Clare v Perry (t/a Widemouth Manor Hotel)

Factual and Procedural Background

This appeal concerns a personal injury claim brought by the Plaintiff against the Defendant, the occupier of a hotel premises. The Plaintiff was injured on the premises at about 1:00 am on 29th March 1998 after deliberately jumping from a Devon stone boundary wall adjoining the hotel car park onto the public road below. The Plaintiff suffered substantial injuries and was found contributorily negligent to the extent of 50%. The trial before His Honour Judge Overend at the Crown Court addressed liability only, with damages to be assessed subsequently.

The Plaintiff, her partner, and his daughter had been at the hotel on the evening of 28th March 1998. After missing a courtesy bus, they decided to leave the hotel by crossing the road outside to view nearby coastal lights. The area where the Plaintiff jumped had a sheer drop of about 6 to 7 feet, with no fencing or lighting, although there was a designated and safer access to the road nearby. The Plaintiff was aware of the edge of the wall but misjudged the height and depth, believing she could safely jump because her partner had done so shortly before, despite the partner’s physical disabilities.

The Defendant was found liable for breach of duty due to failure to fence the edge of the wall, but the Plaintiff was held 50% contributorily negligent for taking a deliberate risk by jumping without seeing the road below. The Defendant appealed this liability finding.

Legal Issues Presented

1. Whether the Defendant, as occupier, breached the common duty of care under the Occupier's Liability Act 1957 by failing to fence off the edge of the wall at the point where the Plaintiff jumped.
2. Whether the risk of injury from a deliberate jump, as opposed to an accidental fall, was reasonably foreseeable such that the Defendant owed a duty to guard against it.
3. The appropriate standard of care required of an occupier in circumstances where a visitor deliberately chooses a hazardous route contrary to designated access.
4. The extent of contributory negligence attributable to the Plaintiff.

Arguments of the Parties

Defendant's Arguments

• The absence of fencing did not constitute a breach of duty as the Plaintiff left the premises by an unexpected and undesignated route when a proper exit was available nearby.
• The duty to prevent an accidental fall does not extend to preventing a deliberate jump; occupiers are not required to guard against all foolish conduct.
• Reliance on Darby v National Trust to argue that there was no duty to prevent the deliberate act of jumping, especially absent evidence of a practice of such conduct.
• The Plaintiff assumed the risk of injury by voluntarily engaging in the dangerous act without full appreciation of the risk.
• The contributory negligence finding should not be disturbed or increased on appeal.

Plaintiff's Arguments

• The judge was entitled to find a breach of duty due to the absence of fencing, supported by common sense and subsequent erection of fencing.
• The duty of care under the Occupier’s Liability Act 1957 includes protecting against accidents such as falls, which in the circumstances should extend to the Plaintiff’s deliberate jump.
• Reliance on the statement by Lord Steyn in Jolley v Sutton LBC that foreseeability of accidents is highly fact sensitive.
• The risk arising from the change of level should not be distinguished between accidental falls and deliberate jumps for the purposes of duty.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by acknowledging the uncontested facts and the trial judge’s findings, particularly that the Plaintiff deliberately chose to leave the premises by an unexpected route and jumped from a wall without being able to see the ground below. The judge found a breach of duty for failure to fence the wall edge, which was considered a reasonable precaution to prevent accidental falls.

However, the appellate court carefully distinguished between the risk of an accidental fall and the risk of injury resulting from a deliberate jump. It emphasized that the duty of care under the Occupier's Liability Act 1957 requires reasonable steps to ensure visitor safety but does not extend to guarding against all foolish or unexpected conduct, especially deliberate acts contrary to designated access routes.

Reliance was placed on Darby v National Trust and Tomlinson v Congleton Borough Council, which establish that occupiers are not liable for risks inherent in voluntary activities or those of a different kind than those reasonably foreseeable. The court found no evidence that the Defendant should have foreseen that visitors would deliberately jump from the wall at the point in question.

The court also noted that the Plaintiff was aware of the edge and voluntarily took a substantial risk, justifying the 50% contributory negligence finding. The judge’s conclusions that fencing would have prevented the injury were questioned, as fencing is a measure to prevent accidental falls, not deliberate jumps.

Accordingly, the court concluded that the Defendant did not breach the duty of care in relation to the actual injury sustained by the Plaintiff, as the risk of injury from a deliberate jump was not reasonably foreseeable and distinct from the risk of accidental falls.

Holding and Implications

The appeal is allowed.

The court overturned the trial judge’s finding of liability against the Defendant, ruling that the Defendant did not breach the common duty of care under the Occupier's Liability Act 1957 with respect to the Plaintiff’s injury caused by a deliberate jump from the wall. The Plaintiff’s conduct was found to be a substantial cause of the injury, and the risk of such deliberate conduct was not reasonably foreseeable by the Defendant.

This decision results in the Plaintiff not receiving compensation for the injury. No new legal precedent was established; rather, the court applied established principles distinguishing between risks that occupiers must guard against and those arising from voluntary, deliberate acts by visitors contrary to expected conduct.