Clare v Perry (t/a Widemouth Manor Hotel)

LORD JUSTICE PILL: This is an appeal against a judgment of His Honour Judge Overend, delivered on 31st August 2004 at the Exeter Crown Court. Judgment was given for Mrs Lorraine Ann Clare, the claimant in an action for damages for personal injuries, against Mr Roderick W Perry, trading as Widemouth Manor Hotel, the defendant.

The claimant was injured when leaving the hotel at about 1.00 am on 29th March 1998. The claimant, who was then aged 44, suffered substantial injuries. She was found contributorily negligent to the extent of 50 per cent. The trial was on the issue of liability only, and an order was made for damages to be assessed.

The claimant, her partner Mr Crossley, and his daughter, spent the evening of 28th March 1998 at the Widemouth Manor Hotel, which is some distance from Bude. After midnight, they did not obtain seats on a courtesy bus service which ran from the hotel to Bude. While waiting for the next service, they decided to leave the hotel and cross the road outside it to have a look at the nearby sea and coastal lights. There is a drop between the hotel car park and an adjoining area of grass, and the public road below. A Devon stone boundary wall adjoins the road, and varies in height from about 3 feet to about 6 feet at the point where the claimant attempted to leave the premises. There was an at-grade access to the premises a short distance away at the entrance to the hotel car park.

The judge described how the accident happened (paragraph 4):

The judge referred to the evidence of the claimant (paragraph 10):

When dealing at the end of his judgment with the allegation of contributory negligence, the judge stated:

The allegations against the defendant were that he failed to warn the claimant of the nature of the sheer drop, that he failed to guard or to fence or light or restrict access to the wall, and failed to heed other accidents. The judge rejected the allegations of failure to warn and of failure to light. He rejected the allegation that there had been previous accidents. There were two accidents subsequently, but it was not suggested on the claimant's behalf that they are material to the issues in the case.

The judge found that there was a breach of duty in a failure to fence. The judge stated, paragraph 13:

There was no finding that persons might be expected to approach the edge of the wall, or that persons walked in that area. There was no finding that,it was foreseeable that visitors would deliberately jump off the wall. The finding was confined to a finding that, if persons approached it, it was foreseeable that they might fall over the edge.

Dealing with causation, the judge stated, at paragraph 15:

The judge found that the claimant was 50 per cent to blame (paragraph 16):

Several years after the accident, an area of fenced decking was erected on the bank from which the claimant descended. It is now described as "a beer garden", and photographs show tables which appear to be fixed tables and benches formally set out within the fenced area. It is not suggested on behalf of the defendant that fencing is other than appropriate in circumstances as now exist.

Sections 1 and 2 of the Occupier's Liability Act 1957 ("the 1957 Act") provides, insofar as it is material; section 1(1):

Subsection 2:

On behalf of the defendant, Mr Grice submits that the absence of fencing did not constitute a breach of duty. The claimant attempted to leave the premises away from the main frontage of the hotel when there was a designated driveway and exit within a very short distance. There was no reason to suppose that a person leaving the hotel at night would do so at the point and in the manner attempted by the claimant. The judge described the choice of route as "unexpected".

Mr Grice further submits, if that submission fails, that even if the standard of care required in relation to an accidental fall was not achieved, it does not follow that there was a breach of duty to the claimant. The duty to prevent an accidental fall does not involve a duty to prevent a deliberate jump. An occupier does not have to guard against all possible foolishness, he submits.

Even if a fence provided to guard against an accidental fall would coincidentally prevent a deliberate jump, a breach of duty was not involved. Mr Grice relies on the case of Darby v The National Trust [2001] PIQR P27. He accepts, in further submissions on this point, that if there was evidence of a practice of deliberately jumping from the premises at the relevant point, the occupier's duty might include, if the appropriate standard is to be achieved, a duty to guard against such conduct.

For the claimant, Mr Dingle submits that the judge was entitled to find that there had been a breach of duty. Both common sense and the subsequent fencing of the area, he submits, support the judge's conclusion. Mr Dingle relies on the statement of Lord Steyn in Jolley v Sutton LBC [2000] 1 WLR, in the context of foreseeability of an accident, that cases such as these are "inevitably very fact sensitive". He submits that if he succeeds on the first point, and there is a duty of care in relation to an accidental fall, that duty would, in the circumstances, extend to a deliberate jump, such as that of the claimant.

There is no doubt that the defendant, as occupier, owed a duty of care to the claimant as a visitor to his premises. The case turns primarily, in my judgment, on the standard of care required in the circumstances. The question is: what conduct is reasonably required of the occupier in the particular circumstances? As Asquith LJ stated in Daborn v Bath Tramways Motor Company Ltd [1946] 2 All ER 333, 336:

"In determining whether your party is negligent, a standard of reasonable care is that which is reasonably to be demanded in the circumstances."

