“….The standard here in question does not recognise expressly or impliedly that compliance with it may be insufficient. There is no other evidence that the construction or weight bearing capacity of this cornice failed to meet local standards. Just as there was no evidence of prior incident similar to that which befell the Claimant, whether at this hotel or at another in the Princess group or in the Canary Islands or Spain more widely, so also there was no evidence of a prevailing practice to construct a cornice with reinforced concrete such as would bear the weight of a person, or even illustration of it at other hotels or buildings…”
“121. The case for the hotel is that there was no evidence of this being attempted in this large hotel of over 500 rooms, over 22 years of operation, or in any other hotel in the group, and that it was such a foolhardy act in the eyes of any reasonable hotelier that it was beyond sensible contemplation, or beyond contemplation as a risk which required warning: ‘the hotel could not reasonably have foreseen that anyone would attempt to walk on those ledges’. 122. In my judgment the “sooner or later” argument would be easier to present in like circumstances in the case of a claim in negligence at common law in England and Wales. First, I accept above that it was not unusual in the Canary Islands to find decorative features to balconies such as the present. Second, I have no evidence other than statement of his opinion by Mr Mesas (without supporting evidence) that failure to give such warning in relation to the ledge or cornice was inconsistent with local practice or local recognition of that which was required. Third, in the present case, the expert evidence of Mr Montoya runs against recognition of an obligation to warn in respect of the cornice, and he was easily the more impressive of the two expert witnesses whom I heard. Fourth, and contrary to my extreme sympathy for the Claimant, I find it difficult to accept that those responsible at a hotel in the Canary Islands should have foreseen that a guest would climb onto the outer ledge. For these reasons above, I find myself unable to conclude that under local standards that warning in respect of the fragility of the cornice was reasonably demanded under Article 18 of the Ordinance.”
“(iii) Was the act of the Claimant, in climbing to the other side of the balustrade and preparing to jump or step across the gap to his own balcony, so unexpected and/or foolhardy as to be a novus actus interveniens?”
“106. Causation. There is no doubt the door clicked shut so as to lock out the Claimant and his wife and parents. On my findings above, it is possible to categorise this as a defect and thus to constitute a departure from the standard that premises and services must be kept at the standards required to obtain authorisation for ‘touristic’ activity (albeit so might a failure to replace furniture which had become shabby and threadbare). It requires independent consideration whether any defect in the locking mechanism can be said to have caused the accident itself. The Defendant submits that it was not, and that the accident injury was the product solely of the Claimant’s own actions. 107. On the one hand, the Claimant and his parents and wife were impressively ordinary and considerate people, and of apparently careful background. 108. The Claimant himself was at the time of the accident employed as a security officer/fire office at an oil refinery in Milford Haven, he had prior to the accident had frequent health and safety training, and had been safety conscious on arrival at the hotel. Because it was something of a maze, he advised his children that if ever there were a fire they would have to make their way down from the balcony rather than risk trying to find their way through the hotel itself. The Claimant’s wife was a nurse, who told me that she dealt with life and death, and would never have contemplated letting her husband attempt this if she had thought that he might fall. 109. His father was prior to retirement a truck operator instructor and also a health and safety representative for Esso. His first act on arriving at room 358 was to read the safety notice on the back of the hotel door and look for an escape route in case of an emergency, saying “this has been instilled in me over the years with my health and safety training” (witness statement paragraph 19 Bundle 2 page 528). The Claimant’s mother was a retired nurse. 110. As individuals, they were decent people, with children/grandchildren, not single young men out on a spree. There was no relevant inebriation. The distance itself at the narrowest point between the exterior cornices of the respective balconies was 2 foot 7 inches and so if this had been at ground level or only a few feet above the ground it would have been a simple step, easily in the compass of someone 6 feet 2 as was the Claimant. 111. However any defect here in question, namely a readiness of the lock to snap closed in the locked position, was not a direct danger to those on the balcony, (unlike fragility of the ledge if this had been in breach of local standard). It was disquieting to be locked out and have no-one heed cries for attention. But there was no fire. There was no emergency. The minimum temperature that night was 19 degrees centigrade. The Claimant did not know and could not know that it was safe to stand on the ledge. The risk of injury, if it was not safe to stand on the ledge was obvious, and at two storeys up, life threatening. Unsurprisingly, the Claimant agreed that he would not have done this if he were on the top of a skyscraper. 112. Once the Claimant stepped on the ledge outside the balustrade, its fragility for his weight gave way under him like a trap door so as to plummet him to serious injury. It was this which caused the accident fall and injury. Whilst it may be that if there was breach of standard in relation to the weight bearing capacity of this ledge, this would not bar recovery, I consider that in relation to any defect in the lock of the sliding door, it was a strikingly new and independent act on the part of the Claimant. Even allowing for the open textured and pragmatic tests of causation in the law of England and Wales, I am driven to the conclusion that this was so new and independent an act, in circumstances which presented no emergency or threat, that it could not be said the locking out was a sufficiently proximate cause of the accident, as opposed to being part of the history and background to it. Alternatively stated, any defect in the lock having the potential to lock spontaneously did not render the premises unsafe by local standards. 113. It seems to me that the Claimant can legitimately argue that fragility of the ledge, if in breach of standards, caused his very serious injury, but that breach of standards in a lock which permitted the door to be inadvertently locked closed was itself not a sufficiently proximate cause of his injury.”
