England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH
(MR R TER HAAR QC)

		Royal Courts of Justice Strand London, WC2
		12th December 2005

LORD JUSTICE WARD:

1. The appellant, Mr Christian Lewis, was 22 years old at the time when he and a work colleague, Mr Shaun Bamford, were sent on a training course by their employer and were, for that purpose, staying at the Broadway Hotel in Letchworth of which the respondent is now the owner and occupier. Mr Lewis and Mr Bamford shared a twin bedded room on the second floor, and at about 1 o'clock in the early hours of 10th May 2000, Mr Lewis fell out of a window in that bedroom and suffered severe head injuries from which, sadly, he will never fully recover. On 4th March 2005, Mr Ter Haar QC sitting as a deputy judge of the High Court dismissed his claim for damages which he would have assessed in excess of £1 million, had liability been established. He gave permission for this appeal limited to the issue of liability saying that his decision seemed to be "a matter of law turning on the facts I have found."
2. What are those facts? The hotel is a building of some age. Room 201, occupied by the appellant and his colleague, was, as I have said, on the second floor of the hotel approximately 35 feet above the level of the street outside. The room itself measures over four metres by about three and a half, with a bay window looking out over the front of the hotel, the bay being just over two and a half metres wide. There are three sash windows in this bay. The height from the floor to the base of the opening of the window was 75-centimetres which translates more understandably to about 29 and a half inches.
3. The lower sash of the right hand window through which Mr Lewis actually fell, when fully opened upwards as far as possible leaves an aperture, said by the loss adjuster who examined the property, to be approximately 72-centimetres (28 and a half inches) by 62-centimetres (24 and a half inches). There was no block to limit the window being fully opened, there was no guard rail across the aperture. There was very little space between the bed on which the claimant was sleeping and the window; there was a holdall of some sort near the bay window, but nothing eventually turned on that. It was a bedroom with a bathroom and lavatory en-suite at the other end of the room.
4. The claimant and his workmate arrived on the Sunday and they attended the course on the Monday. That evening, they went for dinner at about 7 o'clock, having some drink with their meal, they retired to the hotel bar where they had more to drink and then they went out into the town, if not out on the town, and inevitably had more to drink in doing so. Mr Bamford recollects that he had about five pints of beer, probably more, that night. Because he was not in the appellant's immediate vicinity he was unable to say how much the appellant had actually had to drink, but the evidence set out in his witness statement was to this effect:

"... I cannot say how much Christian had to drink. I certainly know that he was not particularly loud and not slurring his words or anything like that. To me, he showed no signs of being drunk."

5. The deputy judge found, and there is no challenge to this finding, paragraph 23:

"I should say that I do not find on the evidence that the Claimant was incapably drunk. Undoubtedly before going to bed he had had several pints of beer, but he was an experienced drinker and it seems to me that the amount he had had to drink whilst enough to make him well over the drink/driving limit was not enough to mark him out as being particularly drunk. In coming to that conclusion I rely upon Mr Bamford's evidence set out at paragraph 15 above."

This recites the passage I have already quoted.

6. It seems that the appellant retired to bed at about 10 o'clock, Mr Bamford probably followed at about 11.30pm. When he arrived in the bedroom, the appellant was in bed and asleep. It was at about 1 o'clock that Mr Bamford was woken by a loud bang. He could see the right hand window was open, he looked out and saw the unfortunate appellant lying on the ground below. He had fractured his skull and suffered other injuries; he has no recollection at all of how he came to fall out of the window.
7. The judge made findings as to how that happened in paragraph 19 onwards:

"How did the Claimant come to fall from the window? That is impossible to answer definitively but I think some possibilities can be excluded. There is nothing to suggest that the Claimant tried to take his own life - there is no evidence to hint that he was depressed or anything like that.

20. After the incident a representative of the local council attended. She saw a holdall placed roughly in front of the centre of the three sash windows - see page 199 of the bundle. A suggestion was made that the Claimant might have tripped over the holdall and in some way then have fallen out of the window. That seems to me improbable given the position of the holdall and the small aperture through which he fell.

