ZZZ v The Ministry of Defence [2026] EWCA Civ 875

[2026] EWCA Civ 875Case No CA-2025-000329
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2025] EWHC 65 (KB)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
His Honour Judge Simon
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 8 July 2026
Before
LADY JUSTICE KINGLORD JUSTICE STUART-SMITHLADY JUSTICE FALK
Between
ZZZRespondentTHE MINISTRY OF DEFENCEAppellant
Andrew McLaughlin (instructed by Keoghs LLP) for AppellantChris Barnes KC and Stuart McCracken (instructed by Austen Jones Solicitors) for RespondentHearing Hearing date: 11 June 2026
Approved JudgmentThis judgment was handed down remotely at 10.30am on 8 July 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

Introduction

[1]In the early hours of Sunday 24 March 2019, the Claimant, who was an 18-year-old Rifleman with A Company 5 Rifles and based at Bulford Army Base in Wiltshire, fell from a second floor landing in the accommodation block where he was living and down to the ground floor where he suffered serious injuries including a significant brain injury. The stairs to the second-floor landing and the edge of the landing itself were guarded by what has been variously described as a balustrade or banister. The balustrade did not prevent his fall.[2]The Claimant sued the Defendant as his employer and the occupier of the premises where the accident happened. He brought the claim alleging negligence and breach of statutory duty, relying in particular on the provisions of the Occupiers Liability Act 1957 [“the OLA 1957”]. In response the Defendant, while admitting that it generally owed the Claimant a duty at common law to take reasonable care for the Claimant’s health, safety and welfare “akin to that owed by an employer to an employee”, denied that its duty was of any relevance. The Defendant denied that it owed the Claimant any duty pursuant to section 2(2) of the OLA 1957 because it was alleged that the Claimant and another Rifleman “were acting outside the scope of their express and/or implied licence to be there meaning they were not lawful visitors”.[3]On 17 January 2025, after a trial of the issue of liability, HHJ Simon sitting as a Judge of the High Court [“the Judge”] found in favour of the Claimant with no reduction for contributory negligence. He did so for the reasons set out in his judgment of the same date: [2025] EWHC 65 (KB) [“the Judgment”].[4]The Defendant now appeals against the order of the Judge. It launches a sustained attack on the findings of fact made by the Judge in the course of the Judgment. It is therefore necessary to review the findings in some detail. It is also necessary to have regard to some procedural steps that are relevant to the challenge to the Judge’s factual findings.

The evidential and procedural background

[5]There were numerous different sources of evidence available to the Judge. The accident happened after the Claimant had been out drinking with a group of other young soldiers. There was some drinking before they went off-base to Salisbury, where there was further drinking. The group comprised the Claimant, Rfn Graham, Rfn Peden and Rfn Green. Rfn Reeves agreed to drive the group to Salisbury and to pick them up again later. To put it neutrally for the moment, there was a dispute between the Claimant and Rfn Graham on the way back from Salisbury and, on their return to barracks, the Claimant’s accident occurred when he and Rfn Graham had been engaged in a struggle on the landing.[6]Each member of the group gave statements to the service police shortly after the accident. Rfn Graham had given a “no comment interview” followed by a prepared statement saying that he had not pushed the Claimant, and that the Claimant had been drunk, had stumbled towards the balustrade and missed it with his outstretched hand, which caused him to fall down the stairwell. The Defendant served hearsay notices in respect of the statements of Rfn Reeves and the members of the group other than the Claimant. The Claimant wanted to cross-examine Messrs Graham, Green and Peden and, on 28 March 2024 (approximately 1 month before the hearing of the trial of liability) obtained an order from Master Sullivan giving him permission to call them to be cross-examined on the contents of their statements. The Claimant’s solicitors then asked the Defendant for contact details: stating that “we propose to serve a witness summons on Declan, Peden, Graham and Green. We do not know their current rank but in the event one or more of them has been promoted, I should be grateful if you could please let me know what their ranks are and if they are still based as Ward Barracks.” In reply they were told that Rfn Graham had left the Army “and therefore has no current rank. [Rfn] Green has also left the Army. [Rfn] Peden is now a LCpl. We are not sure of his current location.”[7]Evidence at trial from Captain Peter Evans of the Royal Military Police confirmed that, if a soldier continues to serve in the British Army and their regiment and rank is known, they can be traced; and that when a soldier is discharged from the military, their civilian and discharge address will be kept on their records. On the information that is available to this Court, there is no reason why the Defendant could not have provided contact details in response to the Claimant’s request. The purpose of the letter was obvious and was not answered by the Defendant. The Defendant did not call the witnesses whose statements had been served. The Judge was told by the Defendant’s trial skeleton that contact had been made with Rfn Peden “early on but [he] declined to get involved”: [J44]. There is no suggestion that the Defendant took any steps to compel his attendance at court.[8]So far as I am aware, no other explanation was given for the decision not to call the potential witnesses. Thus, apart from the limited information about Rfn Peden, this Court does not know the reasons for that decision. It would be wrong to speculate about what, if any, reasons underpinned the decision not to call the witnesses and I do not do so. That said, the consequence of this brush off by the Defendant was that the Claimant was unable to contact or summons them. That had two malign effects. First, the Claimant was not able to cross-examine the witnesses on their statements. That was particularly unfortunate in a case where it was acknowledged on all sides that the Claimant had suffered a serious brain injury and, as correctly pleaded in the Defence, had given inconsistent accounts of what had happened: see Amended Defence para 10k. Second, the Judge was left with the statements served by the Defendant without their being tested in the trial process. The Judge was conscious of the fact that the evidence had not been given under oath or affirmation, had not been tested by any questioning and that no assessment could be made of the witnesses themselves in person as to credibility or reliability: [J45]. His assessment of their evidence was that there was no reason to doubt the accounts of Rfn Green and Peden in respect of the events leading to the incident and the incident itself. He considered that their evidence about the journeys to and from Salisbury were “not inconsistent” with the evidence of Rfn Reeves and that there was “no principled basis upon which to doubt their general description of it”. This assessment applied to the nature of the interaction between the Claimant and Rfn Graham and the mechanism giving rise to the fall: [J52]. I return to that evidence when considering the Defendant’s attack on the Judge’s findings.[9]A further factor, which should not be forgotten, is that the witness statements were put into evidence by the Defendant. That makes the Defendant’s sedulous forensic examination of the statements in search of inconsistencies that might assist its case of limited validity or assistance to this Court. That needs to be borne in mind, particularly when seen in the context of the Defendant’s submission that some of the contents of the statements may have been influenced by the fact that they were taken at a time when criminal proceedings were in contemplation (though none were subsequently taken) against Rfn Graham for his part in the incident. Such a suggestion, if it was to be made, should have been put to the witnesses: for obvious reasons, it was not. The Judge was conscious that the statements were taken for the purposes of an immediate criminal investigation: [J52].[10]There were other sources of information available to the Judge. The Claimant gave evidence. As the Judge recorded, the injuries that he suffered meant that he is not able to recall some details of the incident. In addition, he had given numerous different and inconsistent accounts of his interaction with Rfn Graham and how he came to fall, which led the Judge to an assessment that, although he was a witness who was doing his best to give truthful evidence, he was not a reliable witness in his recollection of significant events. It was the Judge’s assessment that his memory was affected by his injuries and that it was also adversely affected by the amount of alcohol he had consumed, preferring the evidence of Rfn Reeves to that of the Claimant about the state of his intoxication: [J50-51]. The Judge was, however, not persuaded that the hearsay evidence, despite its acknowledged limitations, should be treated with such caution that the Claimant’s evidence should be preferred where it conflicts.[11]I note in passing that during the appeal it was submitted that gaps and inconsistencies in the Claimant’s evidence were “convenient”. That was not put to the Claimant when he was cross-examined as it should have been if the submission was to be made.[12]Live witness evidence about Army practices, rules and procedures and the carrying out of risk assessments was given by(a) the Claimant’s commanding officer, Brigadier Ridland,(b) the Adjutant of 5 Rifles Battalion, Major Bossom, and(c) WO1 Pepper, who was in effect the safety officer for the barracks, and who gave evidence about the carrying out of risk assessments before and after the accident. The Defendant did not call Sergeant Isaak, who attended the parade the following morning and could have given evidence about the state of intoxication of the Riflemen other than the Claimant when on parade. There is no evidence to suggest that the other Riflemen were not fit for duty by 9 am. If they had not been fit for duty, the complete absence of any mention of their incapacity would be very surprising.[13]The Judge also had available contemporaneous or near contemporaneous documentary evidence from the Defendant in the form of: i) An accident report dated 25 March 2019, the day after the accident; ii) A document described as a “learning account” dated 27 March 2019; iii) An “accident/near miss investigation report”; iv) A post-accident risk assessment conducted in September 2019 by WO Pepper who confirmed that he had spoken to each of the soldiers concerned to get their confirmation of what he had written before he signed off the report.[14]The parties had permission to call a building surveyor and an expert in falls. For the Claimant Mr Stephen Watts discharged both roles. For the Defendant, Mr Robert Hill, an expert building surveyor, was instructed to deal with the relevance of the Building Regulations and the design of the stairs and their guarding. He was not instructed to consider fall mechanics. The Defendant instructed Dr Paul Lemon, a falls specialist who provided a report to the Defendant which the Defendant chose not to serve. Needless to say, the Claimant submitted that Dr Lemon’s report would have been served if it had been favourable to the Defendant and that the fact that it was not served suggests that his report was unfavourable. In my judgment, it is not necessary to rely upon such an inference in order to resolve this appeal. The effect of the Defendant’s decision not to serve a report or to call Dr Lemon was that Mr Watts’ evidence on fall mechanics was not controverted by expert evidence on behalf of the Defendant.

