Lewis v Six Continents Plc

Under the common duty of care, an occupier must take such care as is reasonable in all the circumstances to keep the particular visitor reasonably safe for the permitted purpose. The duty is fact-specific, although the issue may be framed generally where neither the visitor nor the premises has exceptional features.

Serious consequences and the ease of installing a guard or limiter do not by themselves establish that a risk was reasonably foreseeable. Failure to conduct a risk assessment does not itself establish liability. Safety regulations and guidance that do not apply directly may nevertheless evidence professional consensus. An upper-floor hotel sash window presented no sufficiently obvious or evidenced danger to an adult guest, so no precaution was required.

The claimant suffered severe injuries after falling from an open sash window in a hotel bedroom while attending an employer’s training course. The High Court, with Mr R Ter Haar QC sitting as a deputy judge, dismissed his claim for damages on 4 March 2005.

The claim was principally brought under the Occupiers Liability Act 1957. The claimant also relied on workplace-safety and building regulations as evidence of safe practice, but abandoned arguments that they applied directly or independently founded liability. The appeal concerned whether the judge had asked the correct fact-specific question, whether a risk assessment was required, and whether the window ought reasonably to have been fitted with a limiter or guard.

1. Disposition. Ward LJ delivered the leading judgment. Sedley LJ and Wilson LJ agreed. The appeal was dismissed and a costs order was granted.
2. Nature of the duty. The common duty under section 2 of the Occupiers Liability Act 1957 is owed by a particular occupier to a particular visitor. It requires such care as is reasonable in all the circumstances to ensure that the visitor is reasonably safe in using the premises for the purpose for which he was invited or permitted to be there. The duty is not assessed in the abstract.
3. The question to be answered. Sedley LJ considered that the judge’s reliance on the consequences of imposing precautions on householders and hoteliers did not itself address the real issue. The proper question was whether this hotel owed this visitor a duty to limit the opening of the sash. However, the claimant’s case had ultimately been put in terms of any upper-floor window, so the judge was entitled to address the argument at that level. In any event, the Court considered that the correct analysis would have produced the same result because there was nothing exceptional about the visitor, the premises or the purpose of use.
4. Foreseeability and precaution. Failure to carry out a risk assessment would not itself establish liability. Liability still required proof that the risk of falling from the window was reasonably foreseeable at the time. The window presented no obvious danger to an adult, there had been no previous similar accident, and there was no evidence that accidental falls from open upper-floor hotel windows were a known hazard. The serious potential consequences and the ease of fitting a limiter or guard were insufficient by themselves to make the precaution reasonable.
5. Regulations and guidance. The workplace and building regulations did not directly apply on the case as presented and breach of them could not independently found the claim. Nevertheless, the regulations and guidance were capable of representing professional consensus and were material to the assessment of reasonable care. The recommended 800-millimetre window height did not establish causation, and the evidence did not show that limiting the window was reasonably required.

• Court of Appeal (Civil Division) dismissed the appeal on 12 December 2005 and granted a costs order.
• High Court, Queen’s Bench Division, with Mr R Ter Haar QC sitting as deputy judge, dismissed the claimant’s damages claim on 4 March 2005. Permission to appeal was granted on the issue of liability.