The White Lion Hotel (A Partnership) v Deborah Jayne James (on her own behalf and in her capacity as personal representative of the estate of her late husband Christopher James)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Nicola Davies,Lady Justice Elisabeth Laing,Lady Justice King |
| Judgment Date | 15 January 2021 |
| Neutral Citation | [2021] EWCA Civ 31 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2020/0172 |
| Date | 15 January 2021 |
[2021] EWCA Civ 31
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
BRISTOL DISTRICT REGISTRY
His Honour Judge Cotter QC
E90BS678
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice King DBE
Lady Justice Nicola Davies DBE
and
Lady Justice Elisabeth Laing DBE
Case No: B3/2020/0172
Ronald Walker QC (instructed by BLM Law) for the Appellant
Robert Weir QC and Andrew Evans (instructed by Enable Law) for the Respondent
Hearing dates: 24 & 25 November 2020
Approved Judgment
This is an appeal from the judgment and order of HHJ Cotter QC dated 9 January 2020. Judgment was ordered for the claimant, the widow and personal representative of the estate of her late husband, Christopher James (the deceased), in respect of his death on 5 July 2015, when he fell from a second floor window while a visitor at the White Lion Hotel. A reduction of 60 per cent for the deceased's contributory negligence was made. The judge granted permission to appeal.
On 5 July 2015 the deceased, aged 41, was staying in a twin room on the second floor of The White Lion Hotel, Upton-upon-Severn, Worcester. The hotel is owned and operated by Jonathan Lear and his wife, Christine Lear, who trade as a partnership (the appellant). The deceased and his travelling companion, Ms Palfreyman, were attending a wedding. They returned to the hotel room following the wedding. Ms Palfreyman was asleep on the single bed next to the window, when, at around 2.46am, the deceased fell to his death from the sash window of the room. He landed on the pavement approximately nine metres from the window. His body was discovered at around 4am. The deceased was five foot seven inches tall and weighed 83 kilograms.
Following an investigation into the accident, the appellant was prosecuted for offences contrary to section 3 of the Health and Safety at Work Act 1974 (“the 1974 Act”). A guilty plea was entered upon an agreed basis.
The claim is brought pursuant to section 2 of the Occupiers' Liability Act 1957 (“the 1957 Act”) alleging a failure to take reasonable care for the safety of the deceased. A contractual term governing the provision of the room was originally pleaded but has played no part in this appeal. The judge found that the appellant was in breach of the common duty of care pursuant to section 2 of the 1957 Act in failing to take reasonable care for the safety of the deceased in using the room but made a finding of 60 per cent contributory negligence.
There is no appeal as to the findings of fact made by the judge nor as to the finding of 60 per cent contributory negligence. The points raised in the appeal are issues of law. The essence of the appeal is contained in the first ground, namely that the judge, having found that the deceased had chosen to sit on the window sill, 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, erred in law in failing 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 so doing. In so doing the judge failed to apply the ratio of Tomlinson v Congleton Borough Council [2004] 1 AC 46, Edwards v Sutton London Borough Council [2016] EWCA Civ 1005 and Geary v JD Weatherspoon [2011] EWHC 1506 (QB).
Further grounds of appeal are pursued which raise the questions:
i) does section 2(5) of the 1957 Act apply, such that the appellant had no obligation to the deceased in respect of the risk of falling from the window?
ii) did the judge err 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 1957 Act?
The facts
The deceased was a long-standing friend (and no more) of Ms Palfreyman. On 4 July 2015 he accompanied her to a wedding, held near The White Lion Hotel. They were to share room 203, in which were two single beds. The day was hot and in the afternoon the deceased had complained of feeling very hot. As a result, Ms Palfreyman arranged a fan pointing directly at the bed on which the deceased had lain. The deceased told Ms Palfreyman that he was having trouble sleeping and complained to his wife that he was feeling the heat. In her evidence, his wife stated that the deceased had been struggling with the heat for the three to four weeks before the accident. On occasions he had been so uncomfortable that he had taken his shirt off, he had also used a fan at night. During the afternoon and evening of the wedding, Ms Palfreyman saw the deceased sweating profusely, he did not appear ill. Ms Palfreyman stated that “He'd had a few drinks but was not in any way drunk”.
By the end of the wedding reception Ms Palfreyman described herself as being “pretty drunk”. Having left the reception, the deceased and Ms Palfreyman walked back to the hotel and had a cigarette in the outside smoking area. Having returned to room 203 Ms Palfreyman said that she needed another cigarette. They decided to have another cigarette, in order to do so they positioned themselves at the window.
At [10] of his judgment the judge recorded the evidence given by Ms Palfreyman as to their respective positions:
“I knelt on the floor to the right of the bedstead at the foot of my bed …. I do not remember clearly whether CJ was sitting or lying on the bed, but our bodies were both inside the room and we were holding our cigarettes as far out of the open lower sash window as we could and blowing the smoke out of the window.… We were not ‘hanging’ out of the window. I cannot remember exactly how the bottom sash windows held open at this time, but we were probably both propping or holding it open. The top sash window had been open when we first arrived in the room that afternoon. We had opened the bottom sash window earlier in the afternoon, because the room had been extremely hot and CJ had been complaining that he felt physically hot, but the sash mechanism of the window was broken so it wouldn't stay open on its own and had come crashing down. CJ had tried to wedge it open in the afternoon but hadn't succeeded. …”
When the deceased and Ms Palfreyman had finished their cigarettes, Ms Palfreyman lay on her bed fully clothed and fell asleep.
Evidence was given by the investigator for Worcester Regulatory Services. He confirmed the height of the sill in the room as being 460 millimetres. The modern standard is that this height should be no less than 800 millimetres. The maximum opening of the lower sash was 650 millimetres, which increased to 670 millimetres with the top sash opened. In his evidence he stated that:
“I thought the window in room 203 exposed any person to serious risk to their safety due to the height of the sill, the opening height and the width of the window, and the position of the bed close to the window. There was enough room for persons to fall through the window, including young children who could easily roll from the bed, through the window, and down to the street below. 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 should have been identified are minimised by installing window restrictors.”
Restrictors costing £7 to £8 per window were subsequently installed following the service of a prohibition notice on 9 July 2015.
Criminal prosecution
The appellant was prosecuted by Malvern Hills District Council pursuant to section 3(1) of the 1974 Act. The particulars of the offence included the following:
“… between the 1 st January 2013 and the 10 th July 2015, being an employer, failed to conduct your undertaking, namely the provision of hotel accommodation from The White Lion Hotel … in such a way as to ensure, so far as was reasonably practicable, that persons not in your employment who may affected thereby, were not exposed to risks to their health and safety.”
The following agreed basis of plea was entered by The White Lion Hotel partnership:
“1. The Partnership took their health and safety responsibilities seriously.
2. However, they accept that before the accident they did not carry out a suitable and sufficient risk assessment of the windows in their hotel bedrooms.
3. Before the accident they did not appreciate that those windows presented a risk. However, they accept that the sash windows did present a low risk that someone may injure themselves and that restrictors should have been put in place.
4. The processes in the hotel have improved and no risks remain.”
On 9 February 2018 HHJ Cole imposed a fine of £34,000, credit having been given for the guilty pleas. An appeal was unsuccessful.
At the civil trial no attempt was made to go behind the guilty plea. At [48] the judge stated that:
“Had the risk identified by the prosecution, which the criminal law required to be addressed, actually been addressed (the obvious course was that actually adopted; the use of window restrictors) then the Deceased would not have been able to fall as he did.”
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