Spearman v Royal United Bath Hospitals NHS Foundation Trust [2017] EWHC 3027 (QB)

Case No HQ16P00462[2017] EWHC 3027 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 04/12/2017
Before
MR JUSTICE MARTIN SPENCER
Between
JAMES SPEARMANClaimantROYAL UNITED BATH HOSPITALS NHS FOUNDATION TRUSTDefendant
Adrian Hopkins QC (instructed by Penningtons Manches LLP) for ClaimantLord Faulks QC and Andrew Spencer (instructed by Browne Jacobson LLP) for DefendantHearing Hearing dates: 13, 14, 17 and 20 November 2017
Judgment

INTRODUCTION

[1]On 5 May 2011, the Claimant, James Spearman, suffered a hypoglycaemic attack (being Type 1 diabetic) and he was taken by ambulance to the Royal United Hospital, Bath, arriving at 22.00 hours. Within 15 minutes, he had left the emergency department of the hospital, climbed five flights of stairs to a flat roof, climbed over a protective barrier and either fallen or jumped into a courtyard below where he suffered serious injuries.[2]The issue which I have to decide is whether this accident occurred as a result of the breach of duty of the defendant whether owed to the Claimant under the Occupiers Liability Act 1957 and/or the Occupiers Liability Act 1984 or at Common Law, or whether the Claimant was the author of his own misfortune. If I decide that the defendant is liable for the accident, then there is an issue whether I should find any contributory negligence on the part of the Claimant. HISTORY[3]The Claimant was born on the 5th November 1964. I heard evidence from two of his siblings, his sister Zara Milligan who is 8 years older and his brother Andrew Spearman who is 4 years older. At about the age of 11, the Claimant developed Type 1 diabetes which he would control by injecting himself with insulin. The Claimant did not let his diabetes prevent him from enjoying life to the full. One of his passions was for shotgun shooting. He was also very sociable and would visit friends around the country. He worked as an Insurance Broker after leaving school at the age of 18.[4]Unfortunately, in about 1987, when the Claimant was 22 or 23 years old, he was driving to Yorkshire from London when an Army truck pulled forward into his path and there was a collision. The Claimant sustained a brain injury and he was an in-patient at York Hospital for 2-3 months before being transferred to the Wellington Hospital in London where he remained for some further months. He was then discharged home to the family home in Hertfordshire where his mother employed full time residential nurses to care for him initially.[5]The evidence is unanimous that the Claimant’s experiences in hospital led him to develop something of a phobia for hospitals. His brother Andrew says in his witness statement that “James detested hospitals”.[6]Gradually, it became possible for the Claimant to rehabilitate himself but there seems no doubt that there was a significant change to his personality as a result of the accident in 1987. His life is described by his brother, sister and other witnesses. Andrew Spearman said that whilst, on the one hand, the Claimant was “a shadow of his former self”, he did not need 24 hour assistance and monitoring and he resented too much attention. He tried to be as independent as possible. Eventually, in early 2003, when their mother, Mrs Spearman senior, developed dementia, they moved to the village of Colerne in Wiltshire, where Andrew Spearman farmed. Initially, a full time nurse was employed to live with James Spearman. Andrew Spearman took over the management of James’ life from their mother who was no longer able to do it. Thus, Andrew took James to appointments, liaised with the nurse about his routine and medications and managed his finances. However, James found it very humiliating to have someone living with him: all he wanted was some domestic help and some prompting/assistance with organisation, not a “nanny” to look after him and tell him what to do.[7]Eventually a routine was settled upon. James moved into his mother’s old house after her death in about 2004, Diana Beazer was employed as a housekeeper doing domestic chores but also keeping an eye on the Claimant and the nurse would visit once every week or two to ensure that all was well from a medical perspective. Although the Claimant had also developed epilepsy after the road accident in 1987, this became more controlled and the brain injury did not prevent the Claimant from being able to monitor his own diabetes and self-medicate his insulin.[8]The routine was that the Claimant would travel to London to see friends about once a week. He would use public transport on his own, and upon arrival at Paddington Station in London, he would be able to find his way (walking) to see his friends or visit his private members’ club or stay with his sister Zara who lived near Notting Hill Gate. The accident in 1987 had left him with tunnel vision so that there was some risk to him in crossing roads and the like, but generally he appeared to be able to keep himself safe and lead a relatively independent existence, under the watchful and – if I may say so, loving - eye of his brother and sister.