Mrs James v The White Lion Hotel  1 WLUK 39
This article originally appeared in Issue 4 (March 2020).
The Deceased fell out of the sash window of a second-floor hotel room in the middle of the night and died. The sill of the window was much lower than normal. The sash was also defective as the window would close under its own weight unless held open. There were no witnesses to the fall and the Defendant contended that the Deceased had been smoking a cigarette at the time. The Deceased must have appreciated that there was the risk, if he sat on the sill or leant out of the window, that he might fall.
The criminal proceedings
The Defendant was charged with an offence under section 3 of the Health and Safety at Work Act 1974.
The health and safety failings alleged by the prosecution could be summarised as:
(a) failing to carry out a suitable and sufficient risk assessment;
(b) failing to identify the risks associated with low-silled windows;
(c) failing to use window restrictors.
The Defendant pleaded guilty after a submission of no case to answer had failed. The basis of the plea was that the Defendant accepted that the window posed a (low) risk to an adult occupying the room.
The relevant provisions of section 2 of the Occupiers’ Liability Act
s. 2(2) The common duty of care is a duty 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.
s. 2(3) The circumstances relevant for the present purpose include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases—
(a) an occupier must be prepared for children to be less careful than adults; and
(b) an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so.
s. 2(5) The common duty of care 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).
What was the effect of the criminal conviction?
HHJ Cotter QC acknowledged that sections 2-8 of the Health and Safety at Work Act are unenforceable in civil law and that the functions of civil and criminal law are quite different. However he rejected the Defendant’s argument that the criminal conviction was irrelevant, finding that by the guilty plea (1) the Defendant accepted that there was a reasonably foreseeable risk of harm to adults if falling from the sash window and (2) the Defendant admitted that a risk assessment would have resulted in the use of measures to address the risk (i.e. window restrictors). Accordingly, the effect of the guilty plea was to prove some of the ingredients necessary to establish civil liability.
Liability under the Occupiers’ Liability Act
The court found that:
i. the Defendant owed the Deceased a duty;
ii. there was a foreseeable risk of injury;
iii. any injury would inevitably be very serious;
iv. there was no social value to failing to restrict the window opening;
v. the cost of a restrictor was minimal,
The court then had to consider whether, given the Deceased had been willing to run the risk from an obvious danger, the Defendant was not liable.
The judge found that the common law defence of ‘volenti non fit injuria’ differed from the section 2(5) defence. The volenti defence operates where a Claimant voluntarily accepts a risk negligently created by the Defendant’s negligence whereas the s.2(5) defence only bites if there is no obligation to act under s.2 and thus no negligence.
When deciding whether there was a breach of statutory duty, the judge noted that sections 2(2) and 2(3) required occupiers to conduct a risk assessment taking into account that visitors may not be careful. He decided that the criminal conviction resolved the question of whether or not a risk assessment was required and that such a risk assessment would have required steps to be taken to reduce the risk. Given that there was an obligation to act and that the steps taken in response would have avoided the Deceased’s death, he held that the obligation to take such steps could not be avoided on the basis that the risk was obvious and a person would have to voluntarily run the risk before injury could occur. He concluded that “the civil law surely cannot regard a step required under the criminal law as unduly paternalistic. Rather the expectation should be that primary liability should follow a failure to take a step required by the criminal law.”
The Defendant also argued that the Deceased’s decision to lean out of the window was an intervening event which broke the chain of causation. The Claimant argued that the Deceased’s actions and decision making in this case could not be equated to the conscious risk taking involved in climbing from one hotel balcony to another or jumping headfirst into a small inflatable pool.
The judge, in deciding where to draw the line, considered the three considerations identified by Aikens LJ in Spencer v Wincanton  EWCA 1404. He found that the Deceased’s conduct was reasonably foreseeable, entirely voluntary and that “there was a high but not a very high degree of unreasonableness”. By a narrow margin, he found that the Deceased’s act in sitting on the windowsill did not break the chain of causation; the accident was still the result of the Defendant’s failure to apply window restrictors to a very low window.
This is an example of the court having to decide where to draw the line between a defendant being held primarily liable and there being no such liability. The basis of the Defendant’s guilty plea to the section 3 HSAW offence assisted in establishing many of the ingredients required for a breach of statutory duty in civil law. It is plain that the un-onerous nature of the step required to avoid the risk, i.e. fitting window restrictors, was a material factor in the judge’s conclusion that liability was established.
The judge found that the Deceased’s risk-taking did not break the chain of causation, but only by a narrow margin. One can well see that in many cases a claimant’s risk-taking might be sufficient to break the chain of causation.
NB: Since the article was written, the decision was appealed to the Court of Appeal – link here.