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Risk assessments are the "keystone" to ensuring the safety of the public

The case of Deborah Jayne James (On her own behalf & in her capacity as Personal Representative of the Estate of Christopher James, Deceased) v White Lion Hotel (A Partnership) (2020) QBD (Bristol) (Judge Cotter QC) 09/01/2020 follows the trend of recent court judgments and stresses the importance of risk assessments as a "blue-print for action" (Allison v London Underground Ltd [2008] ICR 719).

The facts

In July 2015 the Deceased was staying at the White Lion Hotel. After having returned to his room at around 02.46 hrs, the Deceased fell to his death from the sash window of the room. It was suggested that he was either attempting to access fresh air or smoke a cigarette.

The windowsill was 46cm above floor level. The modern standard minimum sill height is 80cm. The bottom sash was 92cm wide, though the bed restricted access to 61cm of the width. It could be opened to 67cm height. The sash was faulty, and it had to be held open.

Following an investigation into the accident, the hotel owners were prosecuted under section 3 of the Health and Safety at Work Act 1974. Guilty pleas were entered on the basis that the window posed a (low) risk to an adult occupying the room.

The Deceased's wife pursued a claim against the Defendants pursuant to s.3 Occupiers' Liability Act 1957 for a failure to take reasonable care for the Deceased's safety.

The Judgment

The question for the Court was whether as a matter of objective fact the visitor in question was 'reasonably safe' in using the premises.

The Defendants had entered guilty pleas in the criminal trial, and had accepted that there was a reasonably foreseeable risk of harm to adults of falling from the sash window owing to its low position and that a risk assessment would have resulted in the installation of opening restrictors on the window.

The Judge stressed the relationship between the criminal and civil law and emphasised that it could not be right that an occupier could fail to take a positive act required by the criminal law (here to reduce the risk created by the window to the lowest level reasonably practicable) and yet be found to have taken reasonable care in civil law.

The Defendants argued that an occupier was under no duty to act when a danger was obvious, and a person voluntarily chose to run the risk of an accident. The Defendant submitted that a normal adult would recognise that there was an obvious risk that if you leant too far out of a window, you may fall. However, the Judge noted that it was conceded that a risk assessment would have required further steps to be taken. Such steps could not be avoided "on the basis that the risk was obvious, and a person would have to run it voluntarily before injury could occur".

The Defendant submitted that the Deceased's decision to lean out of the window was an intervening event which broke the chain of causation. The Judge agreed that the Deceased's acts were entirely voluntary with no element of pressure or dilemma. However, it was foreseeable and within the scope of the risk created by the Defendants that a visitor may open the lower part of a window and lean out. Whilst it was a clear act of misjudgement on the part of the Deceased, it was an act that others, particularly smokers, might take. The Judge concluded that the Deceased's act in sitting on the windowsill did not break the chain of causation. The accident was still the direct result of the Defendant's failure to apply window restrictors to a very low window.

Finally, the Defendants had submitted that the Deceased became a trespasser when he smoked in the room. The Judge also dismissed this argument as "an unattractive submission" as a visitor would not have considered themselves as a trespasser, or without the protection of the Act if they smoked out of a window.

The Judge found for the Claimant but with a finding of 60% contributory negligence.

Forbes comment

HHJ Cotter QC described an adequate risk assessment as the "keystone" to ensuring the safety of members of the public (and employees). It was suggested by the Defendants that a formal risk assessment would not have produced anything other than a statement of the obvious as was successfully argued in the Court of Appeal case of Edwards v Sutton LBC [2016] EWCA Civ 1005. In Edwards v Sutton, the risk assessment would have found a bridge with low parapets over water, which persons not exercising reasonable care might fall off. The key difference between the two cases being that a risk assessment in the instance case would have resulted in action that would have prevented the accident. If the owners of the hotel had carried out an adequate risk assessment, they would have identified the need for window opening restrictors on each window at the cost of around £7-8 per window.

Occupiers must ensure that they carry out adequate risk assessments and act upon those risk assessments to avoid criminal and civil liability.

For more information contact Sarah Wilkinson in our Insurance department via email or phone on 01254 662831. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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