[9]Nevertheless, incidents did occur which illustrate that the Claimant had a significant personality change as a result of the 1987 accident. His brother, Andrew, told me how the Claimant had good and bad days but was much less self aware, or aware of risk or the effects of what he did and what was going on around him. He described how the Claimant became “totally single minded about issues” but was unable to learn from his experiences. An example was an occasion in the 1990’s when the Claimant had been on a shooting trip to Scotland. He flew back from Edinburgh to Heathrow airport where his mother was due to pick him up but was delayed in traffic. The Claimant then got it into his head that it would be good idea to clean his shotgun whilst waiting in the terminal, and this ended in the police cordoning off Terminal 1 and arresting him. Andrew Spearman says; “Jamie was oblivious to the fact that the police were surrounding him or that his actions would cause alarm to others. Jamie lacked empathy for his surroundings or an appreciation of the threat that certain activities or environments would pose to him. Jamie would become fixed on the objective he was trying to achieve, and once he had decided to do it he became blinkered by doing that task such that he would not appreciate the whole picture.” In my judgment, this comment is pivotal in understanding what happened when the Claimant sustained the accident which is the source of this claim.[10]There were also occasions when, despite his medication, the Claimant would suffer from hypoglycaemic attacks which would make him confused, and the combination of this with his existing brain injury made him vulnerable. Andrew Spearman says that his brother became particularly single minded and stubborn when having a hypoglycaemic attack.[11]It is relevant to mention the Claimant’s demeanour and attitude to life. In this regard, the evidence was all one way. Despite his difficulties, the Claimant was described as a person who had an optimistic and cheerful approach to life. Andrew Spearman said that his brother had a very positive view of life and was as robust as could be expected in the circumstances. Alexandra Asquith, a friend of the family since childhood, said in her witness statement that “despite all the difficulties Jamie has encountered, it seems to me that he had an admirable zest for life. He was determined to keep coming to London and he obviously enjoyed keeping in touch with his friends. He also managed to keep a remarkable level of independence and a cheerful disposition.” In her evidence to me she said that “self harm was not in his nature at all: he was always positive and cheerful and loved coming to London”. On the day before his accident, the Claimant had travelled up to London in the usual way and had stayed overnight with his sister, Zara Milligan. She described him as being “completely his normal self, and he said and did nothing to make me think that he was any different from his usual self. Jamie was a lively and spirited character. When Jamie came up to London he would be very chirpy and excitable about being in town. This occasion was no exception.” She described how on the morning of the 5th May 2011 he had been no different from his normal self and had chatted with her normally over breakfast before setting off to walk to Paddington Station and catch the train back to Wiltshire. None of the witnesses who gave evidence could remember an occasion when the Claimant had expressed any thoughts of self harm or suicidal ideation and they made it clear that this was simply not in his nature. THE INCIDENT IN QUESTION[12]On the evening of 5th May 2011, the Claimant suffered a particularly bad hypoglycaemic attack. It appears that this may have been something to do with the fact that his oven was not working and he had been unable to cook himself a proper meal. Mrs Beazer, his housekeeper, received a telephone call from the Claimant. She went to see the Claimant about 6.30-6.40pm and found James sitting in his armchair and although he was able to talk, he seemed quiet and a bit confused, not his normal self. Mrs Beazer was sufficiently concerned to call Andrew Spearman who came round to see his brother. In the time it took Andrew to get there, James had begun to deteriorate and was acting more strangely and seemed dazed and confused. Andrew Spearman told me how this was a particularly bad hypoglycaemic attack such that he wasn’t able to make any progress with his brother in persuading him to take sugar and Andrew decided he needed to call an ambulance. An ambulance was called at 20.36 and two paramedics, Mr Richard West and Mr Jason Hall attended the house at 20.48.[13]It is quite clear that Andrew Spearman had done exactly the right thing in calling an ambulance. When they got there, the ambulance personnel found that James was virtually comatose. His Glasgow Coma Score was only 4 indicating that he had no eye response, he had no verbal response and his only motor response was “extensor (rigid) response, decerebrate posture”. The ambulance personnel inserted a cannula and immediately started an intravenous drip of 10% glucose and this was followed by a second bag of glucose at 21.00. The Claimant’s blood sugar level recovered from “low” (unreadable) to 14.1 mmmol/L and his Glasgow Coma Score recovered to 10/15 (possibly 12/15 but there is some uncertainty about the score). However, the Claimant was by no means back to normal. Mr West told me that the Claimant “responded quite quickly to management of his blood sugar levels but still wasn’t really engaging with us and was quite withdrawn. His brother confirmed that he still wasn’t “normal for him”. The Glasgow Coma Score indicated that the Claimant was still not fully functioning and so the ambulance personnel decided to take the Claimant to hospital. This decision was supported by Andrew Spearman, despite his brother’s dislike of hospitals and reluctance to go . He described how “James had reached a point where he was acting like a drunken person” but any mention of hospital was objected to by him quite vehemently. He describes some lengthy discussions and even argument about James attending. James got somewhat aggressive verbally and resisted attempts to get him up and out of the house but in the end it was Diana Beazer who persuaded him to go. He was adamant that he did not want to go but after a long discussion he was persuaded to.