The factual background

[15]The main factual dispute in this appeal is about what happened on the landing in the seconds before the Claimant fell over the balustrade. What happened earlier is significant context, which must also be brought into account. By way of introduction I annexe two photographs, the first of which shows the Claimant standing beside the balustrade as it was at the time of his accident and the second of which shows the balustrade after works had been carried out to raise it.[16]At the time of the accident, and since the building had been constructed in about 1939, the top of the balustrade was approximately 900 millimetres above the foyer’s floor level. The work to raise the height of the balustrade was carried out after the accident and after a survey of the entire Army Estate. We were not told the cost of the works to the balustrade that is the subject of this action. The cost of carrying out such works over the entire Army Estate was of the order of £400,000. On any view, the cost of increasing the height of the balustrade with which we are directly concerned would have been modest in the light of the catastrophic consequences of a fall such as that suffered by the Claimant. Mr Watts described the cost of extending the height of the balustrade as being achievable at “minimal” cost. I would endorse that description.[17]The Claimant is 6 ft 4 inches in height and of “at least average” build. Rfn Graham was much shorter, being 5 ft 6 inches (168 centimetres) tall and of “skinny” build: [J49]. As a term of his employment the Claimant was required to live at the barracks and was allocated a single room for his occupation. The staircase and landing formed part of the common parts of the Claimant’s accommodation.[18]I will deal with the evidence about what happened earlier in the evening and the immediate lead up to the accident below: see [37]. The Judge’s central factual finding on the happening of the accident was that: “On the balance of probabilities, the incident occurred as described by Rfn Peden and Green, namely in the course of what was referred to at trial as ‘frolic’. In using that term, I intend it to mean something akin to a playfight, but exacerbated by alcohol. I do not find proved that there was any serious intent on the part of Rfn Graham to fight the Claimant, who towered over him and was clearly more powerful in terms of strength and physique. The layout of the landing, the intoxication of the two protagonists and the descriptive evidence that I prefer as more reliable, all coalesce to lead to the conclusion, that the fall was caused accidentally and not maliciously.” [J53][19]At [J56] the Judge amplified this finding by making the additional finding that “there was no conduct on the part of Rfn Graham or the Claimant that would give rise to criminal liability, whether assault, affray or otherwise.” And at [J59] he described the incident as “an act of intoxicated horseplay …” and that the Claimant was “more likely to have been responding to non-malicious horseplay initiated by Rfn Graham rather than being an instigator”.[20]The Army had made efforts in recent years to educate servicemen about the dangers of alcohol abuse and there had been a concerted campaign to try to curb excessive alcohol intake. Those efforts, however, had to be balanced with a number of findings made by

the Judge at [J54]:

“(i) … [T]he Claimant fell into a category of persons required to live-in at the barracks; (ii) When not on duty, the Claimant and other residents of the barracks were afforded significant freedom as to how they spent their free time; (iii) That freedom included drinking alcohol, both in the barracks and off-site, as well as being free to leave and return to the barracks, it seems without restriction of time. In this case, LCpl Smith visited Rfn Green’s room and saw the group drinking beer, about which nothing unfavourable was said. The group arrived back at the barracks at approximately 4am and encountered no challenge in gaining access; (iv) The primary requirement was to be fit for the beginning of the next duty/parade, which in this case was Sunday morning as the soldiers were due to travel away from the barracks for intended live-fire practice in the following week; (v) Rfn Green, Peden and Graham, however much they may have drunk over Saturday night and into Sunday morning, and despite the events following their return to the barracks, did it seem report for parade on Sunday morning in a state that sufficiently passed inspection. Had they not presented adequately, they would have faced disciplinary measures.”
[21]The Judge found (at [J55]) that it was impossible to be sure, if the incident had not occurred, whether the Claimant would have “struggled somewhat” to parade in a fit state on the Sunday morning, but “on the balance of probabilities … he might well have been.” Although this finding is not entirely unequivocal it is certainly not a finding on the balance of probabilities that the Claimant would not have been in a fit state to parade on the Sunday morning. The absence of such an adverse finding is not surprising given the lack of any evidence that the other members of the group were unfit for parade on the Sunday morning.[22]Again, the Judge amplified his core findings about the soldiers’ conduct by the further finding at [J57]-[J58]:
“57. [The soldiers’] activities, as I have found them likely to have been, were not at all beyond the bounds of reasonable expectation for young servicemen – thrill-seekers as some witnesses described them – who, though required by their employer to reside onsite, are nonetheless permitted wide latitude when off duty to continue to enjoy alcohol and do many of the things they would do if living elsewhere, so long as it does not interfere with their compliance with the high expectations of them when they are on duty. When off duty they were still subject to rules and regulations, but none of the evidence presented by the Defendant has established that the Claimant’s drinking was in breach thereof, if he was able to parade in a fit state when next required on duty. I repeat that the clear evidence is that others did so, having engaged in at least similar drinking and partying in Salisbury. 58. WO2 Pepper’s evidence that A Company was no more a concern for off duty activities than any other Company, fortifies my conclusions. Had the Defendant intended to go beyond an education programme to inculcate some self-discipline into servicemen about alcohol use/misuse, the latitude referred to above would have had stricter parameters attached to it, extending to periods off duty, particularly, if onsite.”
[23]In the light of his findings, the Judge reached the following conclusions: i) The Claimant and the other soldiers had not by drinking to excess put themselves outside the responsibility of the Defendant as employer and occupier: [J55]; ii) The cause of action based on Rfn Graham committing an assault falls away, as does the plea of ex turpi causa since there was no criminal behaviour by Rfn Graham or the Claimant: [J56]; iii) The Claimant and others were not acting outside their licence to occupy the premises so as to relieve the Defendant of its obligations pursuant to the OLA 1957: [J57]; iv) The Claimant’s drinking was not in breach of Army rules, the touchstone being that a soldier had to be fit for parade on Sunday morning: [J57]; v) The defence of volenti was not made out, for the same reasoning “augmented by the fact that the Defendant contended that the height of the balustrade was not and was not known to be dangerous”: [J59].[24]In relation to whether the Defendant breached the duty that it owed pursuant to the OLA 1957 the Judge found that: i) Risk assessment undertaken before the accident was inadequate. Had it been of sufficient rigour, it would likely have identified the balustrade as presenting a potential danger to those using the building in general, especially if reasonable account was taken of the range of heights and builds of such users: [J62]; ii) The accident was not some freak event – it could be repeated and with even worse consequences: [J62]; iii) By failing unreasonably to undertake sufficiently robust risk assessment to identify an inherently unsafe aspect of the barracks that undermined the reasonable safety of those occupying and/or using it, the Defendant breached its duty of care: [J63]; iv) Once the requirement on the Claimant to live in was settled, the extent of the Defendant’s duties was crystallised as including when the Claimant was off duty but in the barracks: [J63].[25]Turning to causation, the Judge accepted Mr Watts’ calculations and evidence, drawing support from his finding that the accident happened without any great force and in the absence of any lifting of the Claimant by Rfn Graham in a concerted attempt to push him over. Had the balustrade been higher, the risk of the Claimant falling over and suffering injury would have been materially reduced. Relying on the evidence of Mr Watts, a balustrade at a height of around 1100 millimetres would have reduced the risk of the Claimant falling over it such that the fall and its consequences would likely have been avoided.[26]Turning finally to contributory negligence: 65 … The Defendant’s key submissions on this point were that the Claimant’s conduct, in getting drunk and fighting, breached all of the applicable Army rules; that he knew what he was doing; his drinking was grossly excessive; he should have stayed in his room once he went there with his food; and that the rules were designed to promote the safety of the soldiers and other users of the barracks. The Defendant sought a very substantial reduction on this basis.66. In response, it was argued on the Claimant’s behalf that his drinking had not been made out on the evidence to have been grossly excessive, and therefore was not negligent; his leaving his room was neither negligent nor causative of the incident; there was no evidence that he left his room to confront Rfn Graham; any fighting involved Rfn Graham as the aggressor, not the Claimant; and that overall the evidence did not support any finding of contributory negligence on the part of the Claimant.67. The submissions on this point were, perfectly properly, directed to an interpretation of the circumstances surrounding the incident that I have found is not made out on the evidence. Within my findings of fact, the only pejorative conclusion, so to speak, that I have reached is that he was more intoxicated than he recalls, though I do not accept the Defendant’s characterisation of it as grossly excessive. Had that been the case, it would have emerged from the other witnesses whose evidence underpins the factual findings. Nevertheless, I have considered with care whether the degree of the Claimant’s intoxication is sufficient to found any measure of contributory negligence, but whether viewed on its own or in the context of the other findings I have made, I have concluded that the defence of contributory negligence is not made out.” [J65]-[67]

The grounds of appeal

[27]Permission was given on all grounds. Together they amount to a concerted attack on the Judge’s findings of fact and conclusions of law. I set out below a summarised version of the grounds, as follows: i) Ground 1: the Judge’s conclusions that the incident occurred in the course of a “frolic” and that there was no great force involved were “fundamentally flawed and therefore wrong.” The findings he made were unsupportable and/or illegitimate. He misdirected himself in relation to the hearsay evidence. There was no proper evidential basis for his findings, which were not open to him; ii) Ground 2: the Judge’s finding that the Claimant and the others had not breached Army rules and had not committed any conduct that would give rise to criminal liability and had not acted outside their express or implied licence to be on the premises were wrong in law even if his findings about how the accident occurred were supportable. As a result, his conclusions that the Defendant owed the Claimant a duty of care under the OLA 1957 and/or as employer were also wrong in law; iii) Ground 3: the Judge’s failure to uphold the defence of ex turpi causa was wrong given the offences the Claimant committed in conjunction with Rfn Graham; iv) Ground 4: the Judge’s conclusion that the balustrade was a danger was wrong and involved too high a standard and the benefit of hindsight; v) Ground 5: the Judge’s conclusion on causation was wrong given Mr Watts’ concession that, if subjected to a strong push, it was impossible on the balance of probabilities to say whether a balustrade of 1100 millimetres height would have prevented his fall; vi) 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.

