, the appellant “did not know and could not know that the ledge was safe”. This may be a conclusion, but it was a conclusion firmly founded on the evidence. Unless the ledge was safe, what was being attempted was obviously foolhardy and highly dangerous, as the judge found.

   7. There is equally no force in the criticism made by Mr Weir QC that the judge failed to take into account the degree of inconvenience which the appellant and his family faced. The factors relied upon were urged upon the judge in submissions. Many of them are referred to in the judge’s rehearsal of the witnesses’ evidence. The judge was entitled to find that none of the circumstances relied upon, either individually or collectively, gave rise to more than inconvenience, let alone any situation of emergency. Nor is it correct that the family were facing the prospect of remaining on the balcony for several hours. Although they had made some attempts to attract the attention of passers-by on the roads below, they had not done so for more than a short time, nor had they shouted loudly, because they did not wish to disturb people, as Mrs Clay stated in evidence. After the accident other hotel occupants reported the disturbance to hotel staff who arrived in about 20 minutes.

   8. In my judgment, there are accordingly no grounds for challenging the decision reached by the judge on the evidence or contending that this involved any error of law.

   9. Finally, if regard is had to the considerations set out in paragraph 28 above, then, on the basis of the judge’s findings:

(1) The appellant’s conduct, which was the only conduct which was said to be relevant to foresight at trial, was not reasonably foreseeable.

(2) The conduct was unreasonable to a high degree given that the appellant and his family were faced with inconvenience rather than any danger, emergency or threat and the obvious risk of life threatening injury involved in the course of action which the appellant chose to take.

(3) The conduct was voluntary. It was both considered and deliberate. There was no necessity for the appellant to take any risk, but he nevertheless chose to expose himself to real danger and to an obvious risk of death or serious personal injury.

In these circumstances, a finding that there was a novus actus interveniens is clearly justifiable.

1. 1. Moylan LJ has reached a different conclusion as, in his view, the appellant’s conduct was not of the degree of unreasonableness required to make it an intervening event. This was a matter for the judge to evaluate and determine and in my judgment he did so in a manner which neither calls for nor justifies intervention by this court.

Conclusion

1. For the reasons outlined above, I would dismiss the appeal against the judge’s findings on causation. In those circumstances it is not necessary to consider the Respondent’s Notice and the issue of whether a finding of breach of duty was or should have been made.

THE DISSENTING JUDGMENT

Lord Justice Moylan dissented.  His view was that the judge should have found liability and assessed contributory negligence at 45%.

1. 1. The judge next addressed the issue of “Causation”. When doing so he said, as set out at more length above, at [21]:

“There is no doubt the door clicked shut so as to lock out the Claimant and his wife and parents. On my findings above, it is possible to categorise this as a defect and thus to constitute a departure from the” required standard.

There was some debate during the hearing of the appeal as to whether these words meant that the judge had not found a breach because of the use of the word “possible”. That is clearly one interpretation. However, it is not consistent with what the judge had said in the previous paragraph nor his conclusion as to how the door came to be locked shut.

1. 1. I am fortified in my conclusion by what the judge said in response to the application for permission to appeal. In response to the ground asserting that “the defect in the lock was causative of the accident because there was a foreseeable risk that a guest trapped on a balcony would or might look for a route off the balcony”, the judge did not say that he had found that there was no defect nor that it was not a breach of local standards. What he said was, “The defect in the lock itself did not itself present danger of physical injury” (my emphasis). He then said that it was “the fragility of … the cornice … which was the immediate and direct cause of the accident”.

   2. It is, therefore, clear to me that the judge found that the lock was defective and that this was a breach of local standards for which the respondent was liable.

   3. In a Respondent’s Notice it is argued that the judge erred in finding a breach of duty. This is said to have been incompatible with some of his findings as to the door’s locking mechanism. It is also said that judge was wrong to find that there had been a breach of duty because he should have found that the lock was not defective so as to be in breach of local standards.

   4. I am not persuaded by the matters raised in the Respondent’s Notice that the judge was wrong in this respect. The judge was plainly entitled to find that the lock was defective. He carefully analysed all the evidence before reaching this conclusion. I also consider that it was plainly open to the judge to find that this constituted a breach of local standards for which the respondent was liable. Indeed, as referred to above, the judge had understood that if there was a defect it was “for practical purposes assumed” that it would be a breach of local standards.

