ON APPEAL FROM THE CARDIFF COUNTY COURT
HIS HONOUR JUDGE SEYS LLEWELLYN QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE HAMBLEN
LORD JUSTICE MOYLAN
| Mr Philip James Clay
|- and -
|TUI UK Limited
Mr Ronald Walker QC (instructed by Miles Fanning Legal) for the Respondent
Hearing date : 17 April 2018
Crown Copyright ©
Lord Justice Hamblen:
Factual and Procedural Background
" .The standard here in question does not recognise expressly or impliedly that compliance with it may be insufficient. There is no other evidence that the construction or weight bearing capacity of this cornice failed to meet local standards. Just as there was no evidence of prior incident similar to that which befell the Claimant, whether at this hotel or at another in the Princess group or in the Canary Islands or Spain more widely, so also there was no evidence of a prevailing practice to construct a cornice with reinforced concrete such as would bear the weight of a person, or even illustration of it at other hotels or buildings "
This finding is not challenged on appeal.
"121. The case for the hotel is that there was no evidence of this being attempted in this large hotel of over 500 rooms, over 22 years of operation, or in any other hotel in the group, and that it was such a foolhardy act in the eyes of any reasonable hotelier that it was beyond sensible contemplation, or beyond contemplation as a risk which required warning: 'the hotel could not reasonably have foreseen that anyone would attempt to walk on those ledges'.
122. In my judgment the "sooner or later" argument would be easier to present in like circumstances in the case of a claim in negligence at common law in England and Wales. First, I accept above that it was not unusual in the Canary Islands to find decorative features to balconies such as the present. Second, I have no evidence other than statement of his opinion by Mr Mesas (without supporting evidence) that failure to give such warning in relation to the ledge or cornice was inconsistent with local practice or local recognition of that which was required. Third, in the present case, the expert evidence of Mr Montoya runs against recognition of an obligation to warn in respect of the cornice, and he was easily the more impressive of the two expert witnesses whom I heard. Fourth, and contrary to my extreme sympathy for the Claimant, I find it difficult to accept that those responsible at a hotel in the Canary Islands should have foreseen that a guest would climb onto the outer ledge. For these reasons above, I find myself unable to conclude that under local standards that warning in respect of the fragility of the cornice was reasonably demanded under Article 18 of the Ordinance."
This finding is also not challenged on appeal.
"The Defence pleads the exception to liability under the Regulations by Regulation 15(2)(c), that the travel company shall not be liable if any failure to perform the contract is due to unusual and unforeseeable circumstances beyond the control of the travel company, or an event which the travel company or the hotel even with all due care could not foresee or forestall. At trial, in skeleton argument and in submissions, this is put in more general terms that even if breach of contract or negligence were proved, the action the Claimant elected to take should be regarded as a novus actus interveniens.
"(iii) Was the act of the Claimant, in climbing to the other side of the balustrade and preparing to jump or step across the gap to his own balcony, so unexpected and/or foolhardy as to be a novus actus interveniens?"
"106. Causation. There is no doubt the door clicked shut so as to lock out the Claimant and his wife and parents. On my findings above, it is possible to categorise this as a defect and thus to constitute a departure from the standard that premises and services must be kept at the standards required to obtain authorisation for 'touristic' activity (albeit so might a failure to replace furniture which had become shabby and threadbare). It requires independent consideration whether any defect in the locking mechanism can be said to have caused the accident itself. The Defendant submits that it was not, and that the accident injury was the product solely of the Claimant's own actions.
107. On the one hand, the Claimant and his parents and wife were impressively ordinary and considerate people, and of apparently careful background.
108. The Claimant himself was at the time of the accident employed as a security officer/fire office at an oil refinery in Milford Haven, he had prior to the accident had frequent health and safety training, and had been safety conscious on arrival at the hotel. Because it was something of a maze, he advised his children that if ever there were a fire they would have to make their way down from the balcony rather than risk trying to find their way through the hotel itself. The Claimant's wife was a nurse, who told me that she dealt with life and death, and would never have contemplated letting her husband attempt this if she had thought that he might fall.