Ground 1 – the Judge’s findings of fact

[28]The caution to be exercised by an appellate court when confronted by a submission that a Judge’s finding of fact is wrong and should be set aside was summarised by Lewison LJ in Fage UK Ltd. & anor. v Chobani UK Ltd. & anor. [2014] EWCA Civ 5, at paragraph 114, as follows:
“114. Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them. … The reasons for this approach are many. They include i) The expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed. ii) The trial is not a dress rehearsal. It is the first and last night of the show. iii) Duplication of the trial judge’s role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case. iv) In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping. v) The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence). vi) Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done.”
[29]Ground 1 is a direct challenge to the evaluative decision on the facts by the Judge. At [76] of Prescott v Potamianos [2019] EWCA Civ 932 a different constitution of this court identified the proper approach as follows:
“… on a challenge to an evaluative decision of a first instance judge, the appeal court does not 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, ‘such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion’.”
[30]A central plank of the Defendant’s case on Ground 1 is that the Claimant himself gave evidence that was inconsistent with the Judge’s finding that what was going on at the time of the accident was a frolic involving no great force. The Defendant relies upon the Claimant’s pleaded case, which included that, while the Claimant was on the landing “Rifleman Graham came at the Claimant aggressively. The Claimant placed Rifleman Graham in a headlock in order to restrain him. … Rifleman Graham tapped the Claimant to signify that he wanted to give up. The Claimant therefore released the headlock. The Claimant was close to the balustrade on the landing area. He felt a strong push, which the Claimant verily believes to have been perpetrated by Rifleman Graham. The push caused the Claimant to make contact with the balustrade, to pivot over the top of it, to fall down onto the ground floor below, and to sustain serious injury … .” He was cross-examined on his statement and made concessions during his evidence that were consistent with that account and supportive of the Defendant’s case.[31]However, the Judge was entitled to find that, although doing his best to assist the Court, the Claimant was not a reliable witness in relation to significant events. In his first contemporaneous accounts on arrival at the Emergency Department at Salisbury Hospital he said he remembered missing the top step and falling backwards. There is then a later note of him having just remembered that he fell 5 metres off a balcony onto his head. The note compiled on his discharge from the medical department states that he had his legs “pulled from under him”. Another nursing note says that he had remembered on returning from a CT scan that someone unknown lifted his legs and he went over the balcony. The hospital’s discharge summary states “he recalls being picked up and thrown from balcony for approximately 5 metres”. On different occasions he said that he had fallen backwards and, separately, that he had fallen forwards. In his witness statement for the trial he said that he felt a strong push which he believed was by Rfn Graham. In his police statement he said that he had had his back to the banister immediately before the incident. In his oral evidence he said that he had been facing it. On occasion he said he had been pushed from behind but elsewhere contradicted himself by saying he had been pushed in the chest. The level of inconsistency in his various accounts alone would have entitled the Judge to conclude that he was not a reliable witness.[32]The Claimant’s was not the only evidence about the incident. Rfn Green, who had referred in his witness statement to there being a playfight between the Claimant and Rfn Graham earlier in the evening, stated that when the soldiers got to the landing (which he describes as a foyer):
“[the Claimant] and Rfn Grahem started having another playfight but it appeared to be getting more serious. I don’t remember anything being said, but they were still laughing and giggling.”
He was close by. His statement continues:
“I wasn’t paying much attention to them, but I saw [the Claimant] get Graham in a headlock, and when I looked at them again, I saw Graham grab [the Claimant’s] arm and swing it off him, breaking out of the headlock. Graham then stood up straight, in a quick movement, and as he did so, I think the back of Graham’s head struck [the Claimant’s] arm, which knocked [the Claimant] back a bit and caused him to fall back against the banister. The top of the banister was level with the top of [the Claimant’s] legs, and as he hit it he flipped over the top, falling into the gap between the stairs.”
[33]Rfn Peden in his witness statement said that, when they got to the top floor, the Claimant and Rfn Graham:
“started having a friendly drunk fight. … I cannot recall anyone throwing punches but they were just grappling and shoving each other. … Green or I did not try to stop them because we knew they were just play fighting so we just stood near the entrance to [the Claimant’s] room watching them. At one point [the Claimant] had Graham in a headlock but [the Claimant] had Graham’s face smothered on his chest with his hand around the back of his neck. This is because [the Claimant] is 6’ 2’’ and towers over Graham. I think Graham had his hands on [the Claimant’s] chest and was trying to push [the Claimant] away from him as he had his head smothered against his chest and his hands around the back of his neck. Due to Graham’s head was smothered against his chest, he wouldn’t have known that they were moving toward the banister. The next thing I know was [the Claimant] falling over the banister.”
[34]Rfn Graham in his statement denied pushing the Claimant as alleged, though his statement takes matters little further. Similarly, the fact that the Accident report completed by Major Lee Roberts on the Sunday referred repeatedly to the Claimant and Rfn Graham “play fighting” does not add to the direct evidence that was available to the Judge.[35]I have not set out what Rfn Green and Rfn Peden said in their statements as a prelude to replicating the evaluative exercise carried out by the Judge: that would be inappropriate. Rather, I have set it out to demonstrate that there was evidence to support the Judge’s findings that are the subject of the Defendant’s attack in Ground 1. Seen in context, the reference in Rfn Green’s statement that what they were doing “appeared to be getting more serious”, even if accepted, does not preclude the Judge’s finding that the incident remained one of “play fighting”.[36]The Defendant attempts to circumvent this conclusion and the Judge’s findings by arguing that the witness statements are not reliable or that, viewed overall, they do not support the Judge’s findings. I have already dealt with the first criticism: see [9] above. Both in writing and in his oral submissions Mr McLaughlin for the Defendant sought to persuade us that what the witnesses said about events earlier in the evening meant that the Judge’s findings about what happened on the landing were not open to him. He submitted that the evidence as a whole should have compelled the Judge to find both that there was nothing “play” about the fight and that the Claimant had willingly engaged in the fight on the landing.[37]There was evidence about “tension” between the Claimant and Rfn Graham earlier in the evening. For present purposes it is sufficient to refer to the journey back from Salisbury. The group were being driven by Rfn Reeves, who had gone to pick the group up at 3.00 am from the City centre. He described in his statement that the two men:
“were just arguing and being drunk. They were pushing each other and I could feel things moving behind me. This was putting me off driving, so I stopped in a bus stop. … I don’t remember what they were arguing about because I wasn’t listening to what they were saying. I didn’t see what was going on either … . When I stopped the car, I think I told them to get out. [The Claimant] and Rfn Graham got out of the car and started arguing with each other. They were pushing each other or something. I wasn’t really paying attention, they were just being twats. I drove off because of it … went round the roundabout and came back. When I got there they were just stood there. I think someone shouted “get in the car” or words to that effect, and they got back in the car. I then drove to the McDonalds at Solstice services. All 4 of them were just sitting quietly in the car.”
[38]Rfn Green referred to the same incident:
“During the drive back, Graham and [the Claimant] were arguing about something, but I don’t know what. This resulted in them getting out of the car and having a play fight, which I don’t think was serious because they were both laughing.”
Rfn Peden could not recall if there were any incidents on the journey back, which he attributed to the fact that he had been drinking.[39]The Defendant submits that Rfn Reeves’ evidence is entirely inconsistent with that of Rfn Green and Rfn Peden about the journey back so that the Judge’s findings about what happened on the landing cannot stand.[40]Rfn Holter went to hospital with the Claimant. He recorded that the Claimant told him he had had “several altercations with Rfn Graham. He said that they had a scuffle whilst in Salisbury and that he had pushed Rfn Graham over” and that upon returning to camp they had again had a scuffle in the carpark outside the accommodation and he again knocked Rfn Graham to the floor.[41]The Claimant gave a more detailed account of what had happened on the journey back from Salisbury in his service police statement. According to him, it was Rfn Graham who told Rfn Reeves to stop the car, which he did:
“I noticed that Graham was angry, as he took his seatbelt off and got out the car quickly. He then came to my door and attempted to open it but couldn’t. I then opened the door and got out. I initially thought that he was joking, but once I got out of the car, I could see that Graham was angry. He was stood in a fighting stance, …, and he was huffing and puffing as if he was breathing heavily. I said to him, we can do this if you want, but just don’t kick me in the balls, or words to that effect. Graham said we wouldn’t but immediately swung his right foot forward, in a powerful kick, which I stepped back from, meaning that he didn’t connect. I told him not to do that again but he immediately tried to kick me again, using the same method. This time, I caught his foot in my hand, hooking two fingers behind his heel and held his foot, leaving him hopping around. I could see that he was very annoyed.”
[42]Once again, I set out the detail of the evidence relied upon by the Claimant solely to demonstrate that it did not compel the Judge to find that what happened on the landing was not “play fighting”; nor did it compel the Judge to find that the Claimant was the aggressor on the landing. There was uncontradicted evidence that taking a person’s heel as described by the Claimant or putting someone in a headlock are standard ways of de-escalating a potentially aggressive movement by another, according to the soldiers’ training. Both actions are at least consistent with the Claimant not having been an aggressor. Nothing in the other evidence compelled a conclusion that the incident on the journey home was anything more than “young people behaving like twats” (as Rfn Reeves described it) or a conclusion that the Claimant was the aggressor either on the way back or when on the landing.[43]This was a classic case of an incident (and its earlier context) about which the evidence was inconsistent and in respect of which it was the primary function of the trial judge to make assessments that led him to make findings of fact and conclusions based upon those findings. The Judge paid very close attention to the evidence and was fully aware that it was not all consistent. I readily accept that there were aspects of the evidence upon the basis of which, if accepted, the Judge could have made different findings; but that is not the question. The question is whether we are compelled to overturn the Judge’s findings on the basis that they were not properly open to him. For the reasons I have outlined above, there can only be one answer to that question: we are not compelled, not by a long chalk.[44]The only thing that has made me pause in relation to Ground 1 is the Defendant’s complaint that the Judge did not raise with the parties the nature of the findings that he was to make, findings which (while available to him) did not precisely reflect either party’s pleaded case. In my judgment he should have done so in accordance with best practice, but I am not persuaded that his failure to do so means that his judgment should be set aside. The Judge rightly reserved his judgment. Once he had formulated the findings that he was minded to make, I consider it extremely unlikely that he would have been deflected from that course by additional submissions. As it is, we have heard exhaustive submissions on this appeal, none of which come close to persuading me that he should not have made the findings that he did.[45]I would hold that the appeal on Ground 1 fails. The Judge was entitled to make the findings that he did for the reasons he gave.

