PROVING THINGS 201: THE WHITE LION HOTEL CASE AND PROVING BREACH OF DUTY BY AN OCCUPIER

January 17, 2021 · by · in Appeals, Fatal Accidents, Liability

In the judgment in The White Lion Hotel (A Partnership) v James [2021] EWCA Civ 31 the Court of Appeal set out some importance principles in relation to claims based on the Occupiers’ Liability Act 1957.  The court upheld a finding of liability in favour of the claimant and found that this was not a case of volenti.

“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 so to do, or not prevented him from so doing”

THE CASE

The claimant’s husband was killed when he fell from a window at the defendant’s hotel, after he had sat on the window sill.  The defendant subsequently pleaded guilty to offences under the Health and Safety at Work Act 1974.  The claimant issued proceedings and the defendant denied liability. At trial the claimant succeeded with a finding of 60% contributory negligence.

THE ISSUES BEFORE THE COURT OF APPEAL

These were summarised:-

    1. The points raised in the appeal are issues of law. The essence of the appeal is contained in the first ground, namely that the judge, having found that the deceased had chosen to sit on the window sill, part out of the window, and had recognised and accepted the risk of falling from the window due to leaning too far out or losing his balance, erred in law in failing to apply the principle that a person of full age and capacity who chooses to run an obvious risk cannot found an action against a defendant on the basis that the latter has either permitted him to do so, or not prevented him from so doing. In so doing the judge failed to apply the ratio of Tomlinson v Congleton Borough Council [2004] 1 AC 46, Edwards v Sutton London Borough Council [2016] EWCA Civ 1005 and Geary v JD Weatherspoon [2011] EWHC 1506 (QB).
    2. Further grounds of appeal are pursued which raise the questions:
i) does section 2(5) of the 1957 Act apply, such that the appellant had no obligation to the deceased in respect of the risk of falling from the window?
ii) did the judge err in holding that, as a matter of law, an occupier who is in breach of his statutory duty under section 3(1) of the 1974 Act was ipso facto in breach of his duty to a visitor under the 1957 Act?

THE COURT OF APPEAL DECISION

The Court of Appeal upheld the decision of the judge at first instance. Nicola Davies LJ observed:-
    1. The claim is brought pursuant to the provisions of section 2 of the 1957 Act. The relevant provisions for the purpose of this appeal begin at section 1(1), which provides that section 2 replaces the common law rules and regulates the duty which an occupier of premises owes to visitors in respect of dangers due to the state of premises or to things done or omitted to be done to them. A simple but important point; this is a statutory scheme.
    2. The first question for the court is whether the judge was correct to find that the deceased was owed a duty of care by the appellant pursuant to section 2 of the 1957 Act and, if so, whether that duty was breached. It is only after addressing sections 1, 2(1) and 2(3) of the Act, and determining the nature and extent of any breach under section 2, that the court can proceed to section 2(5), which represents a defence.
    3. The assessment of whether there is liability under section 2 is essentially a factual assessment based upon the particular circumstances of each case. In this case it involved addressing a number of questions of fact and mixed questions of fact and law, namely:
i) Was there a danger due to the state of the premises;

ii) Was there a breach of duty in respect of that danger to the deceased;

iii) Was that breach of duty the cause of the deceased’s fall;

iv) Should a finding have been made pursuant to section 2(5) that the deceased was not owed the duty by reason of his voluntary acceptance of the risk created by the danger?