As to that, guidance appears in the decision of the House of Lords in Tomlinson v Congleton Borough Council & Anr [2004] 1 AC 46. An 18-year-old claimant was injured in a lake that had formed in a disused quarry which was part of a country park occupied by the local authority. From a standing position in shallow water, he dived and struck his head on the sandy bottom. It was conceded on his behalf that he was a trespasser, and it was a breach of duty under the Occupier's Liability Act 1984 which was alleged. The claim failed in the House of Lords.

The claim was made, as Mr Dingle pointed out, by the claimant as a trespasser, but Lord Hoffmann, with whom Lord Nicholls of Birkenhead and Lord Hobhouse of Woodborough agreed, stated (paragraph 50) that he would have reached the same conclusion had the council owed a duty under section 2(2) of the 1957 Act. Lord Scott of Foscote, concurring, declined to accept that the claimant was a trespasser and concluded (paragraph 91) that the alleged duty was a 1957 Act duty.

While the case was in the context of a local authority providing recreational facilities, general statements of their Lordships as to the standard of care required of an occupier are material in the present case.

Lord Hoffmann cited the statement of Scrutton LJ in the Calgarth [1927] P 93 at page 110:

That statement was made in the context of a ship using a navigable channel other than in the ordinary way of navigation.

Lord Hoffmann stated, at paragraphs 45 and 46:

Those statements come under the heading "Freewill", and primarily address the question whether people should accept the risks that they run. But they do throw light on the other side of the equation, the extent of the duty of occupiers of premises towards visitors to premises such as hotels.

Lord Hutton, concurring, having referred to Scottish cases, stated, at paragraph 59:

The facts in this case, as found by the judge, are not in dispute, and Mr Grice makes no attempt to urge different findings. In determining whether, on particular facts, the standard of care has fallen below that required of an occupier, the court will, of course, pay considerable respect to the judgment of the trial judge, but is required to assess for itself whether, on the evidence and findings of the judge, a breach of duty has occurred.

I have referred to the judge's findings, in particular those at paragraphs 13 and 16 of his judgment. The judge's finding that there was no need to warn the visitors of a risk and no need to light the relevant area are themselves pointers to whether a precaution such as fencing was required. Achieving the appropriate standard of care will often require such warning and, if the premises are used at night (as these were), such lighting. I have to say -- and I do so with regret -- that the claimant's conduct leading to her injury was very foolish, and in stating that, I rely on the judge's findings and comments already cited.

In considering whether precautions are reasonably required in a particular situation, the court must have regard to the behaviour which is reasonably to be expected of visitors. Not only was there no evidence of other similar accidents, but there was no finding of visitors approaching the wall and subjecting themselves thereby to the potential risk, which was the risk the judge identified at paragraph 13.

In the circumstances of this case, I do not consider that the defendant fell below the standard of care required of him by not fencing the area above the place where the claimant descended to the road. The achievement of the appropriate standard does not, in this case, extend to protecting people against the foolhardy and unexpected conduct which occurred, that is leaving the premises in the place chosen when there was a perfectly good access and egress a very short distance away, and doing so in the manner described by the judge.

That being so, the question which has led to submissions on Darby, and the alternative submission put forward on behalf of the defendant, does not arise.

In Darby, the claimant's husband was drowned whilst swimming in a pond on National Trust property. The claimant contended that there should have been "No swimming" notices around the pond. The judge accepted that submission.

This court held, allowing the appeal and dismissing the claim, that the risks to competent swimmers who are bathing in the pond are obvious, and that there was therefore no obligation to warn against swimming. The additional submission by the claimant that the risk of Weils disease required warning notices and that, had they been present, they would have prevented the claimant's husband from swimming, could not support a claim for damages resulting from a quite different cause.

Giving the leading judgment, May LJ put it this way at paragraph 25:

At page 1092 in Jolley, Lord Hoffmann stated:

May LJ went on to hold, in Darby at paragraph 27:

Mr Dingle submits that the decision in Darby is distinguishable because the risk arose from the change of level, and a distinction, for these purposes, should not be drawn between a deliberate jump and an accidental fall.

I have to say that I do not find the decision an easy one to apply in the present context, though I repeat that, on the view I have taken, it does not arise, and I add these words only in deference to the submissions of counsel. Had there been a breach of duty in relation to the accidental fall, it would have depended on the basis on which it was found, and the evidence which led to it, as to whether the principle in Darby applied.

There could have been circumstances where I would not have reversed the judge's finding on causation at paragraph 15 of his judgment. The question is hypothetical but on appropriate evidence the judge would, in my view, have been entitled to conclude, on a balance of probabilities, that a stout fence would have deterred the claimant from taking the action which she did, and instead to leave the premises by the route provided.