109. His father was prior to retirement a truck operator instructor and also a health and safety representative for Esso. His first act on arriving at room 358 was to read the safety notice on the back of the hotel door and look for an escape route in case of an emergency, saying "this has been instilled in me over the years with my health and safety training" (witness statement paragraph 19 Bundle 2 page 528). The Claimant's mother was a retired nurse.
110. As individuals, they were decent people, with children/grandchildren, not single young men out on a spree. There was no relevant inebriation. The distance itself at the narrowest point between the exterior cornices of the respective balconies was 2 foot 7 inches and so if this had been at ground level or only a few feet above the ground it would have been a simple step, easily in the compass of someone 6 feet 2 as was the Claimant.
111. However any defect here in question, namely a readiness of the lock to snap closed in the locked position, was not a direct danger to those on the balcony, (unlike fragility of the ledge if this had been in breach of local standard). It was disquieting to be locked out and have no-one heed cries for attention. But there was no fire. There was no emergency. The minimum temperature that night was 19 degrees centigrade. The Claimant did not know and could not know that it was safe to stand on the ledge. The risk of injury, if it was not safe to stand on the ledge was obvious, and at two storeys up, life threatening. Unsurprisingly, the Claimant agreed that he would not have done this if he were on the top of a skyscraper.
112. Once the Claimant stepped on the ledge outside the balustrade, its fragility for his weight gave way under him like a trap door so as to plummet him to serious injury. It was this which caused the accident fall and injury. Whilst it may be that if there was breach of standard in relation to the weight bearing capacity of this ledge, this would not bar recovery, I consider that in relation to any defect in the lock of the sliding door, it was a strikingly new and independent act on the part of the Claimant. Even allowing for the open textured and pragmatic tests of causation in the law of England and Wales, I am driven to the conclusion that this was so new and independent an act, in circumstances which presented no emergency or threat, that it could not be said the locking out was a sufficiently proximate cause of the accident, as opposed to being part of the history and background to it. Alternatively stated, any defect in the lock having the potential to lock spontaneously did not render the premises unsafe by local standards.
113. It seems to me that the Claimant can legitimately argue that fragility of the ledge, if in breach of standards, caused his very serious injury, but that breach of standards in a lock which permitted the door to be inadvertently locked closed was itself not a sufficiently proximate cause of his injury."
The Grounds of Appeal
(1) The judge misdirected himself as to the appropriate test of remoteness.
(2) The judge failed to consider relevant evidence and/or the judge's conclusion that the defect in the locking mechanism was not causative of the accident was wrong.
(1) The starting point is that a defendant is liable for a consequence of a kind which is reasonably foreseeable, unless the court finds that the damage was caused by a novus actus interveniens or unreasonable conduct on the part of the claimant, even if it was reasonably foreseeable: Simmons v British Steel plc  UKHL 20,  ICR 585 at .
(2) The judge should have started by making an assessment as to whether it was reasonably foreseeable that the appellant would try to escape from the confines of the balcony, rather than whether it was reasonably foreseeable that he would attempt to do so by crossing between the balconies: Hicks v Young  EWHC 1144(QB) per Edis J at .
(3) As set out by Morris LJ in Sayers v Harlow UDC  1 WLR 623 at p630, it is: " the most natural and reasonable action on the part of someone who finds herself undesignedly confined is to seek the means of escape." Had the judge applied the proper test, he would or should have found that it was reasonably foreseeable that the appellant (or a member of the trapped group) would seek to escape.
(4) When a claimant is injured seeking to escape from being locked up by the defendant's breach of duty, resulting in inconvenience rather than imminent danger, the injury will not necessarily be too remote: see Sayers. It is submitted that this case establishes that the correct approach is to weigh the degree of inconvenience to which the claimant had been subjected with the risks involved in trying to escape. The judge failed to apply this test or undertake the required balancing exercise. He also did not address whether the conduct was sufficiently unreasonable to amount to a novus actus interveniens.