    1. The judge’s findings at trial include the following relevant findings of fact. The deceased was a visitor to the appellant’s hotel on a hot day, 4 July 2015. The sash window in his hotel room was low, some 46 centimetres from the floor. A bed was placed across some two-thirds of the width of the window. On the day of the accident the lower part of the sash window would not remain in the open position but would fall under gravity.
    2. Prior to 4 July the deceased had been struggling with the heat, which was such that a fan had been positioned to face his bed. When the deceased and Ms Palfreyman returned to the room following the wedding, he was still struggling with the heat. He had consumed alcohol but was not drunk. The deceased later went to the window and positioned himself sitting on the sill in order to obtain fresh air, he may have also wished to smoke. He was able to open the lower sash of the window and kept it open by sitting on the sill in a slightly, but not very, awkward position. His balance altered and he fell.
    3. At the time of the deceased’s fall there was an identified risk which arose from the state of the premises, namely the ability to fully open the lower sash of a window with a low sill which gave rise to the risk of a person falling out of it. The window was not safe for all normal activities as, if opened, which is the very purpose of sash windows, it presented the risk of a fall as it was so low relative to the centre of gravity of many adults.
    4. Prior to the accident the appellant had not carried out a suitable and sufficient risk assessment of some of the windows in their hotel bedrooms, this included room 203. The appellant did not appreciate that those windows presented a risk. They now accept that the sash window did present a risk that someone may injure themselves and that restrictors should have been put in place. The cost of the restrictors on the window was £7 or £8. The guilty plea of the appellant in the criminal proceedings represented an admission that a risk assessment would have resulted in measures being taken which would have addressed the risk and thus prevented the accident.
    5. In circumstances where the top part of the sash window could be fully opened, there was no significant social value to the ability to fully open the lower part of the sash window to such an extent that a person could fall out of it. It represented no material impact upon personal autonomy.
    6. Given the above findings of fact, the conclusions drawn by the judge at [42] as to the existence of the appellant’s duty to the deceased, a lawful visitor, the foreseeable risk of serious injury due to the state of the premises, the absence of social value of the activity leading to the risk and the minimal cost of preventative measures are unassailable. In my judgment they are findings which provide a sound factual basis for a determination that the appellant breached its section 2 common duty of care to the deceased.
    7. It follows from those findings that the issue thereafter to be addressed is whether a defence is available pursuant to section 2(5) of the 1957 Act. Before addressing that issue, it is necessary to consider the appellant’s primary ground of appeal and the authorities relied upon, as the appellant contends that no section 2 duty arises out of the facts of this case.
    8. The appellant’s primary ground of appeal, namely that a person of full age and capacity who chooses to run an obvious risk cannot found an action against a defendant on the basis that the latter has either permitted him to do so, or not prevented him from so doing, is derived from what is said to be the ratio of Tomlinson, Edwards and Geary.
    9. In my judgment, consideration of these authorities does not provide unequivocal support for the proposition contended for by the appellant.
Tomlinson
    1. The claim in Tomlinson was brought pursuant to section 1 of the Occupiers’ Liability Act 1984 as the claimant was a trespasser. A duty arises pursuant to section 1(3) of the 1984 Act in respect of a risk if:
“(a) he is aware of the danger or has reasonable grounds to believe that it exists;
(b) he knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger …; and
(c) the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection.”
It is only if those three conditions are met that the duty arises. As was stated at [38] by Lord Hoffmann: in the case of a lawful visitor one starts with the assumption that there is a duty whereas in the case of a trespasser one starts with the assumption that there is none. On the facts in Tomlinson the claimant did not meet the requirements of section 1(3)(c), thus there was no assumption of duty.