   5. I next turn to the issue of foreseeability or remoteness. This was not one of the three issues referred to in the judgment as set out above. The judge addressed the issue of “causation” because the defence asserted that the appellant’s conduct broke “the chain of causation” but did not raise the issue of remoteness. Nor did the latter feature in the “Schedule of Agreed Facts and Issues” prepared for the trial. Again, all that featured was “Claimant’s Alleged Conduct and Causation”.

   6. In this case it could be said that the issues of remoteness and causation overlap. However, as Mr Weir submitted, there is an important distinction in that remoteness is concerned with the “kind” of damage (see below).

   7. Having said that the primary focus was on the issue of causation, I acknowledge that the judge set out that he would have to “explore whether simply locking a guest out on the balcony so as to require assistance to open the door from within was foreseeably likely to cause anything other than inconvenience or delay as opposed to injury”. However, although the judge set out that issue it is not easy, in my view, to see that he answered it, at least not in the negative.

   8. The focus of the judge’s legal, as opposed to factual, determination was, as set out in [111]-[112] (see [21] above), the issue of causation. He decided that the appellant’s actions were “a strikingly new and independent act” such that “it could not be said the locking out was a sufficient proximate cause of the accident”. This is not answering the question of whether injury was foreseeable. Indeed, the only reference to injury was at [113] when the judge stated that “breach of standards in a lock which permitted the door to be inadvertently locked closed was itself not a sufficiently proximate cause of his injury”. I find it difficult to interpret this as a determination of foreseeability of injury.

   9. Further, the paragraphs at [121]-[122] of the judgment, on which Mr Walker relies as having addressed the issue of foreseeability, are in that part of the judgment when the judge is dealing with the issue of whether it had been a breach of local standards for there to be no warning. It is in this context, and this context alone, that the judge concluded that the hotel could not “have foreseen that a guest would climb onto the outer ledge”.

   10. As Mr Weir submitted during the hearing, this was not a finding which dealt with remoteness of damage. The issue was not whether it was foreseeable that the appellant might be injured by trying to get from one balcony to another but whether he might be injured as a result of being trapped on the balcony. For example, in Simmons v British Steel plc, Lord Rodger said at [67]:

“(1) The starting point is that a defender is not liable for a consequence of a kind which is not reasonably foreseeable: McKew v Holland & Hannen & Cubitts (Scotland) Ltd 1970 SC (HL) 20, 25 per Lord Reid; Bourhill v Young [1943] AC 92, 101 per Lord Russell of Killowen; Allan v Barclay 2 M 873, 874 per Lord Kinloch …

… if the pursuer’s injury is of a kind that was foreseeable, the defender is liable, even if the damage is greater in extent than was foreseeable or it was caused in a way that could not have been foreseen: Hughes v Lord Advocate [1963] AC 837, 847.”

In Corr v IBC Vehicles Ltd, Lord Bingham said at [13]:

“The Court of Appeal majority were right to uphold the claimant’s submission that it was not incumbent on her to show that suicide itself was foreseeable. But, as Lord Pearce observed in Hughes v Lord Advocate [1963] AC 837, 857, “to demand too great precision in the test of foreseeability would be unfair to the pursuer since the facets of misadventure are innumerable”. That was factually a very different case from the present, but the principle that a tortfeasor who reasonably foresees the occurrence of some damage need not foresee the precise form which the damage may take in my view applies.”

1. 1. What must have been reasonably foreseeable was that the appellant might sustain personal injury as a result of being trapped on the balcony.

   2. The point which could be advanced as indicating that the judge had decided personal injury was not foreseeable was what the judge said when dismissing the application for permission to appeal. As referred to above, the judge said that the defect in the lock did not “itself present danger of physical injury”. However, I do not consider that this is sufficient to alter the whole focus of the judgment which was on the way in which the appellant was injured and not on whether he might sustain injury.

