19 July, 2018
Philip Clay v TUI UK LTD (2018)  EWCA Civ 1177 CA (Civ Div) (Kitchin LJ, Hamblen LJ, Moylan LJ) 23/05/2018
The Court of Appeal have for the first time in a number of years considered when the actions of a claimant might break the chain of causation.
Mr Clay had been on a package holiday in Tenerife with his wife, their two children and his parents. He and his wife and children were staying in one room and his parents were staying next door. One evening, whilst the children were asleep in their room, Mr Clay, his wife and parents were having a drink on his parents' balcony. Mr Clay went to use the toilet, but upon returning to the balcony he closed the sliding door which inadvertently locked, trapping the family on the balcony.
For 30 minutes the family attempted to attract attention, after which Mr Clay decided to step across from his parents' balcony to the balcony of his room. In doing so, he stood on a ledge which gave way. He fell to the terrace below and fractured his skull. He brought a claim against the holiday operator.
At first instance the judge found that the lock on the sliding door was defective and a breach of local standards for which the holiday was liable. However, he concluded that the claimant's act, in trying to step across to his own balcony, was so 'unexpected' and/or 'foolhardy' as to be a novus actus interveniens (i.e. an intervening unforeseeable event that occurs after the defendant's negligent act).
Mr Clay unsuccessfully appealed the decision. The Court of Appeal found that although the holidaymaker and his family had been trapped on the balcony as a result of a defect in the locking mechanism of the balcony door for which the company was liable, the holidaymaker's attempt to climb onto the neighbouring balcony was so unreasonable in the circumstances that it broke the chain of causation.
A defendant is liable for a consequence which is reasonably foreseeable, unless the court finds that the damage was caused by an intervening act by the claimant ("novus actus interveniens").
In this instance, the Judge was of the view that the great and obvious danger involved in standing on the ledge outweighed the inconvenience faced by the family. There was no imminent emergency requiring the claimant to take such a risk, but nevertheless the claimant chose to expose himself to real danger and to an obvious risk of death or serious personal injury. Standing on the ledge was a new and independent act which eclipsed the prior breach of duty. The conduct was deemed to be voluntary, considered and deliberate.
However, the dissenting judgment from the Court of Appeal judge, LJ Moylan, proves that it is often difficult to differentiate between situations where the claimant's conduct in some way contributes to the loss or damage, resulting in a reduction in a damages award and an intervening act which completely breaks the chain of causation and results in no damages being awarded.