    1. Lord Hoffmann then went on to consider what the position would have been if there had been a duty under either the 1984 or the 1957 Act. However, given the finding on the facts that there was no duty, Lord Hoffmann’s consideration of the 1957 Act cannot properly be described as the ratio of the case. Further, in assessing the duty under section 2(2) Lord Hoffman made no reference to section 2(5). The focus was upon the council’s hypothetical duty under section 2(2) of the 1957 Act. As I read [45] to [49], Lord Hoffman appears to be placing the principle relating to a claimant’s acceptance of the obviousness of a danger as one element in a balancing exercise going to the reasonableness assessment pursuant to section 2(2) of the 1957 Act. He is balancing the obviousness of the danger against the social and financial cost of precautions. I do not read it as representing an absolute defence, rather he is identifying or considering the circumstances under which it would be reasonable to hold an occupier liable in respect of obvious dangers or risks. Lord Hoffman regarded Mr Tomlinson’s exercise of free will in voluntarily choosing to run an obvious risk as an important consideration, but identified other considerations of which account should be taken, including the social value which would be lost by the preventative measures under consideration, namely destroying beaches.
    2. It is of note that in Cook, in the passages cited at [35] and [36] above, Hamblen LJ treated the obviousness of the danger as going to the issue of reasonableness for the purposes of section 2(2). Lord Hoffman’s dicta in Tomlinson was cited as authority for that approach.
    3. In Edwards at [47] McCombe LJ identified the potential for injury which must have been obvious such that any user of the bridge would appreciate the need to take care and any user limiting the width of the bridge’s track, by pushing a bicycle to his side, would see the need to take extra care, as being a “particularly forceful consideration” militating against a duty to take protective steps. At [60] he attached weight to the fact that the addition of side barriers would have altered the character of the bridge significantly, to an extent out of proportion to a remote risk which had never materialised in its known history. Notwithstanding the somewhat broad assertion of what is described as “principle” at [43], at [47] McCombe LJ noted the obviousness of the danger and at [60] conducted the proportionality assessment relevant to section 2(2). In McCombe LJ’s reasoning, the obviousness of the danger did not operate as an absolute defence, but as one element of a balancing exercise.
    4. In Lewis v Six Continents [2005] EWCA Civ 1805, the facts of which are similar to the present, the question identified for the court was whether the window was unsafe for anyone. Ward LJ and Sedley LJ found that the window did not present an obvious danger to an adult. On that basis the claim failed. The court explored the particular facts relating to the window and reached its conclusion upon them. At [15] Ward LJ identified the fact that if the risk assessment had recommended the fixing of limiters or guardrails (around the window) and the risk had been ignored, then “of course the claimant would be well on the way to success”. In my view, this is another authority in which the relationship between the obviousness of the danger or risk and the content of the duty of care under section 2(2) of the 1957 Act was factually explored. Notably, on the particular facts of Lewis, if the danger had been obvious this would have supported a finding of a breach of duty.
    5. For the reasons given, I do not read Tomlinson or Edwards as being authority for a principle which displaces the normal analysis required by section 2 of the 1957 Act: the analysis undertaken by the judge at [63] of his judgment. What a claimant knew, and should reasonably have appreciated, about any risk he was running is relevant to that analysis and, in cases such as Edwards and Tomlinson, may be decisive. In other cases, a conscious decision by a claimant to run an obvious risk may, nevertheless, not outweigh other factors: the lack of social utility of the particular state of the premises from which the risk arises (the ability to open the lower sash window); the low cost of remedial measures to eliminate the risk (£7 or £8 per window); and the real, even if relatively low, risk of an accident recognised by the guilty plea. This was a risk which was not only foreseeable, it was likely to materialise as part of the normal activity of a visitor staying in the bedroom.
    6. Separate from the considerations above, there are a number of factual features which distinguish this case from those of Edwards, Tomlinson and Geary:
i) The lower sash window was defective. No defect was present in the ornamental bridge in Edwards, the body of water in Tomlinson, nor the bannister in Geary;

