PI Brief Update

ZZZ v MOD: A drunken 'frolic' does not change the status of a visitor to a trespasser - Maia Cohen, Temple Garden Chambers

17/08/26. The Claimant, a young serviceman, sustained a serious brain injury after falling head-first over a 900mm bannister on the second-floor landing in the army barracks where he resided. The incident occurred upon his return from a night out drinking with his fellow officers. Moments before his fall, the Claimant and Rifleman (Rfn) Graham were engaged in a “struggle” on the landing.

The Claimant sued the Defendant under the Occupiers Liability Act 1957, claiming the height of the bannister rendered the premises dangerous. The Defendant denied that it owed the Claimant a duty under s2(2) OLA 1957, on the basis that the Claimant and Rfn Graham “were acting outside the scope of their express and/or implied licence to be there meaning they were not lawful visitors”.

The trial judge held the Defendant fully liable for the Claimant’s injury. He made findings of fact regarding both the level of intoxication of and the physical altercation between the Claimant and Rfn Graham, which he described as “frolic”. In light of his findings, the Judge concluded:

• The Claimant and his fellow officers had not, by drinking to excess, put themselves outside the responsibility of the Defendant as employer and occupier.
• The Defendant had breached the duty it owed under the OLA 1957 by failing to carry out an adequate risk assessment prior to the accident. Had the risk assessment been of sufficient rigour, it would have likely identified the bannister as a potential danger.
• The Judge relied on expert evidence to find the height of the bannister caused the accident.
• The defence of volenti was not made out, “augmented by the fact that the Defendant contended that the height of the balustrade was not and was not known to be dangerous”.
• The degree of the Claimant’s intoxication was not sufficient to support a finding of contributory negligence.

The Defendant was granted permission to appeal to the Court of Appeal on the following grounds:

• Ground 1 – there was no proper evidential basis for the Judge’s findings that the incident occurred in the course of a “frolic” and that there was no great force involved in the struggle.
• Ground 2 – even if the Judge’s findings about how the accident occurred were supportable, he was wrong to find that the conduct of the Claimant and the other officers did not give rise to criminal liability. This criminality meant the Claimant was acting outside the terms of his licence to be on the premises, and the Judge was thereby wrong in law to find that the Defendant owed the Claimant a duty under OLA 1957.
• Ground 3 – given the above, the Judge’s failure to uphold the defence of ex turpicausa was wrong.
• Ground 4 – the Judge’s conclusion that the bannister was a danger was wrong and involved too high a standard and the benefit of hindsight, given the barracks complied with the building rules at the date of historic construction.
• Ground 5 – the Judge’s conclusion on causation was wrong given the expert’s concession that it was impossible, on the balance of probabilities, to say whether a bannister of 1100mm would have prevented the Claimant’s fall.
• Ground 6 – the Judge’s approach to the issue of contributory negligence was inadequate, incomplete and fundamentally flawed. He should have considered whether, viewed objectively, the Claimant had failed to take reasonable care for his own safety and in so doing had caused or contributed to his fall.

The Court of Appeal dismissed the appeal on all six grounds, which it characterised as “a concerted attack on the Judge’s findings of fact and conclusions of law”. As per Prescott v Potamianos, Stuart-Smith LJ recounted that the role of an appellate court on a challenge to an evaluative decision of the trial judge is not to “carry out a balancing task afresh but must ask whether the decision of the judge was wrong by reason of some identifiable flaw in the judge’s treatment of the question to be decided”.

• Response to Ground 1 – the Judge’s findings were properly open to him on the evidence available.
• Response to Ground 2 – in the light of the Judge’s factual findings about the struggle, an offence had not been made out. Obiter, Stuart-Smith LJ considered the conduct required of a Claimant to change his status from lawful visitor to that of trespasser. The Defendant sought to advance a principle to the effect that if a lawful visitor does something that, to his knowledge, the occupier would ask him to stop doing, he thereby becomes a trespasser. Stuart-Smith LJ deemed that principle is “far, far too wide” and unsupported by authority.
• Response to Ground 3 – on the basis of the above, ex turpi causa falls away as a defence. Even where a claimant’s conduct is found to be criminal, the defence of ex turpi causacannot apply where a claimant’s conduct is just one of several operative causes of an accident.
• Response to Ground 4 – the Judge did not rely on unacceptable hindsight but applied the correct question, namely whether the Defendant should have recognised the danger posed by the bannister. The evidence that justified the Judge’s conclusion was “overwhelming”.
• Response to Ground 5 – the Judge was entitled to make his findings on causation on the basis of the evidence before him. The premise of the expert’s statement relied upon by the Defendant was whether a 1100mm bannister would have prevented the Claimant’s fall if he had been pushed with significant force. This premise is materially different from the factual findings the Judge made about how the accident happened.
• Response to Ground 6 – the evidential burden lies with the Defendant to establish contributory negligence. In the circumstances, Stuart-Smith LJ held that he did not consider the appellate court could have “the necessary confidence in the fine detail of what happened to justify reversing the Judge’s decision and making a finding of contributory negligence”.

Image ©iStockphoto.com/tirc83