I do not consider that the decision in Darby necessarily prevents such a conclusion on causation. The potential risk arose in the present case from a sudden change of level, whether that materialised accidentally or deliberately.

It is also submitted by Mr Grice that the appeal should be allowed on the basis that the claimant assumed the risk of the injury which occurred. I would not have dismissed the claim on the basis that the claimant willingly accepted the risk, because, on the evidence, she did not have a full appreciation of it.

As to his submission that, even had he been unsuccessful, the degree of contributory negligence should be increased, that too would, to a degree, depend on the basis upon which a breach of duty had been found to be present. I would not, however, have been likely to have disturbed the judge's finding on contributory negligence. Where two parties are each found partly responsible for an acciden, an appellate court is reluctant to interfere with the trial judge's discretion as to apportionment (National Coal Board v England [1954] AC 403 at 420, per Lord Porter). It is unlikely that I would have been prepared to do so in this case.

For the reasons given, however, I would allow this appeal. It is of course unfortunate that the claimant, who has had substantial injury, is not, on my findings, to be compensated. But as Lord Hoffmann stated in Tomlinson at paragraph 4:

LORD JUSTICE MANCE: I have found this a difficult case, even more so, I suspect, than either of my fellow judges, but I concur with some doubt with the conclusion which I understand that they both reach that this appeal should succeed. The judge has found, in paragraph 13, that the landlord has to take reasonable steps to ensure that his visitors are reasonably safe and, in my judgment, that included a duty to fence off the edge of the Devon wall at the point where it was 6 or 7-foot high. That was a relatively cheap exercise, and it was certainly foreseeable that persons might fall over the edge if they approached it.

However, the fact that it was reasonably foreseeable that persons might, by mishap, fall over the edge if they approached it does not necessarily answer the question of whether it was reasonably foreseeable that visitors would deliberately try to descend the wall at this point, mistaking its height in the dark.

I am inclined to think that these are different risks, for the purposes of liability and negligence,even though both might well have been avoided by a fence: see Darby v National Trust [2001] EWCA Civ 189, PIQR page 27, to which my Lord has referred. One is a risk of mistakenly falling over a wall, and the other is the result of a deliberate attempt to descend it.

I have to say, however, that I do not feel particularly confident about that conclusion, having regard to the uncertainty of the distinction which is illustrated by comments of Lord Steyn and Lord Hoffman in Jolley v Sutton LBC [2000] 1WLR 1082, pages 1090D, and 1093A-C. Lord Steyn pointed out that it all depends on the scope of the two modifiers, the precise manner in which the injury came about and its extent, and that no definitive answer is provided by either The Wagon Mound No 1 [1961] AC 388, or Hughes v Lord Advocate [1963] AC 837. What is necessary is to determine, in the context of an intense focus on the circumstances of each case, whether one is considering a risk of the same description, or a risk of a different description or, as Lord Hoffmann put it at page 1091D, a different genus.

Lord Hoffmann, at page 1093 A-C, referred to a comment of Lord Woolf MR in the Court of Appeal. He had said:

Lord Hoffmann said:

The present case is not concerned with a child. There is, it seems to me, a distinction in kind between injury by mishap, in falling over a wall, and injury as a result of a deliberate choice to jump off a wall.

The former was originally alleged in the pleadings in this case. The latter is, as I see it, what actually occurred on the evidence recorded by the judge, see paragraphs 4, 8-10 and 16. At paragraph 4 he recited the claimant's reasoning for her jump, namely that she thought she could do so safely because Mr Crossley had done so shortly before. He referred to her evidence at paragraphs 8-10, explaining that she had a false impression of how steep it was, and that it was a greater height than she expected, although in her pleading she had said simply that in the darkness the height was invisible.

At paragraph 16, the judge said:

I think he was there probably accepting that she was, to some degree at least, misled, or to some degree misled herself. That seems also to be the inference from the evidence, since in the absence of any other explanation such as drink, which the judge excluded, it is probably the only sensible explanation of why she chose to approach the particular corner she did.

That persons would seek to negotiate the grassy bank and low wall which ran along most of the main front of the hotel as Mr Crossley, the claimant's partner, successfully did, seems fairly likely, although the judge has made no findings about this. If that is so, then it might be asked, why there was not a foreseeable risk that persons like the claimant might be misled into thinking that they could also descend further along in the far-right corner near the sea.

That risk could have been addressed by the fence which the judge thought should have been put up to prevent casual falls, and I think it probably would have been prevented, had there been such a fence; it might have been prevented by a warning notice. However, there is no respondent's notice in this case seeking to re-visit the judge's dismissal of the claimant's case based on failure to warn, a case which the judge rejected solely on grounds of causation, Nor is there any respondent's notice seeking to support the general finding made by the judge in paragraph 13 of failure to ensure the safety of visitors by erecting a fence, on the basis that there was a risk of persons mistakenly thinking that they could negotiate the corner area of the front of the hotel in order to reach the lower road level.

