Geary v JD Wetherspoon Plc

An occupier generally owes no duty to protect a visitor from an obvious and inherent risk which the visitor freely, genuinely and knowingly chooses to run. The position may differ where the visitor lacks capacity or genuine choice, or where the defendant has assumed a specific responsibility for the visitor’s safety and the visitor has relied on it. Foreseeability alone does not establish a duty of care. A foreseeable or even foreseen risk created by the claimant’s own conduct does not become a danger attributable to the premises merely because the premises made that conduct possible or attractive. The claim therefore failed because the claimant voluntarily slid down an open banister despite recognising the obvious risk, and the defendant had assumed no relevant responsibility.

The claimant suffered catastrophic spinal injuries after deliberately sliding down a banister at the defendant’s public house and falling to the marble floor below. She brought a claim principally in negligence, with an alternative claim under the Occupiers’ Liability Act 1957 and the Occupiers’ Liability Act 1984.

The issues were whether she had voluntarily accepted an obvious and inherent risk, whether the defendant had assumed responsibility for her safety, and whether the ordinary Caparo requirements for a duty of care were satisfied. The court also considered whether the low banister constituted a danger arising from the state of the premises.

1. Claim dismissed. The claimant had made a genuine and informed choice to slide down the banister. She accepted that the risk of falling was obvious and that she had chosen to run it. The principle of voluntary assumption of risk therefore defeated the claim.
2. Under section 2(5) of the Occupiers’ Liability Act 1957 and section 1(6) of the Occupiers’ Liability Act 1984, an occupier owes no duty in respect of risks willingly accepted by a visitor or trespasser. The statutory position was indistinguishable from the common law defence of volenti non fit injuria.
3. Following Tomlinson v Congleton Borough Council [2004] 1 AC 46 and applying the reasoning in Trustees of the Portsmouth Youth Activities Committee (a Charity) v Poppleton [2008] EWCA Civ 646, the defendant owed no duty to protect the claimant against an obvious risk inherent in the activity she freely chose. The position could differ where there was no genuine and informed choice, a lack of capacity, or a relevant assumption of responsibility by the defendant.
4. The defendant had assumed no specific responsibility for the claimant’s safety, and there was no evidence of reliance. The authorities concerning assumption of responsibility, including Fowles v Bedfordshire County Council [1995] PIQR P380, Barrett v Ministry of Defence [1995] 1 WLR 1217, Watson v British Boxing Board of Control Limited [2001] QB 1134 and The Ministry of Defence v Radclyffe [2009] EWCA Civ 635, involved particular facts or reliance absent here.
5. There was no danger attributable to the structure or state of the premises. The banister was not defective; its lower height resulted from a building-control relaxation. The danger arose from the claimant’s decision to slide. Foreseeability, even actual foreseeability, did not itself create a duty.
6. Under the Caparo approach, foreseeability was established, but proximity and the requirement that it be fair, just and reasonable to impose the alleged duty were not. Everett v Comojo [2011] EWCA Civ 13 was distinguishable because it concerned protection against the actions of third parties, not protection against the claimant’s own conduct. Even if duty and breach had been established, the court considered that the alleged defect would probably not have caused the accident.