[14]Andrew Spearman believed that, once James had fully recovered his consciousness he would very likely be very cross about being in hospital but Andrew felt that this was something that they could just deal with later that evening or in the morning. He said in his evidence that he expected to see his brother in the morning and for there to be an argument about him having been taken to hospital. He warned the paramedics that his brother would continue to be difficult about going into hospital and would not want to stay, as was also apparent from his behaviour. In his oral evidence, Mr Spearman told me that although James had got involved in the discussion about going to hospital and had said very clearly that he didn’t want to go, and had participated to a degree, he was “not alert enough to have a rational discussion”. He said firmly that he didn’t want to go which was in character in that he never wanted to accept the fact that he needed help. Nevertheless, Andrew Spearman was worried about his brother’s confusion and felt that hospital was the safest place for him to be. He fully expected to be rung up later that evening to be asked to come and fetch James to take him home.[15]The ambulance arrived at the hospital at 22.00. Just before they arrived, Mr Hall had carried a final check and examination of the Claimant including checking his airway, respiratory rate, heart rate, capillary refill time, saturations and blood pressure. He also checked the Claimant’s Glasgow Coma Score and this remained 10, the lowest score being for verbal responses which was still “none”. Nor was he fully obeying commands for movement but was able to initiate “purposeful movement to painful stimulus”. They took the Claimant into the Emergency Department of the hospital and handed over his care to Nurse Sarita Thompson. Nurse Thompson signed the form indicating formal handover of the patient from the Ambulance Service to the hospital at 22.10.[16]There are two pieces of evidence about the handover which are potentially of significance. 1) The Claimant, in response to a verbal request, had transferred himself from the ambulance trolley onto the emergency department trolley. Miss Thompson described how this had surprised the ambulance crew as the Claimant had not spoken to them and had appeared disengaged and this had given her the impression that he was not confused. 2) The Claimant said something to one of the paramedics along the lines of “going upstairs”, which did not make sense. In a statement made on 18 May 2011 for the purpose of the hospital internal investigation, Mr West, the paramedic, said that he had been told by the other paramedic, Jason Hall, that during the handover “the patient asked to go up a level”. The nurse had been there and they had questioned if he was going hypoglycaemic again. This remark indicated that the Claimant was either still confused or that his confusion was returning.[17]Miss Thompson went to fetch the forms that she would need to complete when carrying out her initial assessment of the Claimant which meant leaving the Claimant for about 1 minute whilst she went to the main nursing station, a very short distance away. In that time, it appears that the Claimant got off the trolley. The trolley had its sides raised up. The Claimant removed the drip bag from the drip stand attached to the trolley, slid down the bed to get off of the trolley and then walked away. He found his way through several sets of doors and down a corridor until eventually he reached a door which has been referred to during the trial as “door 1”. Behind this was a locker for storing lost property and, more importantly, a flight of stairs leading up to a door going past Victoria Ward and then further flights of stairs leading up to another door (“door 2”) and out onto a flat roof. On the far side of the flat roof was a door (“door 3”) leading to Marlborough Ward which was a general medical ward.[18]It is necessary to describe the situation on the flat roof. This is relatively high up from ground level, and on one side affords a view of a cricket ground from where, in the summer, it is possible to watch the cricket. On the other side, there is a courtyard which used to be a car park for the consultants. Originally, there was an external fire escape leading down to the consultants’ car park. However, in 2003 the internal fire escape was constructed leading down to the emergency department and it was therefore this internal fire escape which formed the flight of stairs up which the Claimant went to gain access to the flat roof. On both sides of the roof, there is fencing 1.4m high and, for the most part, the fencing bends inwards from halfway up to prevent anyone from climbing onto it and over it. It general, it may be assumed that this was an effective safety measure. It appears that the flat roof was used by staff (and also, sometimes, patients) from Marlborough Ward as an area to take the sun or spend breaks during the summer and also, contrary to hospital policy, for smoking breaks. To this end, some benches and plastic chairs had been taken out and put on the flat roof. Although it is a matter of conjecture, it appears to be a reasonable assumption, and is my finding, that the Claimant used the furniture to climb up and over the fencing and he then fell into the courtyard below. The position where the Claimant was eventually found was directly below the position where the chairs were stacked on the bench.[19]Mr West, the paramedic, was the first to notice that the Claimant was missing. In his statement made for the purposes of an internal investigation (see paragraph 22 et seq below), Mr West said that he noticed that bed 13 was vacant but “the patient’s belongings were still by the bed”. He alerted his colleague Jason Hall and the attending nurse (Nurse Thompson) and a search was initiated for the patient. He said:
“We looked in the toilets and around the department and outside but couldn’t find him. At this point Jason told me that during the handover the patient asked to go up a level. The nurse had been there and they had questioned if he was going hypoglycaemic again. So I went out of the department to the nearest stairs and found his glucose bag and giving set half way up to the first level. I alerted two ED [emergency department] staff and we went to explore together, finding it led to an open roof on the third floor leading to a ward on the other side. I asked the nurses in this ward who said they hadn’t seen anything. We also had a look over the side of the roof and couldn’t see anything but didn’t get a good look because of a railing that we would have to lean over. We went back downstairs and reported our findings and the hospital staff alerted security. Prior to leaving the hospital, I decided to have one final look and lean over the railings and put my own mind at rest. Jason followed me up and when we leaned over we saw him lying in a courtyard below. It had been apparent that he had jumped off the roof. We immediately alerted the hospital staff which made their way to the patient. A SWAST crew assisted. Patient was conscious, requesting that we leave him alone and requesting pain relief. Ambulance crews and hospital staff endeavoured to immobilise patient with scoop and manual support of neck. Patient was taken in a stretcher back into the main ED where hospital crews attended to his needs.”
This account was confirmed by Mr West in his witness statement for the trial and in his evidence to me.[20]Another witness was Ruth Ebdon, a senior sister who was working in the Minor Accidents Unit adjacent to the Emergency Department. She went on a half hour break at 9.50pm and was in the staff room in the ground floor, which leads out into the courtyard. She was making some telephone calls from her mobile phone but in between two such calls, she says that she heard a noise like “a door or window slamming, through the part open door of the staff room” which was a door leading into the courtyard. Putting things together, she later appreciated that what she had in fact heard was almost certainly the sound of the Claimant hitting the ground in the courtyard. The importance of this is that it helps to time the accident fairly accurately. From her mobile telephone, Sister Ebdon was able to say that the incident occurred between phone calls at 22.12 and 22.14 and therefore it would appear that the accident occurred at about 22.13. As the handover was signed at 22.10, it seems that the accident occurred only about 3 minutes later. In his evidence to me, Mr Brian Gubb, the Defendant’s Head of Estates Department, said that he walked from bed 13 to the roof space together with Nicholas Reed (who was Head of Security and Safety at the time) and it took them 3 to 4 minutes to get there at a general walking pace. If, as I find (see paragraph 47 below), the Claimant was anxious to get out of the hospital as quickly as he could, he probably hurried down the corridors and up the stairs and that is consistent with Sr Ebdon’s evidence that the accident occurred at 22.13. The Claimant probably paused on the stairs to disengage the giving set from the cannula in his arm, but this would have taken no more than a few seconds.[21]In the accident, the Claimant suffered a severe traumatic brain injury and multiple fractures including fractures to his lower limbs, sternum, ribs, lumbar spine and left wrist. This has required extensive treatment and neuro- rehabilitation and he remains an in-patient at Park House Neurological Rehabilitation Centre, Redford. He has been left with profound problems with all aspects of cognitive functioning affecting memory and executive function, and dyspraxia. He is no longer able to care for himself or live independently and he is dependant on others for care and assistance with all activities of daily living including personal hygiene and dressing, cooking, cleaning and the taking of medication. THE ROOT CAUSE ANALYSIS INVESTIGATION[22]Following this accident, the hospital commenced an investigation which was carried out by Alex Massey, the Operational Support Manger. He reported in July 2011 in a document entitled “Root Cause Analysis Investigation Report”. In the course of his investigation, Mr Massey interviewed all the hospital staff involved at the time. This means that there are records of interviews carried out by Mr Massey recording the recollection of those witnesses at a time when the events were still relatively fresh in their minds. Sister Lindsey Holt[23]Sister Holt was the shift co-ordinator of the emergency department on the night in question. She said, among other things:
“Mr James Spearman (JS) was brought in by ambulance at 22.04. The ambulance crew handed over to LH: JS had been found in a hypoglycaemic coma, now corrected by IV glucose, which was still in situ. JS was sitting up on the trolley, awake but not speaking. He seemed a little confused. Otherwise unremarkable.”