“…the most natural and reasonable action on the part of someone who finds herself undesignedly confined is to seek the means of escape.”
“…to balance the risk taken against the consequences of the breach of duty; in other words, … to weigh the degree of inconvenience to which the plaintiff had been subjected with the risks that she was taking in order to try and do something about it.”
“….I quite agree that, if the negligence of a railway company puts a passenger in a situation of alternative danger, that is to say, if he will be in danger by remaining still, and in danger if he attempts to escape, then, if he attempts to escape, any injury that he may sustain in so doing is a consequence of the company's negligence; but if he is only suffering some inconvenience, and, to avoid that, he voluntarily runs into danger, and injury ensues, that cannot be said to be the result of the company's negligence. It is hardly necessary to say, that though I use the words ‘danger’ and ‘inconvenience,’ yet, if the inconvenience is very great and the danger run in avoiding it very slight, it may not be unreasonable to incur that danger.”
“(i) Was the locking mechanism of the sliding door in room 357 defective in breach of local standards? (ii) Did the ledge on which the Claimant stood and which gave way beneath him form part of the balcony, so as to be in breach of local standards? (iii) Was the act of the Claimant, in climbing to the other side of the balustrade and preparing to jump or step across the gap to his own room, so unexpected or foolhardy as to be a novus actus interveniens? (iv) If otherwise the Claimant would be entitled to succeed, was there contributory negligence and if so what deduction should be made?”
“It seems to me that the Claimant can legitimately argue that fragility of the ledge, if in breach of standards, caused his serious injury, but that breach of standards in a lock which permitted the door to be inadvertently locked closed was itself not a sufficiently proximate cause of his injury”
“The quality of premises and services. Accommodation establishments must ensure that their premises and services are kept, at all times and as a minimum, at the standards required to obtain any authorisation to carry out their touristic activity.”
“There is no doubt the door clicked shut so as to lock out the Claimant and his wife and parents. On my findings above, it is possible to categorise this as a defect and thus to constitute a departure from the” required standard. There was some debate during the hearing of the appeal as to whether these words meant that the judge had not found a breach because of the use of the word “possible”
“(1) The starting point is that a defender is not liable for a consequence of a kind which is not reasonably foreseeable: McKew v Holland & Hannen & Cubitts (Scotland) Ltd 1970 SC (HL) 20, 25 per Lord Reid; Bourhill v Young[1943] AC 92 , 101 per Lord Russell of Killowen; Allan v Barclay 2 M 873, 874 per Lord Kinloch … … if the pursuer's injury is of a kind that was foreseeable, the defender is liable, even if the damage is greater in extent than was foreseeable or it was caused in a way that could not have been foreseen: Hughes v Lord Advocate[1963] AC 837 , 847.”
“The Court of Appeal majority were right to uphold the claimant's submission that it was not incumbent on her to show that suicide itself was foreseeable. But, as Lord Pearce observed in Hughes v Lord Advocate[1963] AC 837 , 857, “to demand too great precision in the test of foreseeability would be unfair to the pursuer since the facets of misadventure are innumerable”
“Can it be said that the plaintiff’s conduct was so unreasonable as to eclipse the defendants’ wrongdoing?”