In Issue 4 the first instance decision was covered. In this article, the appeal is considered.
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 judge found that the Deceased had chose to sit on the windowsill and that he must have appreciated that there was the risk, if he sat on the sill or leaned out of the window, that he might fall.
The Defendant had pleaded guilty to an offence under section 3 of the Health and Safety at Work Act 1974. The basis of the plea was that the Defendant accepted that the window posed a (low) risk to an adult occupying the room and that a risk assessment would have resulted in a recommendation that window restrictors be fitted. At the civil trial no attempt was made to go behind the guilty plea.
The first instance decision
The first instance judge 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; and (v) the cost of a restrictor was minimal.
The judge considered whether, given the Deceased had been willing to run the risk of an obvious danger, the Defendant was liable under section 2 of the Occupiers’ Liability Act 1957. 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.
The judge considered whether the Deceased’s decision to lean out of the window was an intervening event which broke the chain of causation. 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.
The judge found that the Deceased had been 60 per cent contributorily negligent.
The basis of the appeal
The first instance judge gave the Defendant permission to appeal. There were three grounds of appeal:
- Whether the judge, having found that the Deceased had chosen to sit on the windowsill, 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 permitted him to do so, or not prevented him from so doing.
- Whether section 2(5) of the 1957 Act applied such that the Defendant had no obligation to the Deceased in respect of falling from the window.
- Whether an occupier who is in breach of his statutory duty under section 3(i) of the Health and Safety at Work Act 1974 was ispo facto in breach of his duty to a visitor under the Occupiers’ Liability Act 1957.
The judge’s findings of fact and his determination of the level of contributory negligence were not challenged.
Nicola Davies LJ reviewed the authorities relied on by the Appellant and found that they did not provide unequivocal support for the proposition 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 permitted him to do so, or not prevented him from so doing. She expressly found that there was no such absolute principle. The issue of a what a Claimant knew or should have appreciated about any risk he is running is relevant to the analysis of whether there is a breach of duty which may or may not outweigh other factors. Relevant factors to be taken into account included the type of activity being undertaken and the fact he was a guest in a hotel.
She supported the approach of the first instance judge saying that the judge’s conclusions as to the existence of the Defendant’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. She held that these were findings which provided a sound factual basis for a determination that the Defendant breached its section 2 common duty of care to the deceased.
Nicola Davies LJ considered whether there was a section 2(5) defence, which is the statutory equivalent of the defence of volenti non fit injuria. She recognised that the test is a high one and for the defence to succeed it must be shown that the Deceased was fully aware of the relevant danger and consequent risk. She did not consider that the findings of the judge as to the general risk which the Deceased faced went sufficiently far to meet the requirements of section 2(5). That would require a finding that the Deceased was aware of, and expressly or impliedly accepted, that the risk had been created by the Defendant’s breach of duty and by his actions he was deliberately absolving or forgiving the Defendant for creating the risk. She thought it pertinent to observe that the Defendant had not appreciated the risk prior to the accident.
Given the clear wording of section 41(1)(a) of the HSWA 1974, Nicola Davies LJ was unable to accept the conclusion of the judge that unless the conviction is challenged on its facts civil liability does axiomatically follow. Whilst she accepted the need for coherence and consistency between the civil and criminal law which apply to the same set of facts, she said that those facts need to have been explored in order to decide whether, and if so, how, a criminal conviction relates to civil liability. However, account could and should be taken of the conviction and the basis on which the plea was entered. The weight to be attached to the conviction and any basis of plea will depend on the facts of each case. In this case, the risk which formed the basis of the criminal conviction was directly relevant to the to the tragic events which materialised and so the chain of causation was made out.
This decision is authority for the following propositions:
- There is no absolute 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 permitted him to do so, or not prevented him from so doing.
- The section 2(5) defence is equivalent to the volenti defence and the test is a high one. For the defence to succeed it must be shown that the Deceased was aware of, and expressly or impliedly accepted, that the risk had been created by the Defendant’s breach of duty and by his actions he was deliberately absolving or forgiving the Defendant for creating the risk.
- Whilst civil liability does not axiomatically follow a criminal conviction, account can and should be taken of the conviction and the basis on which the plea was entered. The weight to be attached to the conviction and any basis of plea will depend on the facts of each case.
 Tomlinson v Congleton Borough Council  1 AC 46, Edwards v Sutton London Borough Council  EWCA Civ 1005 and Geary v JD Weatherspoon  EWHC 1506 (QB)