Claim dismissed as Judge describes accidental fall as 'fanciful'

Barry Forsyth v Christine Bintcliffe T/A Carnforth Hotel

Following a four day liability trial Clyde & Co has successfully secured the dismissal of a claim under the Occupiers Liability Act. The claim arose from an accident that occurred in the early hours of the morning when the claimant sustained injury after falling from his first floor hotel room.

The facts of the case

On 7 September 2016 Mr Forsyth and a work colleague arrived at the Carnforth Hotel with a request for a room for the night. The claimant accepted that he had consumed alcohol (possibly a large amount) in the hotel bar and it was determined that he was likely intoxicated. He suffered fractures to the heel areas of both feet and whilst unable to recollect the circumstances himself, the evidence pointed to him having lost both his balance and grip whilst sitting on the outside window sill of his first-floor room; subsequently falling 16ft to the pavement below.

Within the Particulars of Claim, the claimant pleaded that the defendant had breached its statutory duty under Section Two of the Occupiers Liability Act 1957. It was alleged that the defendant was negligent in:

• Failing to fit a locking device on the window to prevent persons from falling through it.
• Failing to install a block to prevent the window from being opened fully.
• Causing, allowing, or permitting the window to open to such an extent that visitors could easily fall from it. 
• Failing, when the window was large enough for visitors to fall out of, to ensure that the same was suitably restrained to prevent any such fall exposing the claimant and other visitors to an unnecessary possibility of risk.

Within the defence, it was contended that the condition of the window was such that the claimant, as a visitor, was reasonably safe; it did not open sufficiently for someone to fall through it, and it was not reasonably foreseeable that an adult would behave in such a way that an occupier would need to fit a limiter or guard. It was argued that the claimant was the author of his own misfortune and, if there were any breach, it was not causative. Whilst the defendant was an occupier for the purposes of the Occupiers’ Liability Act, the scope of her duty of care was restricted to matters within her control; it was argued that her obligation in her lease was to keep the windows and interior in good tenantable repair and condition, but that she was under no obligations regarding the structure. It was contended that the window in question was part of the structure and there was therefore no obligation to make the alterations suggested.

The defendant obtained witness evidence from the landlord of the Hotel, her sister, a member of the bar staff and a gentleman who accompanied the claimant and his colleague back to their room on the evening in question. It was the latter’s evidence that, before leaving the room, he had witnessed the claimant contort himself and duck under the windows lower sash in order to sit on the outside ledge and smoke cannabis. He did not however witness the incident itself.

Both parties obtained expert evidence although HHJ Dodd commented that, whilst impressive witnesses, he could gather little assistance from either on the matters actually in issue.

Judgement

When assessing whether the defendant was in breach of its duty to take reasonable care of the claimant whilst staying at the Hotel, HHJ Dodd adopted the non-exhaustive list of factors in Butcher v Southend‑on‑Sea Borough Council [2014] EWCA Civ 1556, those being:

• the foreseeability of injury
• the purpose of the visit
• the conduct to be expected of the visitor
• the state of knowledge of the occupier
• the difficulty in uncovering the danger
• the cost of rectification
• the loss of social value arising from the rectification
• reliance upon a third party

It was agreed that the cost of rectification, the loss of social value and any reliance upon a third party would have been minimal.

With regards to foreseeability of injury, it was determined that whilst it was clear that anyone falling from the window (or sill) would likely suffer serious injury, the prospects of the claimant doing so would have seemed vanishingly small prior to the accident. 

Having completed a detailed analysis of the dimensions of both the window and the sill in question (assisted in that regard by the experts), HHJ Dodd determined that even for a small active man such as the claimant it would not have been a straightforward task to fall out. The idea of someone accidentally falling out struck him as fanciful and would require something akin to a perfect swallow dive.

It followed that the defendant was not in breach of its duty of care to the claimant by omitting to fit limiters or a guard.

On the subject of the extent of the defendant’s control of and obligations in respect of the Hotel HHJ found as follows:

1. Had the defendant carried out any sort of risk assessment, she could reasonably have concluded that no works were in fact required. 
2. It was not the defendant’s responsibility. She did not have the power to carry out the suggested works. She could have asked permission but the fact that permission was required tells against it being a breach not to take the suggested precautions. 

HHJ Dodd went on to comment on the issues of both Volenti and Novus Actus Interveniens before concluding that, had he found the defendant was in breach of its statutory duty, he would have assessed the claimant’s contribution at 90%.

What this means for you

It is not uncommon to be asked to advise on claims arising from accidents that fall under the remit of the Occupiers Liability Act. What this case shows is that it is vitally important to deal with each on its own facts. The importance of an early collaborative approach cannot be underestimated in having contributed to the desired outcome.

The judgment is particularly important given it follows the Court of Appeal’s decision in James v White Lion [2021] EWCA Civ 31; a decision the claimant in the index case sought to rely upon throughout. Whilst the index case did not ultimately fall to be determined by arguments on either Volenti or Novus Actus the judgment provides helpful guidance on the Court’s approach to cases in which such defences are pursued. If a defendant can demonstrate that a claimant was fully aware of both the relevant danger and the consequent risk of an action, a Volenti defence may well be worth pursuing. Similarly if a defendant can demonstrate that the action of a claimant was not only entirely unforeseeable but also deliberate, arguments of Novus Actus should be considered.

Finally, this case serves as notice that on matters in which the liability position is considered strong, insurers are willing to defend claims to trial; even those cases in which the claimant benefits from QOCS protection.

*This content was written by BLM prior to its merger with Clyde & Co*