Hotel Owners Found Liable For Fatal Fall

In January 2021, the Court of Appeal delivered its judgment in The White Lion Hotel (a partnership) v 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 and gave further guidance on determining liability under section 2 Occupiers’ Liability Act 1957 and the potential defence of consent.

Background

On 5 July 2015, Mr Christopher James was staying in a room on the second floor of The White Lion Hotel, Upton-upon-Severn, Worcester, having attended a wedding. At around 2am, Mr James fell to his death from the sash window of the room. He landed on the pavement approximately nine metres from the window.

The hotel owners pleaded guilty to offences contrary to section 3 of the Health and Safety at Work Act 1974 (‘HSWA 1974’) and were fined £34,000.

A civil claim for damages was brought on behalf of Mr James’ estate and dependants against the hotel owners under section 2 of the Occupiers’ Liability Act 1957 (‘OLA 1957’) – alleging a failure to take reasonable care for the safety of the deceased. Evidence was provided at the trial that the relevant window posed a serious risk to safety due to the height of the sill, the opening height and width of the window and the position of the bed close to the window. These factors created a significant risk that adults and children would fall through the window to the street below. Window restrictors, which would have minimised that risk, had been installed in some rooms. No risk assessment had been made in respect of the window in the room in which the deceased had been staying and no restrictors had been installed on that window. Restrictors were installed following the accident at a cost of £8.

The claim was successful but a deduction of 60% was made for contributory negligence. The hotel owners appealed against that decision.

Grounds For Appeal

The hotel owners sought to argue that:

• a person of full age and capacity who chooses to run an obvious risk cannot found an action against an occupier on the basis that the occupier has either permitted him to do so, or not prevented him from so doing;
• section 2(5) OLA 1957 applied, such that the hotel owners had no obligation to the deceased in respect of the risk of falling from the window;
• the trial judge had erred in holding that, as a matter of law, an occupier who is in breach of section 3 HSWA 1974 was therefore in breach of his duty to a visitor under the OLA 1957.

The Extent Of An Occupier’s Duty Under OLA 1957

Under section 2(2) OLA 1957, an occupier owes a duty to a lawful visitor to take such care as in all the circumstances of the case is reasonable to see the visitor will be reasonably safe in using the premises for the purposes for which s/he is invited or permitted by the occupier to be there. Under section 2(5) OLA 1957, the duty of care does not impose any obligation on an occupier to a visitor in respect of risks willingly accepted by the visitor.

The Decision Of The Court Of Appeal

The first question to be determined was whether the trial judge had correctly found that the deceased was owed a duty of care by the hotel owners pursuant to section 2 OLA 1957 and, if so, whether that duty had been breached. Only after determining the nature and extent of any breach under section 2, should the court proceed to consider section 2(5), which is a potential defence.

Assessing whether there is liability under section 2 requires a factual assessment of the circumstances of the case. In this case, the questions to be considered were:

• was there a danger due to the state of the premises;
• was there a breach of duty owed to the deceased in respect of that danger;
• was that breach of duty the cause of the deceased’s fall;
• should a finding be made pursuant to section 2(5) that the deceased was not owed a duty under section 2 because he voluntarily accepted the risk created by the danger?

The Court of Appeal found that the trial judge’s assessment as to the existence of the hotel owners’ duty to the deceased, 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 was ‘unassailable’.

The next issue to be addressed was whether a defence was available to the hotel owners under section 2(5). The Court of Appeal rejected the argument that a person of full age and capacity who chose to run an obvious risk cannot pursue an action against an occupier on the basis that the occupier has either permitted him to do so, or not prevented him from so doing. For the defence to succeed, the hotel owners had to show that the deceased had been fully aware of the danger and the consequent risk of injury. The deceased had fallen in the early hours of the morning, he had drunk some alcohol and was likely to have been tired. These factors should be considered when assessing his ability to fully appreciate what he was doing. It was also pertinent that the hotel owners had not appreciated the risk posed by the window prior to the accident. Whilst the level of the deceased’s awareness of the risk was therefore appropriate to make a deduction of 60% for his contributory negligence, it was not sufficient to meet the section 5(2) OLA 1957.

The Court of Appeal did not accept the finding of the trial judge that, an occupier who is in breach of section 3 HSWA 1974 or who enters a guilty plea is automatically in breach of his duty to a visitor under the OLA 1957. The weight to be attached to the conviction depends upon the facts of the case.

Appeal failed.