   3. Mr Walker also referred to the judge’s conclusion on causation and whether the appellant’s actions were a novus actus. The judge considered whether the “locking mechanism can be said to have caused the accident” and decided that “the locking out” was not a “sufficiently proximate cause of the accident”. He then said, “Alternatively stated, any defect in the lock having the potential to lock out spontaneously did not render the premises unsafe by local standards”. In my view one cannot draw from these any separate consideration of the issue of foreseeability. They are different questions from whether the risk of personal injury was foreseeable because they are dealing with the cause of the accident and whether the premises were unsafe. On this issue, I respectfully disagree with Hamblen LJ’s observations at [29]-[30] above.

   4. In my view, if the judge had expressly answered this issue, he would have concluded that it was foreseeable that the appellant might sustain personal injury from being trapped on the balcony because it was foreseeable that he might try to escape and might sustain some injury as a result. This is particularly so when one of the Agreed Issues, which the judge was being asked to determine, was whether the appellant failed “to take the reasonable step of breaking the glass in the balcony door to gain access to the room”.

   5. I next turn to causation and novus actus interveniens.

   6. I recognise, of course, that an appeal from the judge’s conclusion that the appellant’s actions were sufficient to break the chain of causation can only succeed if the judge made an error of law or if his conclusion was plainly wrong. His conclusion demands the respect that is always accorded to an evaluative determination made by the trial judge.

   7. Mr Weir submits that the judge approached the issue of novus actus from too narrow a perspective. The judge focused on whether there was a “fire” or an “emergency” or a “threat” rather than undertaking a broader assessment to determine whether the appellant’s actions were sufficient to amount to a novus actus.

   8. Mr Weir relies on a number of the judge’s findings. The appellant and his family were “moderate” and “sensible” people. The appellant was employed as a security office/fire officer. The appellant’s wife said that she “would never have contemplated letting her husband attempt this if she had thought that he might fall”. The appellant and his father had “a good look at the ledge and the distance between the balconies and decided it would be possible to step from one balcony to the other using the ledge on the outer edge of the balustrade”. This was after they had tried but failed to open the door by “pushing and pulling it with some force” or to attract help by shouting for at least 20 minutes. The appellant’s wife “began to feel anxious” (in particular, about one of the children) and “began to need the toilet”. Mr Weir also pointed to the fact that the ledge looked to be of the same construction as the balcony. The appellant and his father had concluded that the ledge “looked wide and strong”.

   9. The judge found that the attempt to cross from one balcony to the next was made after at least half an hour had passed from when the door was found to be locked. There was no relevant inebriation. He also found that the gap between the balconies was small so that if it had been only a few feet above the ground “it would have been a simple step”.

   10. Mr Walker submits that the judge made an evaluation that was open to him and that he asked himself the right question, namely whether the appellant’s conduct was “so unexpected and/or foolhardy as to be a novus actus interveniens“.

   11. We were taken through an array of authorities on this aspect of the case as referred to at [24] above. To the passages quoted above, at [28]. [31] and [34], I would add the following.

   12. In Emeh v Kensington and Chelsea and Westminster Area Health Authority [1985] 1 QB 1012 Waller LJ phrased the relevant question as being (at p. 1018H):

“Can it be said that the plaintiff’s conduct was so unreasonable as to eclipse the defendants’ wrongdoing?”

He then quoted from McKew v Holland before saying that “the degree of unreasonable conduct which is required is, on Lord Reid’s view, very, very high” (p. 1019C). Lord Reid had used the expression “utterly unreasonable” which Waller LJ adopted when considering the plaintiff’s conduct (at p. 1019E).

1. In Webb v Barclays Bank the court addressed the effect of the intervening negligence of a doctor. Henry LJ gave the judgment of the court which determined that the chain of causation had not been broken. This was because of several factors including that “the original wrong-doing remained a causative factor” because of its effect on the claimant and because the doctor had been negligent “not grossly negligent”, [56].

2. In Corr v IBC Vehicles Ltd Lord Bingham identified the “rationale of the principle that a novus actus interveniens breaks the chain of causation is fairness. It is not fair to hold the tortfeasor liable, however gross his breach of duty may be, for damage caused to the claimant not by the tortfeasor’s breach of duty but by some independent, supervening cause … for which the tortfeasor is not responsible”, at [15].

