Clay v TUI UK Ltd

Remoteness and novus actus interveniens are distinct inquiries. First ask whether damage of the kind suffered was reasonably foreseeable. If so, the precise mechanism or extent need not have been foreseeable. The court must then ask whether the claimant’s intervening conduct was so unreasonable, voluntary and independent that it eclipsed the defendant’s wrongdoing. Relevant considerations commonly include foreseeability, the degree of unreasonableness and the claimant’s freedom of choice. In escape cases, the court balances the inconvenience caused by the breach against the danger undertaken. No separate test applies. A high degree of unreasonableness is generally required. The appeal was dismissed because the claimant’s voluntary attempt to cross between hotel balconies, without danger or emergency and despite an obvious life-threatening risk, was a novus actus interveniens.

The appellant suffered serious injury after stepping onto a ledge while attempting to move from his parents’ hotel balcony to his own balcony in Tenerife. The attempt followed the inadvertent locking of the sliding door to the balcony occupied by the appellant, his wife and his parents.

The Cardiff County Court dismissed the claim on causation after finding that the locking mechanism was defective, while rejecting alleged breaches concerning the ledge and warnings. The appellant appealed the causation finding. The respondent served a Respondent’s Notice challenging the finding of breach. The central issue was whether the appellant’s conduct eclipsed the causative effect of the defective lock.

1. Disposition. Hamblen LJ and Kitchin LJ dismissed the appeal. Moylan LJ dissented and would have allowed it, with a 45% reduction for contributory negligence. Because the causation appeal failed, the court did not need to determine the Respondent’s Notice concerning breach of duty.
2. Applicable principles. The threshold question is whether the consequence is of a kind that was reasonably foreseeable. If it was not, the damage is too remote. If it was, liability is not avoided merely because the extent or precise manner of the damage was unforeseeable, as explained in Simmons v British Steel plc [2004] UKHL 20.
3. A novus actus interveniens occurs where the claimant’s conduct becomes the sole effective cause of the injury and eclipses the prior wrongdoing, even though the wrongdoing remains a factual or “but for” cause. The assessment is fact-sensitive. Relevant considerations include the foreseeability of the conduct, the degree of its unreasonableness, and whether it was voluntary and independent: Spencer v Wincanton Holdings Limited [2009] EWCA Civ 1404.
4. The same approach applies in escape cases. The court balances the inconvenience caused by the breach against the risks undertaken in attempting to escape. The majority regarded this as the approach in Sayers v Harlow UDC [1958] 1 WLR 623, where the inconvenience was great and the danger slight. Here there was no emergency or threat. The claimant did not know, and had no basis for knowing, that the ledge was safe. The risk of life-threatening injury was obvious. His deliberate and voluntary conduct was highly unreasonable and eclipsed the defective lock.
5. The trial judge had considered the relevant evidence and reached an evaluative conclusion open to him. The appellate burden was therefore not satisfied. Moylan LJ considered that the judge’s approach was too narrow. In his view, the question was whether personal injury from being trapped on the balcony was foreseeable and whether the claimant’s considered response was objectively so unreasonable that it went beyond contributory negligence. He would have found that the defective lock remained causative.

1. Court of Appeal (Civil Division) — The appeal against the causation finding was dismissed by a majority. The Respondent’s Notice concerning breach was not determined. [2018] EWCA Civ 1177
2. Cardiff County Court — Following a trial, HHJ Seys Llewellyn QC dismissed the personal injury claim on causation in a reserved judgment dated 7 April 2016.