ii) In this case the judge found that a risk assessment would have made a critical difference. In Edwards McCombe LJ found that a risk assessment would have done no more than state the obvious;

iii) The risk of injury was foreseeable. In Edwards the risk was remote and had never previously materialised;

iv) The social value lost by taking preventative measures was low given that the top sash window could still be opened. In Edwards side barriers would have significantly altered the character of the ornamental bridge, in Tomlinson destroying the beaches would have been at huge social cost;

v) The financial costs of fitting the window restrictors was negligible (£7 or £8 per window). The same cannot be said of the preventative measures in Edwards or Tomlinson;

    1. A further and material distinction as between this case and the authorities relied upon by the appellant is the fact that the deceased was a guest at the appellant’s hotel. In Lewis the claimant returned to his hotel room at around 10pm having consumed alcohol. He later fell from the window. Sedley LJ noted that the common duty of care is owed not in the abstract but by a particular occupier here, a medium sized hotel, to a particular visitor, a young man with nothing to distinguish him from the hotel’s other adult guests. This observation reflects the provisions of section 2(3) of the 1957 Act and the references to “want of care” of a visitor. The formulation of the duty encompasses the recognition that visitors are not always careful.
    2. In my judgment, there is a material difference between a visitor to a park, even a pub, and a guest in a hotel. During the time the guest is in the hotel room it is a “home from home”. The guest in the room may be tired, off-guard, relaxing and may well have had more than a little to drink. Despite notices to the contrary he may be tempted to smoke out of the window and in hot weather the guest will want fresh air, particularly, as in this case, in a room with no air conditioning. As the judge observed, these are “facts of life” for any hotelier. These are normal activities.
    3. Contrast these facts with the “activities” contemplated in Tomlinson. Lord Hoffman at [45] observed that “it will be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake upon the land. If people want to climb mountains, go hang gliding or swim or dive in ponds or lakes, that is their affair.” These activities go far beyond those involved in the ordinary occupation of a hotel room.
    4. For the reasons given, I do not accept the appellant’s primary contention. 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 so to do, or not prevented him from so doing. Subject to the opinions of King LJ and Elisabeth Laing LJ, I would dismiss this ground of appeal.
Section 2(5)
    1. The defence of volenti non fit injuria was always a defence available to the occupier of the property and section 2(5) expressly preserves it. The editors of Clerk & Lindsell on Torts, 23rd Edition, 11-43 recognise this. At [36] of Geary, Coulson J accepted that the statutory offence has been confirmed to be indistinguishable from the common law defence of volenti.
    2. In Nettleship v Weston [1971] 2 QB 691 at 701 Lord Denning expressed the doctrine thus:
“Now that contributory negligence is not a complete defence, but only a ground for reducing the damages, the defence of volenti non fit injuria has been closely considered, and, in consequence, it has been severely limited. Knowledge of the risk of injury is not enough. Nor is a willingness to take the risk of injury. Nothing will suffice short of an agreement to waive any claim for negligence. The [claimant] must agree, expressly or impliedly, to waive any claim for any injury that may befall him due to the lack of reasonable care by the defendant ….”
    1. The maxim presupposes a tortious act by the defendant. The test is a high one.
    2. If the defence is to succeed it must be shown that the deceased was fully aware of the relevant danger and consequent risk. In Morris v Murray [1991] 2 QB 6 Stocker LJ said that he would not go so far as to say that the test was objective. The issue in that case was whether there was evidence that the claimant was so intoxicated that he was incapable of appreciating the nature of the risk and thus did not consent to it.
    3. The appellant identifies the finding by the judge at [76] ([49] above) as representing a determination by the judge that the deceased possessed full knowledge of the nature and extent of the risks sufficient to provide a defence to the appellant pursuant to section 2(5).
    4. At [18], in making a finding of contributory negligence, the judge found that the deceased consciously adopted a precarious position, he could foresee the danger of falling, if not the precise manner, and very considerable care was required if he was to sit on the sill. Any lapse of concentration and he might fall. He concluded that “in choosing to act as he did he was guilty of a blameworthy failure to take reasonable care for his own safety.” Upon that basis the judge made the unappealed finding of 60 per cent contributory negligence.
    5. The deceased fell in the early hours of the morning. He had attended a wedding, drunk alcohol, when he returned to the room it is likely that he was hot and tired. He was unable to sleep and felt the need for, at least, fresh air. In assessing his actions and the knowledge of any risk and its consequences, account can properly be taken of the condition of the deceased and his ability to fully appreciate what he was doing and the consequences of it, such as to meet the stringent requirements of the test of volenti.
    6. It is pertinent to observe that the appellant, who owned and managed the hotel, did not appreciate the risk prior to the accident. In the circumstances, to make a finding that the deceased, a visitor, should possess greater knowledge than the occupier of the premises is a considerable step to take.
    7. The findings of the judge, in particular at [76], represent knowledge of the general risk which the deceased faced. There is no finding that the deceased was aware of, and expressly or impliedly accepted, that the risk had been created by the appellant’s breach of duty and by his actions he was deliberately absolving or forgiving the appellant for creating the risk. There is no finding that in sitting as he did the deceased was waiving his legal right to sue. In my judgment these are findings which provide a basis for the determination of contributory negligence. They do not go sufficiently far to meet the requirements of section 2(5).
    8. The judge heard the evidence and assessed the witnesses. There is no challenge to his findings of fact. Notwithstanding the fact that neither party had raised section 2(5), it was open to the judge to make a finding pursuant to that section if he thought it was made out on the facts. He clearly did not. His finding was one of contributory negligence. In my judgment this was a paradigm exercise for the trial judge, who made a finding with which this court would not easily interfere. In my judgment there are no grounds to interfere with the judge’s finding that the deceased was contributorily negligent in appreciating some risk but insufficient to provide the appellant with a complete defence to this action.
    9. Accordingly, for the reasons given, and subject to the views of King LJ and Elisabeth Laing LJ, I do not accede to the appellant’s appeal in respect of section 2(5) of the 1957 Act.
The criminal conviction
    1. Section 47(1)(a) of the 1974 Act states that:
“(1) Nothing in this Part shall be construed—

