Clare v Perry (t/a Widemouth Manor Hotel)

An occupier must take such care as is reasonable in the circumstances to keep visitors reasonably safe. The required precautions depend on the conduct reasonably to be expected of visitors. An occupier does not ordinarily have to protect an adult against foolhardy and unexpected conduct, particularly where a safe and obvious means of access or egress is nearby.

Liability cannot be founded merely on a precaution which would have prevented the injury if the precaution addressed a risk materially different from the risk which materialised. A foreseeable risk of an accidental fall may therefore differ from the risk created when an adult deliberately jumps from a known drop without being able to see the ground below.

The claimant suffered serious injuries after deliberately jumping from a wall while leaving the defendant's hotel at night. She knew that there was a drop but could not see the road below. A safe entrance and exit lay a short distance away.

The county court held that the defendant had breached the common duty of care under the Occupier's Liability Act 1957 by failing to erect a fence. It found the claimant 50 per cent contributorily negligent and ordered damages to be assessed.

The defendant appealed. The central issues were whether reasonable care required the wall to be fenced and whether liability could arise from precautions addressing an accidental fall when the claimant had deliberately jumped.

1. Appeal allowed. The defendant had not fallen below the standard of care required of an occupier. The county court's judgment for the claimant could not stand.

2. Per Pill LJ, the question was what conduct was reasonably required of the occupier in the particular circumstances. When deciding which precautions were reasonably necessary, the court had to consider the behaviour reasonably to be expected of visitors. There was no evidence of similar accidents or any finding that visitors approached the wall. A safe means of access and egress was close by. The common duty of care did not require protection against the claimant's foolhardy and unexpected choice to leave by jumping from a known drop when she could not see the ground below.

3. Mance LJ, concurring with some doubt, considered the risk of accidentally falling over the wall materially different from the risk arising from a deliberate attempt to descend it. The judge had not found it reasonably foreseeable that visitors would deliberately jump there. The foreseeable risk of a casual fall did not materialise.

4. Keene LJ agreed that liability could not be imposed merely because a fence intended to prevent accidental falls would also have prevented the claimant's deliberate jump. A fence was not necessarily required to discharge any duty concerning accidental falls; a warning and lighting might have sufficed. Applying Darby v National Trust [2001] EWCA Civ 189, a failure to guard against one kind of risk could not establish liability for the materialisation of a materially different risk.

5. Per Pill LJ, obiter, Darby did not necessarily prevent a finding of causation if a breach concerning accidental falls had been established. On appropriate evidence, a court could find that a stout fence would probably have deterred the claimant. Pill LJ would not have dismissed the claim on voluntary assumption of risk because the claimant lacked a full appreciation of the danger. Nor would he have been likely to disturb the trial judge's apportionment of contributory negligence.

• Court of Appeal (Civil Division): The defendant's appeal was allowed unanimously. The finding of breach of the occupier's common duty of care was set aside: [2005] EWCA Civ 39.

• Exeter County Court: His Honour Judge Overend gave judgment for the claimant on liability, found her 50 per cent contributorily negligent, and ordered damages to be assessed. No citation is stated.