(5) When addressing the level of the risk faced by the appellant, it was insufficient simply to describe it as "obvious" and "life threatening" . The judge needed to return to the evidence on the risk that the appellant and his family considered he was taking when stepping over the balustrade.
(6) The judge had made findings of fact that the appellant and his family were all careful people and were not inebriated. The decision to cross between the balconies was not a rash one, but was carefully considered. The risk of injury was clearly not obvious to the appellant or his family at the time. The judge wrongly equated the appellant's lack of knowledge that the ledge would take his weight with an assessment that the appellant took an obvious risk .
(7) The appellant's mistake was to believe that the ledge would take his weight; this was not one which was so unreasonable that it should break the chain of causation, particularly when balanced against those factors set out above going to the inconvenience faced by the appellant and his family. Rather, his mistake was one which is amenable to be addressed as an issue of contributory fault.
Ground (1) Whether the judge misdirected himself as to the appropriate test of remoteness.
(1) The extent to which the conduct was reasonably foreseeable in general, the more foreseeable it is, the less likely it is to be a novus actus interveniens.
(2) The degree of unreasonableness of the conduct in general, the more unreasonable the conduct, the more likely it is to be a novus actus interveniens and a number of cases have stressed the need for a high degree of unreasonableness.
(3) The extent to which it was voluntary and independent conduct in general, the more deliberate the act, the more informed it is and the greater the free choice involved, the more likely it is to be a novus actus interveniens.
(1) It was not submitted before the judge that this was an issue which the judge needed to address when considering causation or foreseeability, nor was it submitted that the relevant kind of consequence was any personal injury, as opposed to injury resulting from attempting to walk on the balcony ledges.
(2) The appellant cannot point to any finding made by the judge as to reasonable foreseeability on this wider basis and it is not for this court to second guess what findings might have been made or to make its own findings. Foreseeability was an issue addressed by evidence and had the case been put on this wider basis it is likely that it would have been the subject of evidence. As such, it is difficult to see how it can now be open to the appellant to put the case in this different and wider way.
(3) The issue of reasonable foreseeability was addressed by the judge when considering whether there was a breach of duty by failing to give an appropriate warning. In this connection the judge accepted the respondent's argument that attempting to walk on the ledges was "such a foolhardy act in the eyes of any reasonable hotelier that it was beyond sensible contemplation, or beyond contemplation as a risk which required warning", finding that: "I find it difficult to accept that those responsible at a hotel in the Canary Islands should have foreseen that a guest would climb onto the outer ledge".
" to balance the risk taken against the consequences of the breach of duty; in other words, to weigh the degree of inconvenience to which the plaintiff had been subjected with the risks that she was taking in order to try and do something about it."
" .I quite agree that, if the negligence of a railway company puts a passenger in a situation of alternative danger, that is to say, if he will be in danger by remaining still, and in danger if he attempts to escape, then, if he attempts to escape, any injury that he may sustain in so doing is a consequence of the company's negligence; but if he is only suffering some inconvenience, and, to avoid that, he voluntarily runs into danger, and injury ensues, that cannot be said to be the result of the company's negligence. It is hardly necessary to say, that though I use the words 'danger' and 'inconvenience,' yet, if the inconvenience is very great and the danger run in avoiding it very slight, it may not be unreasonable to incur that danger."
Ground (2) - The judge failed to consider relevant evidence and his conclusion that the defect in the locking mechanism was not causative of the accident was wrong.
(1) The appellant's conduct, which was the only conduct which was said to be relevant to foresight at trial, was not reasonably foreseeable.
(2) The conduct was unreasonable to a high degree given that the appellant and his family were faced with inconvenience rather than any danger, emergency or threat and the obvious risk of life threatening injury involved in the course of action which the appellant chose to take.
(3) The conduct was voluntary. It was both considered and deliberate. There was no necessity for the appellant to take any risk, but he nevertheless chose to expose himself to real danger and to an obvious risk of death or serious personal injury.
In these circumstances, a finding that there was a novus actus interveniens is clearly justifiable.