21. Another possibility canvassed was that he might have tripped over the counterpane on his bed but again I think this is unlikely.

22. It seems to me Mr West QC, who appeared for the Defendant, is right in his submission that the most likely explanation is that the Claimant leant out of the window to get some fresh air, to see something going on outside or even possibly to be sick."

8. The claim was brought under the Occupiers Liability Act 1957 which provides in section 2 as follows:

"1. An occupier of premises owes the same duty, the common duty of care, to all his visitors except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.

2. The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there."

The claimant also appears to have relied on the Health and Safety Commission's Workplace, Health, Safety and Welfare Regulations 1992 and the Building Regulations 1991 and the guidance thereunder to bring his claim. Regulation 15.2 of the Workplace, Health, Safety and Welfare Regulations provides:

"No window, skylight or ventilator shall be in a position, when open, which is likely to expose any person in the workplace to a risk to his health or safety."

The approved Code of Practice under those regulations also provides in paragraph 154 that:

"Open windows, skylights or ventilators should not project into an area where persons are likely to collide with them. The bottom edge of an opening window should normally be at least 800-millimetres above floor level, unless there is a barrier to stop a fall."

An argument that Mr Lewis was in his workplace at the time, because he was sent to the hotel on business, was abandoned during the course of the trial.

9. The Building Regulations 1991 include the requirement N3:

"... windows which can be opened by people in or about the building shall be so constructed or equipped that they may be opened, closed or adjusted safely."

The Guidance provides:

"... where there is a danger of an operator or other person falling through a window above ground floor level, suitable opening limiters should be fitted. All guardings should be provided."

10. Counsel then appearing for the claimant abandoned any suggestion that either set of regulations applied directly, or that breach of any of the regulations could in itself found a cause of action, but he relied on them as demonstrating a good or safe practice. The judge noted in paragraph 34 of his judgment:

"As I have said, Mr Isherwood abandoned any suggestion that either set of regulations applied directly or that breach of any of the regulations could in itself found a cause of action."

It seems to me that by observing that the material did not apply directly, the judge was of the view, and remained mindful of the fact, that the regulations and the guidance did represent a consensus of professional opinion and, as such, was material to bear in mind.

11. However, his conclusion was directed to the way the case was eventually presented to him. He said in paragraph 35 that "primarily" and that is the word I emphasise:

"... the present claim is brought under the provisions of the Occupiers Liability Act 1957."

He then reached these conclusions in paragraph 36 onwards:

"As I understand that section the duty is to be judged by reference to the particular visitor to whom the duty is said to be owed. Accordingly it would be nothing to the point in this case if it could be shown that insufficient care was taken towards a child who might at some other time occupy the room. The Defendant's liability is to be judged by asking whether the Defendant failed to take reasonable care by see that the Claimant was reasonably safe."

I interpose by saying that no challenge has been made to that latter statement of principle. The question is indeed whether reasonable care had been taken to see that this visitor was reasonably safe in all the circumstances of the case.

12. The judge then continued:

"Mr Isherwood firstly points to the dimension of 750 mm to which I have drawn attention. He says this is less than 800 mm as would be required by good practice. There seems to me to be two insuperable difficulties in that way of putting the case. Firstly it does not follow that because new buildings or workplaces may be required to comply with the 800 mm recommendation the Defendant was required so to comply in the bedrooms in this hotel. Secondly, there is no evidence to suggest that the difference of 50 mm was crucial or, to put it differently, that if the base of the opening had been 50 mm higher this accident would not have happened."

I interpose that Mr Braithwaite did not seek to challenge that conclusion, and if I may say so rightly so because it seems to me inconceivable that two inches difference in height would have had any causative effect.