(a) as conferring a right of action in any civil proceedings in respect of any failure to comply with any duty imposed by sections 2 to 7 or any contravention of section 8; …”

    1. Given the clear wording of this section, I am unable to accept the conclusion of the judge at [92] that unless the conviction is challenged on its facts civil liability does axiomatically follow, as a matter of law. I accept the need for coherence and consistency as between the civil and criminal law which apply to the same set of facts, but those facts have to be explored in order to decide whether, and if so, how, a criminal conviction relates to civil liability.
    2. I accept the following contentions made by the respondent:
i) The risks identified in section 3(1) of the 1974 Act include risks arising out of the condition of the work premises (section 1(3)) and Hampstead Heath Swimming Club above at [51] and [52]). The word “risk” in section 3(1) is “directed at situations where there is a material risk to health and safety, which any reasonable person would appreciate and take steps to guard against”: R v Chargot Ltd [2009] 1 WLR 1 at [27]. Foreseeability of risk or danger is relevant to the question whether such a material risk to safety exists: R v Tangerine Confectionery Ltd [2011] EWCA Crim 2015 at [36].

ii) The key constituent of the criminal offence, namely the existence of a reasonably foreseeable material risk, which any reasonable person would appreciate and take steps to guard against, reflects the obligation under section 2 of the 1957 Act. In Hampstead Heath Swimming Club at [46] Stanley Burnton J held that both section 2 of the 1957 Act and section 3 of the 1974 Act are concerned with responsibility for fault and that it was correct to derive from the judgments in Tomlinson an approach to the interpretation and application of the 1974 Act in this context. At [63] he held that the requirement under section 3 of the 1974 Act was subject to the same considerations as those referred to in Tomlinson.

iii) In her pleading the respondent had relied upon the criminal conviction pursuant to section 11(1) of the Civil Evidence Act 1968. The appellant was entitled to challenge the inference that it would have been taken to have committed the offence (section 11(2)(a)) but did not do so. At trial the appellant accepted that through its guilty plea there was recognition of a reasonably foreseeable risk of adults falling from the window due to its low position, which risk should have been addressed.

    1. In this case the risk, the existence of which the appellant accepted in its basis of plea in the criminal proceedings, was that it was reasonably foreseeable that an adult could fall from a window such as this due to its position. The appellant also accepted that that risk should have been addressed. The risk was at the core of the appellant’s plea of guilty. It was a material risk which was causative of the fall of the deceased. The respondent describes the deceased’s accident as a paradigm example of the risk which the appellant was under a duty to guard against. I agree.
    2. At the civil trial there was no attempt to go behind the criminal conviction nor the basis of plea. In my judgment, account could and should be taken of the fact of the conviction and the basis upon which the plea of guilty was entered. As to the weight to be attached to the conviction and any basis of plea, that will depend upon the facts of each case. In this case the risk was directly relevant to the tragic events which materialised. It does not follow that in every case such a chain of causation will be made out. I accept that the assessment pursuant to section 3 of the 1984 Act and section 2 of the 1957 Act was in key respects the same. It is important that the civil and criminal law should be internally consistent. That said, each assessment will be fact-specific and it does not follow, and I do not find, that civil liability axiomatically follows an unchallenged criminal conviction in civil proceedings.
    3. It follows, and subject to the opinions of King LJ and Elisabeth Laing LJ, I accept the appellant’s contention that the judge erred in holding that, as a matter of law, an occupier who was in breach of his statutory duty under section 3(1) of the 1974 Act was ipso facto in breach of his duty to a visitor under the 1957 Act.
    4. Given my findings as to:
i) the nature of the balancing exercise to be carried out pursuant to section 2(2) of the 1957 Act;

ii) the breach of that duty on the unchallenged facts of this case; and

iii) the fact that a defence is not made out pursuant to section 2(5);

the determination made by the judge that there should be judgment for the respondent subject to a reduction of 60% contributory negligence is upheld.
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