Lord Justice Moylan:
"(i) Was the locking mechanism of the sliding door in room 357 defective in breach of local standards?
(ii) Did the ledge on which the Claimant stood and which gave way beneath him form part of the balcony, so as to be in breach of local standards?
(iii) Was the act of the Claimant, in climbing to the other side of the balustrade and preparing to jump or step across the gap to his own room, so unexpected or foolhardy as to be a novus actus interveniens?
(iv) If otherwise the Claimant would be entitled to succeed, was there contributory negligence and if so what deduction should be made?"
"It seems to me that the Claimant can legitimately argue that fragility of the ledge, if in breach of standards, caused his serious injury, but that breach of standards in a lock which permitted the door to be inadvertently locked closed was itself not a sufficiently proximate cause of his injury".
Grounds of Appeal
(1) The judge was wrong to find that the respondent's breach of duty was not a cause of the accident. The judge misdirected himself as to the appropriate test to apply and/or made an assessment as to the impact of the appellant's conduct on the chain of causation which was wrong;
(2) The judge's determination in respect of the appellant's contributory negligence was wrong.
The appellant's submissions are summarised by Hamblen LJ at  above.
Discussion and Determination
"The quality of premises and services. Accommodation establishments must ensure that their premises and services are kept, at all times and as a minimum, at the standards required to obtain any authorisation to carry out their touristic activity."
The judge then said,
"During the trial it was for practical purposes assumed, as I understand it, that if there were a defect in the lock there would be a breach of this standard. Since the evidence of the Defendant is that Regulations would have applied in respect of balcony doors and the balcony construction in the late 1980s when it was constructed, that there would have been approval of the plans and visit by building inspectors to check that there was compliance with the Building Regulations, and that only once those checks had been completed and everything approved and agreed that the "Apertura" or operating licence be issued, this appears to be the case".
The words, "this appears to be the case", mean, it seems to me, that the presence of the defect constituted a breach of the local standard and so confirmed the assumption which had been made during the trial.
"There is no doubt the door clicked shut so as to lock out the Claimant and his wife and parents. On my findings above, it is possible to categorise this as a defect and thus to constitute a departure from the" required standard.
There was some debate during the hearing of the appeal as to whether these words meant that the judge had not found a breach because of the use of the word "possible". That is clearly one interpretation. However, it is not consistent with what the judge had said in the previous paragraph nor his conclusion as to how the door came to be locked shut.
"(1) The starting point is that a defender is not liable for a consequence of a kind which is not reasonably foreseeable: McKew v Holland & Hannen & Cubitts (Scotland) Ltd 1970 SC (HL) 20, 25 per Lord Reid; Bourhill v Young  AC 92, 101 per Lord Russell of Killowen; Allan v Barclay 2 M 873, 874 per Lord Kinloch
if the pursuer's injury is of a kind that was foreseeable, the defender is liable, even if the damage is greater in extent than was foreseeable or it was caused in a way that could not have been foreseen: Hughes v Lord Advocate  AC 837, 847."
In Corr v IBC Vehicles Ltd, Lord Bingham said at :
"The Court of Appeal majority were right to uphold the claimant's submission that it was not incumbent on her to show that suicide itself was foreseeable. But, as Lord Pearce observed in Hughes v Lord Advocate  AC 837, 857, "to demand too great precision in the test of foreseeability would be unfair to the pursuer since the facets of misadventure are innumerable". That was factually a very different case from the present, but the principle that a tortfeasor who reasonably foresees the occurrence of some damage need not foresee the precise form which the damage may take in my view applies."
"Can it be said that the plaintiff's conduct was so unreasonable as to eclipse the defendants' wrongdoing?"
He then quoted from McKew v Holland before saying that "the degree of unreasonable conduct which is required is, on Lord Reid's view, very, very high" (p. 1019C). Lord Reid had used the expression "utterly unreasonable" which Waller LJ adopted when considering the plaintiff's conduct (at p. 1019E).
Lord Justice Kitchin: