Summary of Opinion — [2026] EWCA Civ 875

Factual and Procedural Background

The Claimant, an 18‑year‑old soldier required to live in Company B's barracks, fell from a second‑floor landing in the early hours of 24 March 2019 and sustained serious injuries including a significant brain injury. The fall occurred at a landing guarded by a low balustrade which did not prevent the fall. The Claimant sued Company A (the Defendant/Appellant) in negligence and for breach of statutory duty, relying principally on the Occupiers Liability Act 1957. Company A denied liability contending that the Claimant had acted outside his licence to be on the landing and relied on defences including ex turpi causa, volenti and contributory negligence.

After a trial of liability HHJ Simon (Judge Simon) found for the Claimant on 17 January 2025 (the Judgment) with no reduction for contributory negligence. Company A appealed. The appeal was heard before Judge Stuart‑Smith, Judge King and Judge Falk, who delivered an approved judgment dismissing the appeal on all grounds.

Legal Issues Presented

1. Whether the trial judge's evaluative findings of primary fact (that the incident was drunken "playfighting" causing an accidental fall) were wrong and should be set aside on appeal.
2. Whether Company A owed the Claimant a duty under the Occupiers Liability Act 1957 and/or as employer given the Claimant's conduct on the landing (including whether he had become a trespasser).
3. Whether the defence of ex turpi causa barred the Claimant's claim.
4. Whether the balustrade ought to have been regarded as a danger and whether the judge erred by applying hindsight or too high a standard in concluding breach.
5. Whether causation was established such that a higher balustrade would probably have prevented the fall.
6. Whether the judge erred in rejecting contributory negligence and should have apportioned a substantial reduction.

Arguments of the Parties

Appellant's Arguments

• The trial judge's factual findings (that the event was drunken horseplay, that no great force was used, and that the Claimant did not act beyond his licence) were unsupported by the evidence and infected by misapplication of hearsay statements.
• The Claimant's conduct breached Company B rules and involved criminal offences such that he was, at least for the relevant period, outside the occupier's protection under the OLA 1957.
• The judge was wrong to reject ex turpi causa and volenti as bars to liability.
• The judge wrongly found the balustrade to be a danger (impermissible hindsight) and erred on causation, relying on an expert whose concession undermined the causation finding.
• The judge failed properly to assess contributory negligence and should have reduced damages substantially (75%).

Respondent's Arguments

• The judge's factual findings were open on the evidence (including contemporaneous statements and live witness evidence) and entitled to deference on appeal.
• On the judge's findings the Claimant remained a lawful visitor; his conduct did not establish criminal offences sufficient to negate Company A's duty under the OLA 1957.
• The balustrade presented an objectively ascertainable danger; Company A's pre‑accident risk assessment obligations were inadequately discharged.
• Causation was established by the expert evidence accepted by the judge and contributory negligence was not made out on the balance of probabilities.

Table of Precedents Cited

Court's Reasoning and Analysis

The court proceeded by (i) reviewing the trial judge's factual findings and the applicable appellate standards, (ii) applying those findings to the legal issues, and (iii) testing the appellant's submissions against the trial record and expert evidence.

Ground 1 (findings of fact): the court applied established appellate restraint (Fage; Prescott). It concluded the judge had a broad evidential base (contemporaneous statements, witness evidence, hospital notes, post‑accident reports, expert reports) and had made reasoned assessments of witness reliability (finding the Claimant's recollection unreliable in parts, preferring the contemporaneous accounts of Soldier C and Soldier D). The court found no identifiable flaw (gap in logic or failure to take material into account) that would justify overturning the judge's evaluative conclusions that the incident was drunken playfighting leading to an accidental fall.

Ground 2 (duty under OLA 1957): the court analysed whether the Claimant's conduct removed him from visitor status. Relying on the judge's factual findings and authorities cited (including James v White Lion Hotel and the appellate remarks at [2021] EWCA Civ 31), the court rejected a principle that transient misconduct (even if contrary to internal rules) instantaneously converts a lawful resident into a trespasser for the purposes of the Act. The court held that, on the findings, the Claimant's headlock and related conduct were consistent with training and did not amount to offences that would negate the occupier's duty; Company A thus owed the common duty of care under the OLA 1957.

Ground 3 (ex turpi causa): having dismissed Grounds 1 and 2, the court held the factual basis for ex turpi causa was absent. It further relied on McCracken to note that ex turpi cannot operate where criminal conduct is merely one of multiple causes.

Ground 4 (danger posed by balustrade): the court accepted the judge's assessment that the 900 mm balustrade posed an unacceptable risk in the building's use as single living accommodation, based on cumulative evidence: photographs, expert consensus that modern practice is ≈1100 mm, post‑accident assessments acknowledging the hazard, and internal learning documents. The court rejected that the judge used impermissible hindsight and held prior risk assessments were inadequate.

Ground 5 (causation): the court accepted the Claimant's expert (Expert A) whose report and re‑examination supported that a 1.1 m balustrade would probably have prevented the fall of a 1.94 m man in the circumstances found by the judge. The appellant's reliance on a hypothetical strong push was premised on facts materially different from the judge's findings (no great force applied); accordingly causation was established on the judge's factual matrix.

Ground 6 (contributory negligence): the court observed the appellant bore the burden of proof and that the judge had adequate basis for rejecting contributory negligence (the Claimant's partial unreliability, the judge's findings about instigation by Soldier B, the Claimant's headlock as trained de‑escalation, the brevity of the interaction, and the absence of any reason the Claimant should have appreciated the balustrade danger). The court was not persuaded it could confidently reverse the judge's decision and apportion fault.

Holding and Implications

DISMISSED — The Court of Appeal dismissed Company A's appeal on all grounds. The trial judge's factual findings and legal conclusions (liability under the OLA 1957, breach for inadequate risk assessment regarding the balustrade, causation, and rejection of contributory negligence and ex turpi causa) stand.

Implications: The direct effect is that the claimant's judgment in the High Court is upheld and Company A remains liable. The court did not purport to establish a novel precedent beyond applying existing authorities; the decision reinforces appellate deference on evaluative findings and that transient off‑duty misconduct does not automatically negate occupier duty in accommodation contexts.

Panel: Judge Stuart‑Smith (lead), Judge King, Judge Falk. Counsel: Attorney McLaughlin for Appellant; Attorney Barnes and Attorney McCracken for Claimant. Experts and witnesses anonymised in this summary.