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Case Review: Low windows and the high burden of proof for volenti non fit injuria

01 February 2021
In this legal update Jamie Choo Fon and Paul McGinn review the Court of Appeal's recent decision concerning a fatal accident claim brought under the Occupiers' Liability Act 1957, and the defence of volenti non fit injuria.

The White Lion Hotel v James [2021] EWCA Civ 31 (15 January 2021)

Summary

There is nothing in law to prevent an adult of full capacity who chooses to run an obvious risk from founding a claim against an occupier on the basis that the occupier has either permitted him to do so, or not prevented him from doing so. 

Facts

The claimant was a guest at the defendant's hotel and had returned to his room on the second floor after attending a wedding. The claimant had been drinking alcohol but was not drunk. In the room was a sash window which was only 46 centimetres from the ground and which opened all the way, owing to the fact that no restrictors had been fitted. The window was also defective in that it would not stay open when lifted. 

The claimant, whilst perching on the window sill with the window open (possibly in order to smoke), lost his balance and fell out of the window to his death.

The defendant had previously pleaded guilty to a criminal charge, admitting that no risk assessment had been prepared and, had this been done, restrictors would have been fitted to the sash window and the accident would have been avoided.

The claimant successfully established primary liability at first instance. It was found that the defendant had failed to risk assess the danger posed by the low window and, had an assessment been carried out, steps such as fitting restrictors would have prevented the claimant's accident from happening. The claimant's actions were in keeping with the normal activity of a visitor staying in a hotel room, and were the "facts of life" for any hotelier. However, they amounted to more than a momentary lapse of concentration and the court accordingly made a finding of 60% contributory negligence against the claimant.

Court of Appeal

The defendant appealed. 

The facts as stated above were not in dispute and the claimant did not challenge the finding or level of contributory negligence.

The defendant's appeal was based primarily on the ground that a visitor of full age and capacity who chooses to run an obvious risk cannot found an action against an occupier on the basis that the latter has either permitted him so to do, or not prevented him from so doing.

The defendant submitted that it therefore followed that the judge had erred in failing to find that s.2(5) of the Occupiers' Liability Act 1957 (the Act) operated in the circumstances. S.2(5) provides that no duty arises under the Act in respect of 'risks willingly accepted' by the visitor.  The defendant referred to, amongst others, the case of Tomlinson v Congleton Borough Council in this regard. 

The court rejected the appeal. In doing so, it confirmed that the knowledge of the claimant, and the acceptance of any risk, is simply another factor to be taken into account for the purposes of s.2(2). In cases like Tomlinson, this knowledge might outweigh the other factors such that the defendant is not liable, however, in the instant matter the low cost of the restrictor, the low social utility and the foreseeable nature of the risk arising out of the normal use of the room, all outweighed the assumption of the risk by the claimant.

In clarifying the burden for a finding of volenti, the court confirmed that the test 'is a high one'. It is not enough that the claimant knew of the risk, but instead it was necessary to show that the claimant either expressly, or impliedly, accepted the risk and had absolved the defendant of fault through his actions. The court took into account the fact that it was in the early hours of the morning and that the claimant had been to a wedding and had been drinking that day. Moreover, given that the defendant itself was unaware of the risk through lack of a risk assessment, the court was unwilling to imply more knowledge on the part of the claimant than the defendant. There was no finding that in sitting as he did, the deceased was waiving his legal right to sue. In the court's view these findings provided a basis for the determination of contributory negligence. They did not go sufficiently far to meet the requirements of section 2(5). As such the high threshold for a finding of volenti was not met, but instead the finding of contributory negligence was correct.

As a secondary point, the defendant also appealed against the first instance decision that the criminal conviction automatically means that civil liability will attach. The Court of Appeal accepted this aspect of the appeal, confirming that such a conviction can be taken into account for the purposes of determining liability, however, the weight that it carries will turn on the facts of the case.

Comment

  • The court has found that 'there is no absolute principle that a visitor of full age and capacity, who chooses to run an obvious risk, cannot found an action against an occupier on the basis that the latter has either permitted him so to do, or not prevented him from so doing'.
  • It is important to remember, and it was stressed in this case, that the question of whether or not an occupier has breached its duty under s.2 of The Occupiers' Liability Act 1957 will always turn on its own facts.
  • In this matter, the court compared the foreseeable risk of severe injury caused by the state of the premises and the inexpensive cost of minimising such risk. In the circumstances, the defendant failed to fit a £7 restrictor which would, in all likelihood, have prevented the claimant's death. 
  • This case once again highlights the importance for occupiers of carrying out sufficient risk assessments and to take steps to ensure they have done everything reasonably practicable to keep visitors safe.
  • As to the defence of volenti non fit injuria in the context of occupiers' liability claims, the court paid much regard to the activity of the claimant at the time of injury. In Tomlinson the court found that diving into a pool of water was not a 'normal' activity to be done, and as such the defendant was not held liable for preventing such an accident. By contrast, the defendant in this case ought to have anticipated that guests would open the sash windows (as that is their purpose) and would also use them to smoke out of.
  • Equally, the threshold for a successful volenti defence is a high one; it is not enough for the claimant to simply know of and accept the risk.
  • When a defence of volenti or under s.2(5) fails, the court will likely take into account these arguments for the purposes of contributory negligence. Whilst the defendant in this case was ultimately unsuccessful, the claimant's damages were significantly reduced by 60%.
  • Whilst this case does not serve to create new law, it is helpful insofar as creating further guidance as to when a defence of volenti will, and will not be successful. 
  • The court also made clear that it does not follow, that civil liability axiomatically follows an unchallenged criminal conviction in civil proceedings.

Authors: Jamie Choo Fon and Paul McGinn

Further Reading