Ground 2 – Duty under the OLA 1957

[46]The Defendant submits that the Claimant’s conduct contravened Army rules and amounted to criminal offences, such that it owed a duty to him under the OLA 1957 or as his employer. This submission must be assessed in the light of the Judge’s findings about what happened and the rejection of Ground 1.[47]The criminal offences that the Defendant alleges were committed by the Claimant are(a) doing an act that is prejudicial to good order and service discipline, contrary to section 19(1) of the Armed Forces Act 2006 [“the 2006 Act”],(b) being unfit to be entrusted with his duty and/or behaviour that is disorderly or likely to bring discredit to HM Forces due to the influence of alcohol, contrary to section 20(1) of the 2006 Act,(c) without reasonable excuse, fighting another person, contrary to section 21(1) of the 2006 Act, and(d) affray, contrary to section 3(1) of the Public Order Act 1986.[48]The Defendant called evidence from Brigadier Ridland and Major Bossom that is relevant to this ground. Brigadier Ridland gave evidence that soldiers would have training regarding alcohol misuse every year, referring to policies that were in place regarding alcohol. He would also speak to the Battalion annually, usually before periods of leave, warning the soldiers not to fall foul of alcohol misuse whilst on leave. The Army has “alcohol states” which advise soldiers of any limits on the amount of alcohol they are permitted to consume both on and off duty. He thought that the applicable state was “routine” at the time which meant that a soldier had to be in a fit and sober state to conduct his responsibilities when on duty. Turning to fighting, he exhibited a presentation sheet from routine training which identified offences against the person as the most common offences across the Army and highlighted that uncontrolled physical violence towards others “displays lack of Self Discipline and Respect for Others”. Soldiers were expected to adhere to the Army’s values at all times, both on and off duty. He gave as a specific example that soldiers can be penalised by the Army for bringing the Army into disrepute if they commit a crime off-duty.[49]In commenting on the soldiers’ behaviour on the evening in question, Brigadier Ridland said that(a) when soldiers are off duty they are free to come and go as they please, just like other 18-year-olds, provided that they are back in time for whatever may be their first parade and duty;(b) a night out drinking was fairly standard behaviour; and(c) if the Claimant had reacted to aggressive behaviour by Rfn Graham by grabbing his foot as he tried to kick him, or by putting him in a headlock to control him, that would be consistent with the Claimant’s military training and would be seeking to control and manage Rfn Graham’s aggression rather than escalating it. The Army’s general assessment of the Claimant was that he was not a heavy drinker and that he was “a keen and enthusiastic young Rfn”. There is no evidence to contradict this assessment.[50]Brigadier Ridland also gave evidence about how the Army responds to incidents such as the Claimant’s accident. He said that, where there is any suspicion of a crime or something to reach the threshold of severity, that is not investigated in the unit but is handed over to the Royal Military Police as happened in this case. If the RMP conclude that there is insufficient evidence to bring charges, he said that the unit cannot then conduct its own disciplinary procedures.[51]I note in passing that the Service Prosecuting Authority investigated the allegation that Rfn Graham had pushed the Claimant causing him to fall. On 25 July 2019 the decision was taken that there was “no realistic prospect of conviction on any criminal charge on the available evidence to prosecute [Rfn Graham]”. Major Bossom confirmed that no potential charges were considered against any of the other soldiers on the landing, including the Claimant. There is no evidence that any of them were disciplined.[52]Major Bossom gave evidence to similar effect about expected behaviour and discipline. He confirmed that, if soldiers were unfit for duty due to excessive alcohol consumption or if they fail to report for duty, they are disciplined within the unit and, usually, sanctioned with an administrative sanction. As a general observation he said that “with regards to alcohol however, soldiers were expected to be sensible but their free time is their own during which the Army cannot stop them from having a drink.” It was normal for 18-year-old soldiers to drink in barracks and then go out drinking in town, and they were not discouraged or advised against that. Soldiers coming back would be stopped at the gate, and if they were very, very drunk the guard would have something to say about that. His view was that there was a general duty of care to those soldiers. Playfighting was the sort of behaviour that was seen with 18-year-old lads in the barracks. WO Pepper gave substantially the same evidence, that soldiers drinking and engaging in frolic or similar behaviour was nothing new, having been around since the Army was formed, and it was something that he had experienced as well.[53]Brigadier Ridland gave other evidence that is material to the question of a continuing duty to intoxicated soldiers. The Kings Regulations provide that “Service personnel should be encouraged to consider their accommodations their own space away from their working routines. However, the Army must continue to fulfil its obligations as a responsible employer”. He accepted that he was required to ensure that the barracks were safe and appropriate and that the risks to his soldiers were as low as reasonably practicable. In response to a question in cross-examination about owing a duty outside usual working hours, he said always endeavoured to keep those risks as low and reasonable as possible at all times.[54]Ground 2 requires an intense focus on what the Claimant did, since the Defendant’s appeal asserts that, by his behaviour, he committed criminal offences and put himself outside the terms of his OLA 1957 entitlement to occupy his living quarters. For the reasons I have given, in the light of the Judge’s findings about what happened, the Claimant’s behaviour at worst was a response to a playfighting episode instigated by Rfn Graham in which the Claimant’s application of the headlock was in accordance with his training about how to de-escalate potential violence. That behaviour is not self-evidently prejudicial to good order and service discipline so as to amount to an offence pursuant to section 19(1) of the 2006 Act. Rather, it is consistent with being a measured and acceptable response to Rfn Graham’s instigation of the sequence of events that led to the accident. Similarly, despite Brigadier Ridland’s conjecture during re-examination that if the Claimant was still drinking to excess at 0400 that would be a military offence because he would not be in a fit and sober state to parade for a duty inspection, there is no sound basis for a conclusion that he would not have passed muster had the accident not happened and he had reported for duty in the morning: see [J54], set out above. On the basis of the Judge’s findings, what the Claimant did in response to Rfn Graham did not amount to disorderly conduct or conduct likely to bring discredit to HM Forces. I am therefore not satisfied that the Claimant committed an offence contrary to section 20 of the 2006 Act. Similarly, the Judge’s finding that no offence was committed is justified in respect of section 21 on the basis of the facts found by the Judge about how the accident happened. Nor is it demonstrated that the Claimant used or threatened unlawful violence towards Rfn Graham (or anyone else): the offence of affray is not proved.[55]These conclusions remove the factual basis that the Defendant needs in order to assert under Ground 2 that the Claimant was a trespasser when on the landing. In my judgment it would be perverse to hold that the Claimant was a trespasser. He was on the second floor because that was where the room was that he was required by the Defendant to occupy. 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. So stated, the principle is far, far too wide; and the judgment of Cotter J in James v White Lion Hotel [2020] PIQR P10 does not justify it. At [107]-[109] Cotter J was clearly conscious of the difficulties inherent in defining such a principle, for he started [109] by saying:
