The Occupiers’ Liability Act 1957 requires those who control land to take such care as is reasonable in all the circumstances to see that their visitors are reasonably safe when using premises for the purposes for which they are invited or permitted to be there. But risks willingly accepted by visitors are excluded from this requirement: section 2(5).
James v The White Lion Hotel [2021] EWCA Civ 31; [2021] PLSCS 11 concerned the death of a guest who fell from a second-floor window in a hotel on to the pavement below. The deceased had returned to his room after a wedding and fell while sitting on the window sill – either in order to cool down or to smoke a cigarette. The hotel was prosecuted for breach of duty under the Health and Safety at Work Act 1974 and pleaded guilty because the sash window was not fitted with a restrictor to limit how widely it opened.
At the civil trial that followed, the judge ruled the hotel was in breach of its duty of care under section 2 of the 1957 Act in failing to take reasonable care for the safety of the deceased. But the judge also decided the deceased had been contributorily negligent because he had chosen to sit on the window sill, even though there was a risk of overbalancing and falling.
On appeal, the hotel relied on the provisions of section 2(5) of the 1957 Act. It argued the deceased had been the author of his own misfortune and that the judge had ignored the decisions in Tomlinson v Congleton Borough Council [2003] UKHL 47; [2003] PLSCS 203 and Edwards v Sutton London Borough Council [2016] EWCA Civ 1005; [2016] PLSCS 266, in which the landowners were absolved from responsibility for accidents occurring on their land. But the Court of Appeal has upheld the decision.
It decided that it did not follow, as a matter of law, that an occupier who is in breach of his statutory duty under the Health and Safety at Work Act is, for that very reason, also in breach of his duty to visitors under the 1957 Act. However, when the deceased fell there was an identifiable risk – the ability to fully open the lower sash of a window with a low sill – which arose from the state of the premises. It subsequently emerged the hotel had not carried out a suitable and sufficient risk assessment of the window and did not appreciate that there was a risk. And it had subsequently installed window restrictors, costing £7 or £8 each, which would have prevented the deceased’s fall.
The court ruled there is no absolute principle that a visitor of full age and capacity who chooses to run an obvious risk cannot sue an occupier on the grounds that the occupier permitted him to do so, or did not prevent him from doing so. Furthermore, for the defence that the deceased had willingly accepted the risk to succeed, the hotel would have had to show that he had been fully aware of the danger and consequent risk.
There was nothing to suggest this was the case, especially as the hoteliers had not appreciated the risk themselves – and there were no grounds to interfere with the judge’s finding that the deceased had been 60% contributorily negligent, without providing the hotel with a complete defence to his claim.
Allyson Colby, property law consultant