In answer to the question “was there any reason to suspect that this patient would abscond?” she replied:
“No, there was no evidence of previous emotional or mental health problems at that time.”
Senior Sister Siobhan Evans[24]Sister Evans started her shift at 21.15 and was working in the resuscitation/high care unit. She said:
“Mr Spearman arrived in Resus at about 22.50 (timed by a contemporaneous entry in the CD log book at 22.55). His cannula was still taped to his arm but no longer in the vein. Mr Spearman said he wanted “painkillers to kill him”
. SE replied that he could have “analgesics” rather than “painkillers”. Sister Evans told Mr Massey that she later met Mr Spearman’s brother (Andrew) and asked him whether there was any indication that Mr Spearman’s hypoglycemia had been caused by a deliberate overdose of insulin, but he thought not though he did add that Mr Spearman does not like hospitals. Staff Nurse Kelly Hinds[25]Staff Nurse Hinds was working in the Emergency Department on the night in question and was the first nurse to attend Mr Spearman at ground level when he was found. Mr Massey records her as saying:
“KH began to work with ambulance crews to assess the patient, and was quickly joined by other clinical staff from ED. KH remembers Mr Spearman saying that he wanted to die at that time.”
Andy House[26]Mr House was Head of Estates at the hospital. He had conducted an inspection of the locus at 9am on 6 May 2011. He had noted that door 1 (actually door 166 in the hospital’s classification) ie the door from the Emergency Department to the internal fire escape, was closed but not locked:
“the closing bar did not engage easily, possibly because of wear and tear.”
Articles were stored behind the door to the left of the staircase in an unlocked cabinet. Mr House, together with others, had ascended the staircase and entered the flat roof via door 2. Mr Massey recorded:
“On the roof walkway AH noted some heavy wooden benches and on one of these, one or more chairs had been arranged in a manner that would have facilitated climbing over the safety fence. However, AH judged that the safety fence could have been climbed anyway. There was evidence that somebody had been smoking on the roof walkway.”
Mr Massey asked Mr House for his understanding of the status of the roof walkway. He recorded:
“There was no rule limiting the use of the roof walkway, to AH’s knowledge, or of any prohibition of its use in normal times. AM asked whether the recent refurbishment of Marlborough Ward had included any guidance on use of the roof walkways. AH did not believe that it had. AH reported that following this incident, the door at the bottom of the internal escape staircase [door 166] had been fitted with a magnetic closure which restricts access from the ED corridor to key staff and that a new magnetic locking device has been fitted to the fire escape door on Marlborough Ward.”
Mr House was asked by Mr Massey for his views on reflections/learning from the incident and Mr House suggested that consideration be given to: • Better training re:use of fire exits • Better reporting of faults on doors • Enforcement of Trust’s no smoking policy • Periodical ward security rounds. John Dunn[27]Mr Dunn is Head of Health and Safety at the hospital. Mr Dunn essentially confirmed what Mr House had said to Mr Massey. Mr Dunn was part of the delegation which inspected the locus on the morning of 6 May 2011 and he too had noticed the wooden bench with the three plastic chairs. He said that two of the chairs had been stacked and placed on the wooden bench and Mr Dunn inferred that the patient had used this furniture to climb over the fence. Mr Dunn also noted that it would have been possible to breach the fence at a point where the upright and vertical fence met the curved fence and where there was a gap. Mr Massey recorded:
“JD observed that at whichever point the patient accessed the wall and the edge of the roof walkway, he would have had to have been focused and determined to climb the fence as it required considerable effort and agility.”
