Occupiers’ Liability – Duty of care – Visitor – Deceased falling from window while guest at hotel operated by appellant – Appellant pleading guilty to criminal offence under health and safety legislation – Respondent wife of deceased bringing civil claim for breach of common duty of care – Whether deceased’s knowledge and acceptance of risk precluding finding of duty owed by appellant – Whether unchallenged criminal conviction ipso facto giving rise to breach of civil duty – Appeal dismissed
The appellant partnership owned and operated the White Lion Hotel, Upton-upon-Severn, Worcester. The deceased was staying as a guest at the hotel when he fell to his death from the sash window of his bedroom. Following an investigation, the appellant was prosecuted for offences contrary to section 3(1) of the Health and Safety at Work Act 1974. A guilty plea was entered on an agreed basis that a sufficient risk assessment of the hotel’s windows had not been conducted.
The wife of the deceased (the respondent) brought a claim for damages under the Occupiers’ Liability Act 1957. The judge allowed the claim but made a reduction of 60% for the deceased’s contributory negligence.
The appellant appealed contending, amongst other things, that the judge (i) 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 by 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 chose to run an obvious risk could not found an action against a defendant on the basis that the latter had either permitted him to do so, or not prevented him from so doing; and (ii) 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.
Held: The appeal was dismissed.
(1) There was no absolute principle that a visitor of full age and capacity who chose to run an obvious risk could not found an action against an occupier on the basis that the latter had either permitted him so to do, or not prevented him from so doing.
The first question for the court was whether the judge was correct to find that the deceased was owed a duty of care pursuant to section 2 of the 1957 Act and, if so, whether that duty was breached. That was a factual assessment based upon the particular circumstances of each case.
Under section 2, in determining whether the occupier of premises had discharged the common duty of care to a visitor, regard was to be had to all the circumstances. What a claimant knew, and should reasonably have appreciated, about any risk he was running was relevant to that analysis and in some cases might be decisive. In other cases, a conscious decision by a claimant to run an obvious risk might not outweigh other factors: the lack of social utility of the particular state of the premises from which the risk arose (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. That risk which was not only foreseeable, it was likely to materialise as part of the normal activity of a visitor staying in the bedroom.
On the findings of fact, the conclusions drawn by the judge 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 were unassailable. They provided a sound factual basis for determining that the appellant breached its common duty of care to the deceased under section 2 of the 1957 Act: Tomlinson v Congleton Borough Council [2003] UKHL 47; [2003] PLSCS 203; [2004] 1 AC 46 and Edwards v Sutton London Borough Council [2016] EWCA Civ 1005; [2016] PLSCS 266 considered.
(2) It followed that the issue to be addressed was whether a defence was available pursuant to section 2(5) of the 1957 Act which provided that the common duty of care did not impose on an occupier any obligation to a visitor in respect of risks willingly accepted as his by the visitor.
To succeed, it had to be shown that the deceased was fully aware of the relevant danger and consequent risk. There was 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 was no finding that the deceased waived his legal right to sue. That provided a basis for contributory negligence but did not go sufficiently far to meet the requirements of section 2(5). There were no grounds to interfere with the judge’s finding that the deceased was contributorily negligent but that that did not provide the appellant with a complete defence.
(3) As a matter of law, an occupier who was in breach of his statutory duty under section 3(1) of the 1974 Act was not ipso facto in breach of his duty to a visitor under section 2 of the 1957 Act. Although there was a need for coherence and consistency as between the civil and criminal law which applied to the same set of facts, those facts had to be explored to decide whether, and if so how, a criminal conviction related to civil liability. Account could and should be taken of the fact of the conviction and the basis upon which the plea of guilty was entered. The weight to be attached to those matters would depend upon the facts of each case. The risk was directly relevant to the tragic events which materialised. It did not follow that in every case such a chain of causation would be made out. Each assessment would be fact-specific and it did not follow that civil liability axiomatically followed an unchallenged criminal conviction in civil proceedings.
Ronald Walker QC (instructed by BLM Law) appeared for the appellant; Robert Weir QC and Andrew Evans (instructed by Enable Law, of Bristol) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of James v The White Lion Hotel