“Also, the duty owed under the Act in respect of premises such as a house or hotel cannot have been intended to turn on such matters as whether a cigarette is alight or not. If the Deceased sat on the window sill and did not smoke then as Mr Walker QC concedes he was not a trespasser (even if he had a packet of cigarettes in his pocket). If the Deceased has smoked a cigarette, but did not intend to smoke another then again as I understand matters, Mr Walker QC concedes that he reverts (at some stage and without moving) from being a trespasser back to a lawful visitor. I do not go so far as to say that there are no circumstances where smoking a cigarette may, in some, particularly commercial or industrial, premises alter the status of a visitor, but I do not believe that in this case the Act operates so as to limit the duty.”
[56]However, in an attempt to articulate a principled approach, Cotter J continued: “It seems to me that for the duty to cease ordinarily the person must be aware that if the occupier knew what they were doing they would be asked to stop an activity and to interact with the physical premises in a different way. The classic trespasser is told to leave the property, or to leave part of the property; such as a hatch or in Tomlinson the part of the lake in which it is necessary to swim (as it was too deep to stand; hence the risk of drowning). For the duty to cease a reasonable person must understand that the relationship with occupiers would alter, or at least there was a risk that it would be seen as altering, in the given circumstances. I do not believe that a reasonable person would believe that it would alter the duty owed in respect of the premises during, but only during the course of having a cigarette (i.e. not before or after).” (Referring to Tomlinson v Congleton BC [2004] 1 AC 460)[57]It will immediately be noticed that Cotter J was articulating a factor that would be necessary for the occupier’s duty to cease. He was not saying that, on its own, that feature would be sufficient. In my judgment he was wise not to do so. Furthermore, I am not convinced that subjective awareness is a necessary prerequisite for the occupier’s duty to cease. The Act does not say so. The relevant question under the OLA 1957 is whether a person is a “visitor”. That is, someone who enters (or otherwise uses) premises by express or implied permission of the occupier: see Clerk and Lindsell on Torts, 24th Edn. Para 11-15. For my part, I would respectfully deprecate any attempt to elevate what he said into a one-size-fits-all approach to determining whether or not a person who would otherwise be a visitor has become a trespasser to whom no duty under the OLA 1957 is owed in relation to the state of the premises.[58]In my judgment, the Defendant’s case on Ground 2 faces another formidable difficulty: what was the extent of the premises where the Claimant was now to be regarded as a trespasser? It cannot have been the barracks as a whole, since the Claimant was still required to live there. It can hardly have been his room, for the same reason. What then? By a process of reduction one reaches the conclusion (rather like Cotter J’s conundrum of the smoking cigarette) that he was a trespasser on the landing just for the period when he was responding to Rfn Graham’s re-instigation of their play fighting. Even if the conduct of the soldiers involved the Claimant in committing an offence or breach of Army rules, this seems a startling and unworkable framework for establishing the presence or absence of a duty pursuant to the OLA 1957. It would mean that, although the Defendant owed no duty to the Claimant in relation to the balustrade during his struggle with Rfn Graham, it would have owed him a duty the following morning if he had stumbled, missed his handhold on the balustrade and fallen to the ground floor. I do not accept that the common duty under the OLA 1957 is so ephemeral.[59]I think it probable that it was considerations such as this that motivated Nicola Davies LJ to say in her judgment on the appeal from Cotter J: [2021] EWCA Civ 31, [2021] QB 1153 at [85]-[87]:
“85 A further and material distinction as between this case and the authorities relied upon by the appellant is the fact that the deceased was a guest at the appellant’s hotel. In Lewis the claimant returned to his hotel room at around 10pm having consumed alcohol. He later fell from the window. Sedley LJ noted that the common duty of care is owed not in the abstract but by a particular occupier here, a medium sized hotel, to a particular visitor, a young man with nothing to distinguish him from the hotel’s other adult guests. This observation reflects the provisions of section 2(3) of the 1957Act and the references to “want of care” of a visitor. The formulation of the duty encompasses the recognition that visitors are not always careful. 86 In my judgment, there is a material difference between a visitor to a park, even a pub, and a guest in a hotel. During the time the guest is in the hotel room it is a “home from home”
. The guest in the room may be tired, off-guard, relaxing and may well have had more than a little to drink. Despite notices to the contrary he may be tempted to smoke out of the window and in hot weather the guest will want fresh air, particularly, as in this case, in a room with no air conditioning. As the judge observed, these are “facts of life” for any hotelier. These are normal activities. 87 Contrast these facts with the “activities” contemplated in Tomlinson. Lord Hoffmann at para 45 observed that:
“it will be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake upon the land. If people want to climb mountains, go hang gliding or swim or dive in ponds or lakes, that is their affair.”
These activities go far beyond those involved in the ordinary occupation of a hotel room.” “it will be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake upon the land. If people want to climb mountains, go hang gliding or swim or dive in ponds or lakes, that is their affair.”[60]Finally, I am not convinced that, had he thought about it, the Claimant would or should have realised that, if one of his superiors had come upon the scene, he (the Claimant) would have been ordered to stop what he was doing. On the Judge’s findings, on being asked what he was doing he would have been justified in replying that he was responding to Rfn Graham’s re-instigation of what had been their playfight by putting him in a headlock to de-escalate what was happening, as he had been trained to do. It is not obvious or established that, in those circumstances, his conduct would have been criticised or prohibited by his superior.[61]I would hold that the appeal on Ground 2 fails. The Defendant owed the Claimant the common duty of care pursuant to the OLA 1957 throughout.