Mr Dunn told Mr Massey that the following actions had been undertaken with immediate effect : • All furniture removed from this roof walkway by the Estates and Facilities Department. • The fire doors adjacent to the emergency department were closed and arrangements were made by the Estates and Facilities Department to have these doors fitted with a magna lock and a buzzer which would sound if these doors were opened and left opened. Moreover, this magna lock only allowed these doors to be opened by someone on the stairwell of the fire exit or would be opened automatically if the fire alarm was sounded. This has since been completed. • Later that day JD fixed notices to these fire doors on the ground floor stating that the doors should be kept closed and if they were found to be open then security should be contacted.[28]Mr Massey also recorded as follows:
“JD added that he had started a risk assessment about preventing access by a patient to this fire exit and the roof walkway. He added that as part of this risk assessment a review of access of all high areas where a patient could access and throw themselves off would be carried out. This risk assessment would also have to consider the client group and level of supervision.”
[29]Other witnesses interviewed by Mr Massey confirmed that, prior to Mr Spearman’s accident, door 1 was usually closed, but had no self-closing device and could not be locked and was sometimes left ajar. None of the staff in the emergency department had ever actually been up the staircase to the flat roof before Mr Spearman’s accident. However, sometimes physiotherapists had used the staircase leading from door 1 to carry out patient “stair assessments”.[30]Mr Massey’s RCA report identified the furniture on the flat roof as a “contributory factor” which made it easier for the patient to scale the safety barrier. There was no risk assessment which had addressed the subject of furniture on the roof walkway. A further contributory factor identified was that “the risks associated with open access to a roof space had not been identified and assessed.” Mr Massey reported:
“Section 6.3 of the Trust’s health and safety policy identifies the need for an organisational exercise to identify and evaluate the health and safety risks that may be encountered and the implementation of risk controlled precautions which includes organisation-wide premise adaptations, to reduce the likelihood of falls from height and enable managers to locally put in place effective risk control measures. There was no evidence of a risk assessment or specific guidance on management of access relating to the internal fire escape staircase or to the roof walkway. The roof walkway had been designed as a promenade area for patients and staff. When the ward patient type was altered with the move to an acute medicine ward to the location access to the roof walkway was not reassessed. A risk assessment for access from the ground floor to the roof space, dated 2002, relates to the open (cast iron) fire escape staircase. Redesign of the emergency department in 2003 replaced this staircase with an internal one rendering the earlier risk assessment obsolete. Although the emergency department is frequently attended by patients with mental health problems, including those with known as at risk of self harm, the risk of absconding and accessing the internal fire escape staircase has not been identified and addressed.”
[31]Mr Massey identified the root cause of the accident as “a patient intent on leaving the department and possibly inflicting self harm, was able to access an internal fire escape staircase leading to a roof area.” He made the following relevant recommendations: 1) The door connecting the internal fire escape with the ED corridor (door 1) should be secured by a magnetic closure allowing free access from the stair side only, and be fitted with an audible alarm sounding when and whilst open. 2) All furniture should be removed from roof walkways and fire escape routes. 3) The fire escape door from the medical ward to the roof walkway (door 3) should be upgraded to a full magnetic fire door closure with an audible alarm sounding when and whilst open. 4) No storage of any kind should be permitted in any part of the internal fire escape connecting door 1 with door 2. … 6) The Trust should review the status of all flat rooftop spaces and fires escape staircases accessible by patients and/or staff, including those originally designed as balconies or walkways and, complete a risk assessment in relation to access to these areas. Risks identified should be managed in line with the Trust Strategic Framework for risk management. THE EXPERT EVIDENCE[32]I heard from four experts in all, two nursing experts and two health and safety experts. The experts held joint discussions and produced joint reports.[33]The nursing experts agreed that the reason that the Claimant had been taken to hospital was because of the concern of the paramedics that he remained confused despite normalisation of his blood glucose, that the ambulance reports documented the fact that the Claimant had remained confused during the journey to the hospital and that his Glasgow coma score at 21.58, two minutes before his arrival in the Emergency Department, was 10 out of 15. They agreed that at the time the Claimant left his cubicle (that is at about 22.10) his Glasgow Coma Score was probably around 13 made up of verbal 3 (inappropriate responses, words discernible), motor response 6 (obeys commands for movement) and eyes 4 (eyes open spontaneously). They disagreed as to how confused Mr Spearman was at about 22.10, Ms Knott relying upon the fact that Mr Spearman unhooked his IV infusion from the drip stand and walked away with it as being was evidence that he was not particularly confused at that time.[34]In relation to questions about hospital safety, these experts agreed that emergency departments often see patients who are confused, mentally unwell, under the influence of alcohol or drugs, lacking in awareness of danger from their own conditions, behaviour or environment, and impaired ability to process risk, who are at risk of self-harm or who are otherwise vulnerable and at risk of harm. They further agreed that in 2011, emergency departments needed to be “reasonably safe for their range of patients, and measures should have been in place to reduce the risk of harm to patients from the design and state of the premises”.[35]In giving evidence, Miss Redgewell, for the Claimant was asked, when giving evidence in chief, about her views as to whether Mr Spearman was confused when he left cubicle 13. In particular, she was asked whether the unhooking of the IV infusion bag and the disconnection of the giving-bag from the cannula were evidence of lack of confusion. She said:
“Despite those actions, it does not mean he wasn’t confused. Even demented people can function and retain dexterity and ability.”