13. In paragraph 38 the judge said this, and herein lies the nub of the appeal:

"Accordingly Mr Isherwood was driven to arguing in effect that any window opening above ground floor level out of which someone could fall should have bars or limiters. In support of that contention he points to the ease with which an accident could be avoided and the devastating consequences likely to follow upon an accident if someone did fall out.

"39. I am unable to accept that argument. The duty is to take such care as is 'reasonable' in all the circumstances to see that the visitor is 'reasonably safe'. The consequences of Mr Isherwood's argument would be that virtually every window in every building in the land would have to be adapted so that no one could fall out. It would have to be made impossible for anybody to lean out of a window to get a better view of what is going on outside or to call a friend in the street. I do not regard that to be a reasonable precaution to be imposed on householders or hoteliers."

In paragraph 49, he said that those for reasons he rejected the claim.

14. Mr Braithwaite QC now appears for the appellant, and I am grateful to him for his submissions. He submits that it was the duty of this occupier at that time, namely a large PLC of brewers and hotel owners, to have carried out a risk assessment to consider the dangers presented by windows on the second floor open to this extent, in the light of the range of adult visitors, sober or inebriated, who might use the room. It seems to me that there are two difficulties confronting that argument: the first is that it is not the case put in the court below, it was not pleaded in the particulars of claim and, furthermore, when the manageress of the hotel was giving evidence under cross-examination and was being challenged as to risk assessments made, for example, of the strength of the window panes, counsel for the defendant, Mr West, voiced his objection.
15. In my judgment, the more serious difficulty is this: breach of that duty, assuming that there was such a duty, would not establish liability. If the risk assessment had recommended the fixing of limiters or guardrails and the risk had been ignored, then of course the claimant would be well on the way to success. But failure to carry out a risk assessment helps not a bit to establish the key requirement, namely that the risk of falling out of the window was reasonably foreseeable at the time and not after the event. It may well have opened the key to further exploration, had the answers in cross-examination established that there was some risk assessment, but that would have been a forensic point and not one which goes to the establishing of a liability.
16. Next Mr Braithwaite argues that the deputy judge's conclusions were not sufficiently reasoned for the parties or this court to understand why the claim failed. Again, he faces difficulties in that this was not a ground upon which permission to appeal was sought. Had it been and had counsel protested that paragraphs 38 and 39 were insufficient to let anyone really understand why the judge had decided as he did, then the judge would have had some chance to have cured the defect. Secondly, it is not a ground of appeal as those grounds have been framed and this court did not have the opportunity to send the matter back, if they thought that that was appropriate.
17. But in any event, in my judgment crucially, this is not a lack of reasons challenge which is well based. Although the conclusions may have been succinctly expressed, the judge sufficiently explains that he did not, as he says, accept the arguments that had been presented to him which he summarised. He did not regard adaptation of the window to be a reasonable precaution to be imposed on householders or hoteliers. So whether or not he is right or wrong, at least one can understand, in my judgment, why he concluded as he did. That leads to the main thrust of the argument, as I understand it. Mr Braithwaite submits that the judge's approach was flawed in that he did not ask the right question. The right question, he submits, should have been, "what should this hotel (the emphasis on this) have done about this window, bearing in mind the purposes for which this case was using the premises."
18. In other words, he submits, the proper approach is to look at the individual circumstances of the case. The error, he says, was shown by the generality of the judge's approach, looking at householders in general and at virtually every window in every building in the land. I see the force of that argument. I understand the point that this may be a floodgate argument which seldom gets anywhere, and it may well be that the judge could have expressed himself more felicitously.
19. But that said, first there was nothing exceptional about this visitor or the purpose for which he was using the room, which modified the ordinary risks of occupation. There is no challenge to the judge's finding about the claimant's state of sobriety when he retired to his room or even more relevant when he fell out of the window a few hours later. Ultimately, the question is, as Mr Braithwaite put it, was the window unsafe for anyone? Secondly, if the judge had correctly analysed the way in which the case was being presented to him by counsel on the claimant's behalf, namely and I repeat the opening sentence of paragraph 38 of his judgment:

"Accordingly Mr Isherwood was driven to arguing in effect that any [with the emphasis on any] window opening above ground floor level out of which someone could fall should have bars or limiters,"

then he was entitled to answer that question and to deal with house-owners and windows in general.