The inference from the judge's judgment seems rather to be the contrary. In other words, it seems that the only risk that he had in mind was a risk of casual falling, and as I have said, I am inclined to agree, that this should be regarded as a distinct risk.

Moreover the judge, in paragraph 16, in dealing with contributory negligence, went on to refer to the claimant making "a deliberate choice [...] to leave premises by an unexpected route by the edge of a bank known to be there where a jump had to be made and where there was no sight of the ground below."

That corner was some 15 or 20 yards along from the main front where the claimant's partner had descended onto the road. It seems to me that the claimant had no real reason to think that the nature or height of the bank or the wall would be the same in that corner as it was in front of the hotel farther up the road going inland, and in fact it was not the same. There was, in particular, no grassy bank with a low wall in front; and there was simply a steep and taller wall.

The claimant accepted, by her amended case, that she could see the edge of the steep wall, and she went up to it and she deliberately jumped off it. She could not, she said, see its depth; she simply assumed it would be jumpable. It seems to me there was no real basis for that assumption, and the judge expressly did not find that it was foreseeable that the claimant would jump. On the contrary, he described what happened,in the terms as I have already quoted.

I am therefore prepared to join in the conclusion that this appeal should be allowed on the basis that what happened was not the result of any breach of duty to avoid any risk of the kind of injury that occurred. Any risk of injury by simply falling over the edge was, in the circumstances, different, and never materialised.

I have even more difficulty in joing in any criticism of the judge's conclusion that it was foreseeable that someone would fall off this particular part of the wall, casually or by simple mishap. It is true that there appears to be no evidence of any such case occurring in or near the corner. But the photographs do lead me to have some sympathy for the judge's conclusion on this point, particularly if one thinks people were playing or walking carelessly near the edge. Further back there was in fact a car park and some benches. But, as I have said, it seems to me that an adult deliberately deciding to scale or jump down the face of an obviously steep wall is another matter.

LORD JUSTICE KEENE: I also agree that this appeal should be allowed, and I wish to add a few comments of my own. It is quite clear from the judge's findings, to which both my Lords have referred, that the claimant in this case deliberately chose to jump down this drop, knowing that she could not see the road or ground below because of the darkness. In other words, this was not an accidental fall down the drop.

It therefore becomes necessary to examine, in the light of that finding, the judge's reasoning which led him to find the defendant liable under the Occupier's Liability Act 1957. That reasoning seem to have been as follows: first, the judge found that there was a breach of the duty of care to visitors in failing to take reasonable steps to prevent falls, by which he meant accidental falls, down the wall or drop. See paragraph 13 of his judgment. He found that it was "foreseeable that persons might fall over the edge if they approached it."

Secondly, he also found, in effect, that it was not foreseeable that visitors would choose deliberately to leave the premises by this "unexpected route". See paragraph 16.

That, to my mind, must be the meaning of that phrase. If the judge had thought that it was reasonably foreseeable that visitors would deliberately jump via the claimant's route, then (a) he would have said so, and (b) he would not have bothered to refer to the duty to prevent accidental falls; he would have gone straight to the crucial point in the case.

Thirdly, nonetheless, he found for the claimant by concluding that the reasonable steps to prevent accidental falls would have consisted of a fence, and that that, if done, would have prevented the claimant deliberately jumping down this drop and being injured.

Those last conclusions seem to me to be highly questionable. There could have been a number of steps taken by the defendant so as to perform any duty under the Act to prevent accidental falls, fencing being only one of those measures. Warning notices about a drop, together with any necessary lighting, could have sufficed. Merely because a fence would have been sufficient to perform the duty does not make a fence necessary. Had a notice and lighting been installed, there would have been no basis for assuming that measures such as those would have prevented this injury because, as the judge himself pointed out in paragraph 7, the claimant knew already that there was a drop in this location, and that she would have to jump down it.

In any event, it is very important, in my judgment, that the defendant could not be fixed with liability simply because of a failure to guard against a risk different in kind from that which materialised. May LJ spelt that out clearly in Darby v National Trust at paragraph 25 in the passage already quoted in full by my Lord Pill LJ. I find that a helpful and significant passage. For my part, I regard the risk of an accidental fall as being of a materially different kind from that of sustaining injury when one deliberately chooses to jump down a drop known to exist.

This case is quite different from that of Jolley, where the trial judge had found that an accident of the type which in fact occurred was reasonably foreseeable. See Lord Steyn at page 1087H and 1088E-F.

Here, the judge's findings indicate that injury from someone deliberately choosing this exit route from the premises was not reasonably foreseeable. I therefore do not regard the judge's process of reasoning as being sustainable and, in those circumstances, I too would allow this appeal.