04/03/2021
Occupiers' Liability Act and obvious risks
In this case the Court of Appeal considered the question of whether a hotel owner could defend an occupier’s liability claim on the basis that a guest who fell to his death from an open window, with a very low windowsill, had elected to take an obvious risk.
The Defendant relied on a line of cases including Tomlinson v Congleton BC, Edwards v Sutton BC and Geary v JD Wetherspoon, where the Court had concluded that the hazards of which the Claimants were complaining were so obvious that no remedial steps by the occupiers needed to be taken.
However in the White Lion case the Court of Appeal drew a distinction between cases where there is no duty to warn of an obvious risk inherent in activities carried out on the Defendant’s land, such as hang gliding, or swimming in or diving into pools, and the duty owed to a particular visitor to a hotel who is in a "home from home" situation. The Court felt that hoteliers should be aware that guests could be off guard and might drink alcohol and/or open windows to smoke.
The White Lion case underlines the point that all occupier’s liability cases are fact-specific. The Court found that a risk assessment would have identified that the sash window in the hotel room was defective and could be opened fully. The windowsill was unusually low. The risk of someone falling from the window was foreseeable rather than remote. There would have been no significant loss of social value by fitting restrictors to limit the opening of the window and this could have been done at negligible cost – in contrast with the Edwards case where the Court had concluded that fitting rails to the low wall on an ornamental bridge would be unduly expensive, and would have spoilt the character of the bridge.
Comment
This case may have ramifications for insurers of domestic properties, particularly where (for example) the insured has guests staying with them who are injured as a consequence of hazards which the insurer might argue were obvious. The Court of Appeal did not expand on the concept of “home from home” situations, and the scope of this concept may be tested in future cases.
The White Lion case emphasises that each case needs careful analysis. Whether remedial measures are required to rectify (even) obvious risks to visitors, depends on whether they arise from a defect in the premises, the nature of the risk, their cost and the extent to which they interfere with the use and character of the property.
If you would like to discuss this topic in more detail, please contact Adrian Neale, Associate.