She did not think that it would be particularly difficult to disconnect the cannula from the tube. It was put to her that there was evidence of suicidal intent on Mr Spearman’s part but she pointed out that, if he had wanted to harm himself, Mr Spearman could easily have done so by, for example, taking an overdose of insulin.[36]In relation to risk, Miss Redgewell was asked by Mr Hopkins QC how risks are managed. She said:
“By making areas of Accident and Emergency inaccessible – then we know patients are safe there. In hospitals there are numerous risk assessments of different areas including Accident and Emergency. I would think that they would take into consideration the types of patients coming into A & E.”
When asked how common it is to restrict areas to staff only, Miss Redgewell said that many areas are so restricted. She pointed out that lots of hospital areas are locked, for example paediatric wards and drugs cupboards.[37]In cross examination, Miss Redgewell conceded that she has a strong view about patients being on roofs, probably deriving from her own experience of having someone deliberately throw themselves off a roof. She took the view that, if there was no need for them to be there, then patients should not be there. Statements taken by Mr Massey for the purposes of the RCA Investigation Report which showed that access to the roof was allowed as a “promenade area” were put to her. She said “I would allow above ground level, but not on a roof. I wouldn’t allow a patient on that roof in any circumstances I can think of.” She said that this was not only because of her previous experience with a suicide but also because some people who are confused would not be safe. She said she would prohibit any patient from being on the roof on their own, ie unaccompanied.[38]Miss Knott for the Defendant, agreed that Mr Spearman had arrived at the Emergency Department with a reduced level of consciousness and that he was therefore, objectively, a vulnerable patient. She acknowledged that Mr Spearman’s remark to the paramedic about going up a level made no sense and was some evidence of continuing confusion. However, she maintained that he was not particularly confused by reference to matters such as his ability to get off the trolley, by removing the IV infusion bag from the drip stand and carrying it a distance and then disconnecting the giving-set from the cannula in his arm. She explained how a confused patient would be more likely to forget he had the cannula in situ and would walk off so that the cannula came out, leaving a trail of blood. Miss Knott agreed with Mr Hopkins QC that the Claimant had no history of mental illness or depression, that it may not be possible to have 1:1 supervision of patients at all times and that, to make vulnerable patients reasonably safe, it is necessary to have additional safeguards put in place. However, she pointed out that accident and emergency departments are not secure areas: people come and go all the time. She accepted that a hospital is a public building which needs to be safe for staff, patients and visitors. She agreed that there is a need to reduce the risk of harm from the design and state of the premises including harm to vulnerable patients. She agreed that if, as a nurse, she thought that there were areas which were potentially unsafe for patients, she would have a duty to point this out. She agreed that you need to look at the lowest common denominator in making a building safe. She said that if she took a confused patient to a roof, she would not leave him without assessing the risk of harm for that individual patient. She said “If an area is normally not accessible then I can assess for a particular individual. I will not let them up there if not a public area.” THE HEALTH AND SAFETY EXPERTS[39]Mr Martin Marmoy-Haynes, for the Claimant, was shown the Defendant’s risk assessment from 2002 in relation to the external fire escape and he agreed that the risks had been properly identified in that document. He agreed that the internal staircase is much safer but he said that, for him, the question remained as to “who can get into that stairwell and who could get access to the roof.” He said that he and Mr Hill agreed that there should be risk assessments for the Emergency Department which should be done by a person with the correct competence.