Ground 3 – ex turpi causa

[62]Once Grounds 1 and 2 are dismissed, the basis for Ground 3 falls away. I would dismiss the appeal on Ground 3. I would have dismissed it even if the Defendant had proved that criminal conduct on the part of the Claimant was one of two or more causes of the accident as the doctrine of ex turpi causa cannot apply in such circumstances: see McCracken v Smith and others [2015] EWCA Civ 380 at [52].

Ground 4 – was the balustrade a danger?

[63]It was common ground between the experts that the balustrade had probably been installed on the original construction of the building in about 1939 and that the height of the balustrade was at or about the common level of guarding to stairwells and landings that had been employed for some considerable time before the building was built.[64]The building was originally constructed as a place to treat the sick and not for soldiers’ accommodation. It is not known when its use changed to be a barracks. It is therefore not known whether the change of use happened before or since the introduction of the Building Regulations. Since the 1970s the Building Regulations have provided guidance that the balustrade height on common stair landings should be 1100 millimetres. However, it was common ground that the requirements of the Building Regulations are not retrospective in the sense of requiring changes to buildings when and whenever the Regulations and associated guidance change over time. That said, the Building Regulations and Standards reflect the knowledge and expertise of the profession at the date when they are issued. They represent the consensus of current professional opinion and practical experience about sensible safety precautions in the design and construction of buildings. Conversely, the fact that a building meets any standards of design or construction that were in force at the time of its construction does not mean that they may not be assessed at a later date as giving rise to unacceptable risk and danger that requires protective measures to be undertaken. It follows that both as employer and Occupier, the Defendant should have kept the safety of the building under review using current professional standards of care and skill.[65]I have summarised the Judge’s findings on breach of duty at [24] above. In my judgment, he was not merely entitled but plainly right to hold that the state of the balustrade constituted a danger that gave rise to an unacceptable risk of injury. Nor did he fall into the trap of judging the associated issues of the danger posed by the balustrade and the Defendant’s breach of duty by relying upon unacceptable hindsight. It is true that no one recognised before the accident that the balustrade posed a danger. That is not determinative. The correct question, which is the question answered by the Judge, is whether the Defendant should have recognised the danger it posed.[66]The cumulative evidence that justified the Judge’s conclusion was overwhelming. It included: i) The post-accident photographic evidence of the balustrade in its pre-accident state with the Claimant (who, at 6’ 4’’ was not “freakishly tall”) standing beside it; ii) The evidence of both experts to the effect that current practice would require a balustrade to be at least 1100 millimetres, roughly 200 millimetres higher than the height of the in situ balustrade; iii) The acceptance by WO Pepper when looking at the photograph of the Claimant standing by the balustrade in its pre-accident state that there was “a pretty obvious risk … of going over that banister when it was so clearly low” and that the risk “looks horribly obvious”; and that “when you see it, you identify straight away, “My word, that’s a huge risk. What can we do?” iv) The evidence of WO Pepper that frolic and alcohol were well known to the Army and should have featured in the assessment of risks for those living in the barracks; v) The conclusion of the Defendant’s post-accident risk assessment that the risk of falling from height had a likelihood of “common, regular or frequent occurrence” and a severity level of “fatalities, major injury or illness”, both of which were the highest categories; vi) The Appellant’s learning account, which concluded that “the balustrade was not at a sufficient height to prevent the fall”; vii) The Authority Notice of Change dated 12th May 2020, which noted that “The bannisters throughout the retained estate are too low in places and pose a severe risk to occupants of those SLA (Single Living Accommodation) falling over them. There have been two serious falls from height in SLA over the past 18 months – both have resulted in VSI and medical discharge. One of the soldiers’ parents pointed out the hazard when he dropped his son at the Battalion for the first time”; viii) Mr Watts’ evidence, as set out in the conclusions to his report, that:
“the balustrade over with the Claimant evidently fell and was about 900 mm high, was too low to afford a reasonable level of safety in the Defendant’s building. Indeed, I consider that would have been reasonably obvious to anyone assessing and considering the risks in using the building for the purpose for which it was provided.”
[67]The fact that previous risk assessments or inspections had not identified the danger posed by the height of the balustrade merely justifies the Judge’s finding that they were inadequate. There is no sign that the Judge applied too high a standard. To the contrary, his findings that the balustrade was a danger, that previous risk assessments had been inadequate, and that the Defendant was in breach of the duty it owed the Claimant were findings that he was fully entitled to make.[68]I would dismiss the appeal on Ground 4.