3. In my view the authorities demonstrate that a broad evaluation is required when determining whether a claimant’s conduct is sufficiently unreasonable to break the chain of causation by eclipsing the causative effect of the defendant’s wrong-doing. This involves consideration of all facts relevant to that question. Further, as was pointed out by Aikens LJ in Spencer v Wincanton Holdings Limited, at [44] and [45], the conduct must be such as to take it beyond that which would be within the scope of contributory negligence.

4. Did the judge apply the right test and/or was his evaluation flawed? In my view, although the judge referred to the issue as being whether the appellant’s actions were “so unexpected and foolhardy” as to break the chain of causation, when he came to determine that issue he did not undertake the broad evaluation required to determine whether those actions were sufficiently unreasonable to eclipse the causative effect of the respondent’s wrong-doing. Accordingly, he either applied the wrong test or reached a flawed evaluation.

5. Although the judge referred to a number of factors at [107]-[113] (see [21] above), he ultimately undertook what I consider to be an unduly narrow evaluation. This can be seen from [111]-[112] where he set out his assessment of the appellant’s conduct. The judge focused on whether the defect in the lock was a “direct danger” causing an “emergency or threat”. Balanced against this the judge referred only to the air temperature and to his assessment that, because the appellant “did not know and could not know that it was safe to stand on the ledge” (my emphasis), the risk of life threatening injury was “obvious”.

6. This analysis was too narrow because a proper assessment of whether the appellant’s conduct was sufficiently unreasonable was not confined to whether the lock created a direct danger (in the sense of creating an emergency or threat) nor to whether the appellant did not “know” that the ledge was safe to stand on. The absence of danger was relevant but so were the other matters referred to in the evidence which led the appellant to respond to being trapped on the balcony by trying to get to the other balcony. I have also emphasised the word “know” because, in my view, this was not the appropriate assessment and suggests that the judge applied the benefit of hindsight.

7. I agree with Mr Weir’s submission that the judge’s analysis in these critical paragraphs ignored his assessment that the appellant and his family were moderate and sensible people and ignored the fact that they had carried out what they thought was a sufficient analysis of the ledge to conclude that it was “wide and strong”. They were wrong in this analysis but that is a different point. The judge should have considered whether their subjective conclusion, which led the appellant to seek to step from one balcony to the other, was objectively so unreasonable a response to being trapped on the balcony that it eclipsed the causative effect of the defect which had led to them being trapped.

8. In summary, and somewhat repetitively, in my view the judge failed to apply the analysis required properly to answer the question of whether the appellant’s response to being trapped on the balcony with the other members of his family, as a result of the respondent’s wrong-doing, was so unreasonable as to mean that the reason for them being trapped was no longer an operative cause of the accident.

9. If the judge had carried out such an analysis in my view he would have come to the conclusion that the appellant’s conduct was not such as to “eclipse” the causative effect of the defective lock. The family had sought to procure their release by other means for at least half an hour. It was very late at night. The appellant’s wife began to feel anxious as referred to above. The appellant with, in particular, his father had carried out a considered analysis and had come to the conclusion that he could escape from the balcony by stepping onto what appeared to be part of the balcony because it was covered with the same material, namely concrete. In my view, that this analysis was flawed and that there was no emergency should not be treated as sufficient to make his actions an intervening event which broke the chain of causation. The defect in the lock remained a causative factor because the appellant’s response to being trapped was not of the degree of unreasonableness required to make it an intervening event.

10. I finally turn to the issue of contributory negligence. I have already expressed my response to the judge’s determination of 45% if the ledge had been in breach of local standards. Despite my conclusions as to other aspects of the judge’s decision, I see no reason to depart from this assessment when applied to the defect in the door. In other words, if the judge had not found there to be a break in the chain of causation, I see no reason why he would not also have reached the same conclusion in respect of contributory negligence. The same act was being assessed, namely the appellant “climbing over”, in the context of the respondent’s breach having created the situation with which the appellant was confronted.

11. In conclusion, for the reasons set out above, I would have allowed the appeal and substituted a finding of liability with contributory negligence of 45%.