The White Lion Hotel (A Partnership) v James

An adult visitor’s conscious exposure to an obvious risk does not automatically absolve an occupier from liability. Under section 2 of the Occupiers’ Liability Act 1957, obviousness forms part of a fact-sensitive assessment which balances the likelihood and seriousness of injury, the social value of the relevant activity and the cost of precautions.

Section 2(5) preserves the stringent defence of volenti non fit injuria. Knowledge and willingness to encounter a general risk are insufficient. The visitor must expressly or impliedly accept the risk created by the occupier’s negligence and waive any resulting claim.

A relevant criminal conviction and basis of plea may be important evidence in the civil assessment. Civil liability does not, however, follow automatically from breach of a statutory health and safety duty.

A hotel guest fell to his death from a second-floor sash window. The window had a sill only 46 centimetres above the floor, its lower sash would not remain open, and no restrictor had been fitted. The hotel partnership later pleaded guilty to an offence under section 3(1) of the Health and Safety at Work etc. Act 1974.

HHJ Cotter QC entered judgment for the guest’s widow and estate under section 2 of the Occupiers’ Liability Act 1957, subject to a 60% reduction for contributory negligence. The hotel appealed. It argued that the deceased had consciously accepted an obvious risk, that section 2(5) excluded any obligation, and that the judge had wrongly treated the criminal conviction as automatically establishing civil liability.

The central issues were whether an obvious and consciously encountered risk precluded liability, whether the statutory defence of voluntary acceptance applied, and what evidential effect the criminal conviction possessed.

1. Appeal dismissed. The unchallenged facts established a danger arising from the state of the premises. The fully opening lower sash, low sill and defective mechanism created a foreseeable risk of grave injury during the ordinary use of a hotel bedroom. The negligible cost of restrictors and the absence of any significant loss of social value or personal autonomy provided a sound basis for finding a breach of section 2 of the Occupiers’ Liability Act 1957. The judgment for the respondent, subject to 60% contributory negligence, was upheld.

2. There is no absolute rule that a capable adult who consciously runs an obvious risk cannot recover from an occupier. The obviousness of a danger and the visitor’s knowledge are relevant to the reasonableness assessment under section 2(2), and may be decisive, but they remain part of a fact-sensitive balancing exercise. Tomlinson and Edwards did not displace that statutory analysis. Their materially different circumstances included the absence of a relevant defect, greater social or financial costs of precautions, and risks arising from activities outside the ordinary occupation of a hotel room.

3. A hotelier must take account of the degree of care reasonably to be expected from hotel guests under section 2(3). Guests may be tired, relaxed, affected by alcohol, seeking fresh air or tempted to smoke through a window. These are normal incidents of occupying a hotel room rather than exceptional recreational risk-taking.

4. Section 2(5) preserves the common-law defence of volenti non fit injuria. Its test is stringent. Knowledge of a general risk, and even willingness to encounter it, does not suffice. The claimant must expressly or impliedly accept the risk created by the occupier’s breach and waive a claim arising from the occupier’s lack of reasonable care. The findings supported contributory negligence, but did not establish that the deceased had absolved the hotel from responsibility or waived his legal rights.

5. The judge erred in holding that civil liability axiomatically followed from an unchallenged conviction under section 3(1) of the Health and Safety at Work etc. Act 1974. Section 47(1)(a) prevents the statutory duty itself from conferring a civil right of action. A conviction and its basis of plea may nevertheless be taken into account, with their weight depending on the facts. Here the admitted, reasonably foreseeable material risk was directly relevant to the danger which materialised, but the civil assessment remained independent and fact-specific.

Nicola Davies LJ gave the judgment. Elisabeth Laing LJ and King LJ agreed.

1. Court of Appeal (Civil Division): The hotel’s appeal was dismissed unanimously. The judgment for the respondent, reduced by 60% for contributory negligence, was upheld: [2021] EWCA Civ 31.

2. Queen’s Bench Division, Bristol District Registry: On 9 January 2020, HHJ Cotter QC entered judgment for the claimant under section 2 of the Occupiers’ Liability Act 1957, subject to a 60% reduction for contributory negligence. No neutral citation is stated.