Court of Appeal rules on hotel’s liability under section 2 of the Occupiers’ Liability Act 1957 in circumstances where the guest had run an obvious risk

By Victoria Hobbs, Louise Lanzkron, Rebecca Slater

06-2021

The English Court of Appeal in The White Lion Hotel (A Partnership) v Deborah Jayne James (On her own behalf and in her capacity as personal representative of the estate of her late husband Christopher James) [2021] EWCA Civ 31 has upheld a high court decision finding a hotel liable for the death of a guest who fell from an upstairs window. While the guest had run an obvious risk by sitting on the windowsill, and a reduction in damages for contributory negligence reflected this, acceptance of that risk did not outweigh other factors leading to the hotel’s liability.

The claim arose out of the death of the claimant’s husband which occurred after he sat on the windowsill of an upstairs hotel room and subsequently fell out of the window. The owners of the hotel pleaded guilty to offences under the Health and Safety at Work Act 1974 and the wife of the deceased subsequently issued civil proceedings claiming damages pursuant to s.2 of the Occupiers’ Liability Act 1957 (the “1957Act”) alleging a failure to take reasonable care for the safety of the deceased. At first instance, the hotel was found liable albeit with a deduction in damages for contributory negligence of 60%. The hotel appealed the decision on grounds that the deceased had accepted the risk of falling from the window and that the court should have applied 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 defendant has either permitted him to do so, or not prevented him from doing so.

The facts

The hotel is an old building and the window in question was a sash window which was situated low in the room, the windowsill being 46cm above the floor while the modern standard minimum sill height is 80cm. The height of the windowsill together with the width of the window, the opening height, and the position of the bed close to the window led a chartered environmental health practitioner employed by the local council who investigated the incident to conclude that the window in the room exposed a person to a serious hazard and such risk should have been identified and minimised by installing window restrictors.

The details of how exactly the deceased came to fall are not known, since the friend with whom the deceased was sharing a room was asleep in the room at the time of the incident. Earlier in the evening the deceased and his friend, who gave evidence at trial, had smoked a cigarette out of the window and it is known that the deceased had been struggling with the heat on the day of the incident. At trial the judge found that the deceased may have fallen when having another cigarette or trying to get some fresh air to cool down.

Duty of care

An occupier owes an ordinary duty of care to his visitors in respect of dangers due to the state of the premises under the 1957 Act. Under section 2 (2) of the Act, an occupier of a premises owes a duty of care to visitors “to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.”

At first instance the trial judge found that the hotel had breached its duty of care under section 2 of the Act due to the danger posed by the window. The trial judge used the hotel owners’ criminal conviction as evidence pointing to civil liability in respect of the hotel’s failure to discharge its duty of care. In summarising the relevant factors, the trial judge found that there was:

  1. A duty owed to a lawful visitor;
  2. A foreseeable risk of serious injury due to the state of the premises;
  3. Injury, if it was to occur, which would inevitably be very serious, if not fatal;
  4. No social value of/to the activity leading to the risk;
  5. A minimal cost of preventative measures.

The trial judge found that the deceased, in deciding to sit in the open window, had consciously accepted a risk of falling and that led to the finding of 60% contributory negligence.

The Court of Appeal

The parties accepted the findings of fact made by the judge and also the finding of 60 per cent contributory negligence. Instead the appeal related to the interpretation of the law. The Court of Appeal confirmed that the trial judge had been right to find that the hotel had breached its duty of care. In all the circumstances, applying the conclusions listed above, there was a clear breach of the hotel’s duty of care under section 2 of the 1957 Act.

However, the trial judge had been wrong to find that the hotel’s breach under criminal law of the Health and Safety at Work Act 1974 automatically amounted to a breach of duty under the 1957 Act. Whilst it was appropriate to take account of the hotel owners’ guilty plea in respect of their breach of duty under the 1974 Act, it did not follow that the chain of causation would be made out in every case where there was a breach of the 1974 Act and an unchallenged criminal conviction did not automatically mean there would also be civil liability.

Did the claimant run an obvious risk which he was permitted to do, or not prevented from doing?

The main basis of the appeal was on grounds that the judge, in finding that the deceased had recognised and accepted the risk of falling when he chose to sit on in the window, had erred in law by 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.” Such principle is derived from the common law defence of volenti non fit injura, or “voluntary assumption of risk” which is preserved in the 1957 Act under section 2(5) which provides that the common duty of care owed by an occupier “does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted as his by the visitor (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another).”

The main question for the Court of Appeal to consider was therefore whether a defence was available to the hotel under section 2(5) of the 1957 Act. The hotel relied on previous case law as authorities for 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.

The Court of Appeal found that the cases cited by the hotel were not authorities for an absolute principle which displaced the usual analysis required by section 2 of the 1957 Act. Whether there was an obvious risk run by the claimant, and the facts which they knew or should reasonably have appreciated about any such risk, was relevant to the overall analysis of whether there was a breach of the occupier’s duty of care. In some cases, the risk run by the claimant was a decisive factor in that analysis. However, a claimant’s conscious decision to run an obvious risk must be considered alongside other factors.

In this case, the Court of Appeal considered that the other relevant factors, specifically the low social utility of the state of the premises arising from the ability to open the lower sash window, the low cost of remedial measures to eliminate the risk, and the risk of an accident recognised by the guilty plea under the 1974 Act, outweighed the decision by the claimant to run an obvious risk. Furthermore, the Court of Appeal considered that this case could be factually distinguished from previous case law in this area.

In conclusion, the Court of Appeal upheld the trial judge’s finding that the hotel was liable for the deceased’s death and also upheld the 60% reduction for contributory negligence.

Occupiers can still be liable even in circumstances where risk is obvious

This case serves as a warning to those operating in the hotel sector regarding a hotel’s duty of care under the Occupiers’ Liability Act. The Court of Appeal has confirmed that even in circumstances where a person has knowingly and voluntarily chosen to run an obvious risk, the occupier can still be held liable.

The Court of Appeal acknowledged in certain circumstances, that a claimant’s decision to run an obvious risk may be a decisive factor and provide a full defence leading to an occupier being found not to be liable for injuries caused to a claimant. However, there is no absolute principle that displaces the ordinary analysis of the duty of care under section 2 of the 1957 Act, and any such risk taken by the claimant must be considered among all other relevant factors. Therefore, hotels and hotel operators ought to be mindful of their duty of care under the 1957 Act, particularly where any potential hazards can be remedied cheaply and easily.

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