Looking again at the defence of volenti non fit injuria in Occupiers cases

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25 January, 2021

The defence of volenti non fit injuria provides a defence to a claim where a defendant who would otherwise be liable in negligence can show that the claimant, being fully aware of the risks, knowingly or willingly takes the risk. In doing so a claimant cannot then seek compensation for any harm that arises as a result.

The Court of Appeal has recently considered the scope of such a defence in the Occupiers Liability context in the case of The White Lion Hotel v James (Deceased) (2021) EWCA Civ 31.

Mr James fell to his death from a 2nd floor sash window of the hotel room in which he was staying. His wife brought a claim in respect of that death. The hotel had pleaded guilty to a prosecution for offences contrary to S3 Health and Safety at Work Act 1974 and the widow's claim was subsequently brought under S2 of the Occupiers' Liability Act 1957 (OLA).

Mr James had been to a wedding prior to his fall. He had consumed alcohol but was said not to be drunk. At the time of the accident he had opened the sash window of his hotel room and had been sitting on the ledge, either to smoke or get some air, keeping the sash window open, as it did not stay up of its own accord. His balance altered for some reason and he fell to the ground. The bottom of the window was only 46 cm from the ground. An expert witness explained that a modern standard height for a window ledge is no less than 80 cm, and stated that he considered that the window posed a serious risk to persons using it, especially due to the close proximity of the bed to the window. Restrictors preventing the sash windows being fully opened from the bottom had been installed in some of the hotel rooms, but not this one. They had a cost of around only £7 or £8.

The trial judge found the defendant hotel liable for breach of S2 of the OLA, namely a failure to take reasonable care for the safety of the deceased. The decease was said to be 60% contributorily negligent. The hotel appealed on the basis that the judge having found that the deceased chose to sit on the window sill, and having recognised and accepted the risk of falling from the window due to leaning out too far or losing his balance, he then erred in law in failing 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 so doing and in that respect they relied on S2(5) of the OLA which states:

(5) 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).

The Court of Appeal stated that the first question to be asked in such cases was whether the deceased was owed a duty of care by the defendant, which it said was based on a factual assessment of the particular circumstances of each case. The court had to consider;

  • Was there a danger due to the state of the premises?
  • Was there a breach of duty in respect of that danger to the deceased?
  • Was the breach the case of the fall?
  • Then finally, and only after the above, should a finding have been made pursuant to S 2(5) OLA that the deceased was not owed that duty by reason of his voluntary acceptance of the risk created by that danger.

The Court of Appeal decided that the state of the window was a danger, that there had been a breach of the hotel's duty of care to the deceased as a result of that danger, and that it was the primary cause of the fall. In concluding this the Court of Appeal said that there was a foreseeable risk of serious injury due to the state of the premises, there could not be said to be any social value in the activity leading to the risk, and the cost of preventative measures was minimal.

In dismissing the hotel's arguments under S2(5) OLA the Court of Appeal said that the authorities relied on did not assist the Hotel. In previous cases of assumption of risk that went against the injured party no breach of duty had been found and that was a pre requite for going on to consider S2(5).

The leading judgement concluded 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 for so doing.

Forbes Comment

Volenti non fit injuria remains a defence on the right circumstances, and previous authorities on that point have not been overturned. This recent case was fact specific and the judgment is helpful in setting out the matters to consider when looking at assumption of risk. Whilst the Court of Appeal and the lower court found against the defendant hotel due to the findings about the danger posed by the sash window the unappealed contributory negligence finding of 60% took account of the claimant's own responsibility for the accident whilst acknowledging the fault on the part of the hotel.

The Court of Appeal also stated that whilst a criminal conviction is a relevant factor, it does not follow …… that civil liability axiomatically follows an unchallenged criminal conviction in civil proceedings.

For more information contact Siobhan Hardy in our Insurance department via email or phone on 0113 386 2686. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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