20. Mr West who, as I have said, appeared for the defendants in the court below tells us that paragraph 38 is a correct summary of the way the case was presented to the judge. Counsel had had to abandon, slowly it may be, but inevitably, each and every one of the various points he took on the application of the regulations and the guidance until he was eventually driven to argue on strictly, and strict and pure, Occupiers Liability Act principles. Secondly, counsel for the appellant did, as a result, have to submit that the same principles would apply to a guest occupying a spare room of a private house, as well as to be a guest of the hotel.
21. In those circumstances, it seems to me that one cannot be critical of the judge's dealing with the case as he did and nor perhaps should one be critical of counsel, having been driven to advance the argument he did, all else having been shot away from him or even shot away by him. Even if the judge was wrong in that analysis and, for my part, I am quite satisfied that if the right question had been posed to him, he would inevitably have reached the same conclusion. This window did not present any obvious danger to an adult. One only has to look at the photographs that have been presented to us to be surprised almost that anyone would fall out of it.
22. No such accident had ever occurred previously and it was, in my judgment, in those circumstances not reasonably foreseeable that an adult would so lean out of the window to get fresh air, to see something going on outside or even to be sick or to do anything that would lead to a conclusion that the occupier ought reasonably to have limited the height to which the window could be opened.
23. The judge clearly thought that it was unreasonable to require those precautions to be taken. In my judgment, he was right to do so. If he erred at all, his error was perhaps in giving permission to appeal. I regard this as a hopeless appeal, despite the valid efforts by Mr Braithwaite to present it otherwise. I would dismiss the appeal.
24. LORD JUSTICE SEDLEY: Once the various sources of statutory duty relied on at trial by the claimant's counsel had been rightly discarded by Mr Braithwaite, what was left was the common duty of care. The common duty of care is owed not in the abstract but by a particular occupier, here a medium sized hotel, to a particular visitor, here a young man with nothing to distinguish him from the hotel's other adult guests.
25. The sole reason given by the judge, however, for dismissing the claim was the argument from the consequences of the claimant's case, if it were to succeed, not only to hoteliers but to householders generally (see paragraph 39 of the judgment). This, I am prepared to accept, although we have heard full argument on one side only, does not address the real question. The real question, as I have indicated, was whether the duty owed by this defendant to this claimant ran to an obligation to limit the rise of the lower sash.
26. The reason why the judge did not address this question was that counsel for the claimant had chosen not to pose it. Instead, as Mr West was able to confirm to us, he had posed the unnecessarily large question reflected in paragraph 38, which my Lord has quoted.
27. This would be enough to dispose of this appeal, but since to many people it would be unattractively technical to do so, it is worth asking what the correct answer would have been had the judge been asked to decide the correct question.
28. The correct question would arguably have been whether a hotel sash window above ground floor level ought at least in principle to be prevented from opening wide enough for a guest to fall out. It could probably be posed at this level of generality, notwithstanding the specificity of the duty, because there was nothing to distinguish the claimant from the run of guests or the premises from the run of hotels. This was of course not the case once private houses were assimilated to the argument: hence the fallacy in the eventual question and answer in the judgment.
29. The answer to the question, in my judgment as in my Lord's, is that there was no evidence, and certainly no danger so obvious as not to require evidence, to support an affirmative answer. It was not suggested, for example, that accidental falls from open upper floor windows were a known hazard faced by hotels. While no doubt blocked sashes would not have allowed the claimant to fall out as he did, it does not follow without more that it was negligent not to block them. But there is no more.
30. Despite, therefore, Mr Braithwaite's elegant presentation of what is now the claimant's case, I too would dismiss this appeal.
31. LORD JUSTICE WILSON: I agree with both judgments.

Order: Appeal dismissed. Costs order granted.