Ground 5 – causation

[69]The Judge accepted that Mr Watts’ calculations and evidence were a reliable guide. He also found that the incident occurred without the application of any great force or a concerted attempt by Rfn Graham to push the Claimant over and without anyone lifting the Claimant. He was entitled to make those findings on the evidence before him.[70]The Defendant seeks to rely upon a passage in the cross-examination of Mr Watts which appears at pages 154-155 of the supplemental bundle. At the end of the passage relied upon by the Defendant, Mr Watts agreed that, on the basis of what was being put to him, he didn’t know whether an extra 200 millimetres of height would have prevented the fall. So far so good. But the premise that underlay all of this passage of cross-examination was that a person was standing next to a balustrade of 1100 millimetres height and that another person was standing close to them and “pushed them with all their force, as much force as they could muster in an attempt to knock them off their feet.” Accepting that as the premise, Mr Watts accepted that he would not be able to say whether they would or would not go over the balustrade.[71]The reason why this Ground fails is that the premise on which it is founded is materially different from the factual findings that the Judge made and was entitled to make about how the accident happened. Mr Watts maintained his position as set out in his report and reaffirmed that position in re-examination. In the body of his report he had said:
“It is of course ultimately a matter for the Court to consider all the evidence provided in this case and to determine how the Respondent came to fall over the balustrade, into the stairwell and down to the ground floor. However that occurred, if a 6 feet 4 inch or 1.94 m tall male falls against a 900 mm high balustrade the possibility that he might topple over it is relatively high in my opinion. He is unlikely to topple over a 1.1 m high balustrade in those circumstances, …”
[72]The Judge was entitled to accept the evidence of Mr Watts and to find that causation was established.[73]I would dismiss the appeal on Ground 5.

Ground 6 – contributory negligence

[74]The Defendant submits that the Judge did not address the focus of its submission, which was that “the Claimant and [Rfn] Graham were engaged in a fight close to the balustrade and an open staircase, which the Claimant knew or ought to have known was dangerous and which carried the risk of a fall and therefore the possibility of serious injury.” The Claimant accepted in evidence that what he and Rfn Graham did was “very dangerous” and that it is “remarkable” that the Judge felt nonetheless the Claimant had done nothing wrong. The Defendant submits that what matters is the Claimant’s actions and not his intentions or whether he was sober or drunk; and it submits that it was self-evident that fighting, whether it be playfighting or otherwise, near a balustrade and open staircase (with descending handrails either side and a long drop to the bottom of the stairwell below them) is reckless. It is said that the Claimant and Rfn Graham engaged in the fight entirely willingly and voluntarily, that the Claimant went back to the landing area after having put food in his room and could easily have avoided getting into the altercation: he could have walked away at any stage, especially if the two of them were just “playing.” The Judge should have asked himself whether the Claimant had failed to take reasonable care for his own safety in fighting with Rfn Graham near the balustrade and an open staircase. Having found (as the Defendant submits) that he had, the Judge should have gone on to consider the culpability and causative potency of the Claimant’s actions. Having done that he should have concluded that the Claimant’s culpability was high and should have made a deduction for contributory negligence of 75%.[75]I have not found this an easy issue to determine. There are a number of relevant considerations. First, because of the Judge’s finding that he is not a reliable witness in his recollection of significant events, the Judge was entitled not to place significant great weight upon what the Claimant said in evidence about his conduct on the landing. Second, the Defendant’s characterisation of the Claimant’s conduct (which I have set out in some detail above) does not sit well with the findings of the Judge that(a) what happened immediately before the accident was instigated by Rfn Graham,(b) it was not proved that there was any serious intent on the part of Rfn Graham to fight the Claimant, and(c) the fall was caused accidentally and not maliciously. Third, on the Judge’s findings, the Claimant’s response (putting Rfn Graham into a headlock) was an appropriate way according to his training for the Claimant to attempt to de-escalate what was happening. Fourth, there is no precise finding of the duration of the interaction between the Claimant and Rfn Graham on the landing. On the one hand there is the evidence of Rfn Green that he detected that the struggle was becoming “more serious”; but on the other there is the description of the headlock, with the Claimant saying that he was tapped by Rfn Graham to indicate that he should let go, which then appears to have led very shortly to the Claimant going over the balustrade. Fifth, I would not criticise the Claimant for not appreciating that the balustrade was a danger because it was so low. I can see no reason why he should have appreciated the danger it posed when the Defendant’s (inadequate) risk assessments had not. Sixth, by reference to the photographs I have annexed to this judgment, the landing was quite extensive and there are no findings about precisely where the Claimant and Rfn Graham first came together on the landing or, apart from the fact that it was clearly close to the balustrade, where they were when the Claimant put Rfn Graham in the headlock.[76]The burden of proving contributory negligence rests on the Defendant. For the reasons I have just set out, the Defendant’s case on the issue depends upon the assertion that the Claimant should have withdrawn from the interaction with Rfn Graham rather than continuing it by putting him in the headlock. In a case where it appears that the interaction after Rfn Graham re-instigated it was swift and short, I do not consider that this court can 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.[77]I would therefore dismiss the appeal on Ground 6.

Conclusion

[78]It follows that, if King and Falk LJJ agree, I would dismiss this appeal.[79]I agree.[80]I also agree. ANNEX TO [2026] EWHC Civ 875