‘Risky business’ – Does accepting a risk exclude a defendant from liability under the Occupiers Liability Act 1957?

In the case of The White Lion Hotel (A Partnership) v James [15.01.21], the Court of Appeal reconsidered the duties of an occupier to a lawful visitor under the Occupiers Liability Act 1957 (OLA).

The case involved a man who fell from the second floor window of the appellant’s hotel, sadly sustaining fatal injuries. The deceased had returned to his hotel room having attended a wedding earlier that day. At approximately 2.46am, he was believed to have been sat on the sash windowsill, either to smoke a cigarette or to get some fresh air, when he fell out of the low level window onto the pavement nine metres below.

The appellant had previously pleaded guilty to offences under Section 3 of the Health and Safety at Work Act 1974. The civil claim was brought under Section 2 of the OLA, alleging that the hotel had failed to take reasonable care for the safety of the deceased. HHJ Cotter QC in the High Court found the appellant liable to the claimant (the deceased’s wife) pursuant to Section 2 of the OLA, albeit he did make a finding of 60% contributory negligence on the part of the deceased.

The appeal was based on the following issues of law:

1 The Judge had failed 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 either permitted him to do so, or not prevented him from doing so in accordance with the principles established in Tomlinson v Congleton Borough Council and others [2004].

2 Whether Section 2(5) of the OLA applied, such that the appellant had no obligation to the deceased in respect of the risk of falling from the window.

3 Whether the Judge erred in holding that, as a matter of law, an occupier who is in breach of his statutory duty under Section 3(1) of the 1974 Act was ipso facto in breach of his duty to a visitor under the OLA.

During the course of the hearing at first instance, evidence was given by the investigator for the local regulatory services, who said: “I noted that preventative measures (i.e. the installation of restrictors) had been taken in some rooms but no risk assessments had been made in respect of the windows in rooms 102, 202, 203 and 204. I consider that the serious hazard regarding falls from guest bedrooms that should have been identified are minimised by installing window restrictors.” The restrictors in question cost approximately £7 to £8 per window.

In its defence of the claim, the appellant’s relied on Section 2(5) of the OLA, which states: “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).” In making its appeal, the appellant relied on the finding of the Judge at first instance 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. The defendant relied on the long standing cases of Tomlinson v Congleton Borough Council and others [2004], Edwards v London Borough of Sutton [2016] and Geary v JD Weatherspoon [2011].

The Court of Appeal confirmed that the defence of Volenti non fit injuria was always a defence available to an occupier, and Section 2(5) of the OLA merely preserves that defence. However, if such a defence is to succeed, it must be shown that the deceased was “fully aware of the relevant danger and consequent risk”. The Court of Appeal highlighted that the occupier itself did not appreciate the risk prior to the accident, and therefore to make a finding that the deceased should possess greater knowledge than the occupier would be a “considerable step to take”. The appeal therefore failed.

This case is a reminder that whilst there is an absolute defence under Section 2(5) of the OLA, it has a high burden of proof and will only succeed in circumstances where the injured party was fully aware of the danger and the risk associated with that danger. In circumstances where the visitor is not aware of the danger then the occupier might be able to satisfy its duty to the visitor by providing a warning. However, the better course is to carry out a risk assessment and put in place suitable control measures. In this case that would have been to install low cost restrictors to all applicable windows.

Related items: Personal Injury Brief: latest decisions February 2021