[40]In cross-examination, Lord Faulks QC taxed Mr Marmoy-Hayneswith the opinion he had expressed in his report that any employer who makes changes following an accident such as enhancing door security or removing furniture from a roof is fully aware that a failure occurred. In cross-examination he stood by that assertion, saying that it was true in 99% of cases. In my judgment this was unfortunate and does not accord with the law (see paragraph 63 below). In his report, Mr Marmoy-Haynes had commented on the report of Miss Redgewell, agreeing with many of Miss Redgewell’s statements and conclusions including that “no patient even of sound mind should be allowed to access a flat roof space within a hospital environment”. In cross-examination Mr Marmoy-Haynes acknowledged that “he had lacked context there”. In his report, Mr Marmoy-Haynes said that when he is asked to carry out a workplace inspection or audit he initially establishes what hazards are present and then uses the 1992 Workplace Health and Safety Welfare Regulations to devise suitable questions against which to carry out the audit. He said that where there is any risk of a failing, he asks nine questions which he set out in his report. As it turned out, in respect of the fencing on the roof, all those questions would, upon a risk assessment, have been answered favourably to the Defendant and therefore such a risk assessment would have passed the fencing as safe and suitable. He referred to the HSE document “Falls from windows or balconies in health and social care” as setting a broad brush approach for management of risk.[41]Mr Andrew Hill gave evidence on behalf of the Defendant and he accepted that hospital premises have to be reasonably safe for a range of people visiting them. He also accepted that this encompassed making A & E departments and their environs reasonably safe for vulnerable patients. He agreed that a staff operated lock on door 1 could have been easily and cheaply installed. Asked whether he agreed that vulnerable people should not be allowed onto a flat roof space unaccompanied, he answered that it is necessary to look at the patient in question and ask:
“Is it right and proper to allow that patient onto the roof space unaccompanied?”
Mr Hopkins QC asked Mr Hill if he accepted that the lock which was previously on door 1 from the Emergency Department to the staircase had probably been placed there to restrict access to the flat roof. Mr Hill agreed that the lock had that potential and, further, he agreed that the curve on the fencing on the roof was probably there for safety purposes to make it more difficult to climb over. THE ISSUES[42]The issues arising for determination in this case are as follows: 1) What exactly happened. In particular, whether what occurred when the Claimant went over the barrier on the flat roof and fell to the court yard was a deliberate act of self-harm (i.e. a suicide attempt) or an accident in circumstances where the Claimant was confused and unaware of the risks associated with his actions. 2) Whether, at the time of the accident, the Claimant was a trespasser or a visitor for the purposes of the Occupiers Liability Acts 1957 and 1984 3) What was the Defendant’s duty in law to the Claimant? 4) Was the Defendant in breach of duty towards the Claimant? 5) Was this accident reasonably foreseeable? 6) If the Defendant was in breach of duty, whether such breach of duty was causative of the injury. 7) If primary liability is established, whether the Claimant was contributorily negligent. Issue 1: What happened[43]What prompted the Claimant to go over the barrier on the flat roof and fall onto the courtyard below? In particular, was this a deliberate act of self-harm (ie a suicide attempt) or was it an accident in circumstances where the Claimant was confused and unaware of the risks associated with his actions?[44]It is the Defendant’s case that this was a suicide attempt by the Claimant and/or was a deliberate series of actions culminating in his jumping off the roof. If the Defendant is correct, then this has implications for causation purposes. Thus, it is the Defendant’s case that if the Claimant was intent on jumping from the flat roof, then he would have found a way to get over the barrier in any event, even if the furniture had not been there. Thus, even if it was a breach of duty for the Defendant to have left the furniture on the flat roof (as to which see issue 4 below), it is the Defendant’s case that this is of no causative significance because, even if the furniture had not been there, the Claimant still would have got over the barrier.[45]There is certainly some evidence in support of the suggestion that the Claimant jumped rather than fell. Thus, this appears to have been the impression, or at least assumption, of those who first attended him. Indeed, the conclusions of Mr Massey raised this as at least a possibility in the RCA Investigation Report:
“A patient intent on leaving the department and possibly inflicting self-harm was able to access an internal fire escape staircase leading to a roof area”
. Lord Faulks QC for the Defendant, relied upon the fact that the Claimant had deliberately unhooked the IV infusion bag and carried this with him, indicating some presence of mind on his part, that he had left his belongings behind, that he had then disconnected the giving-set from the cannula whilst on the stairs, an action involving a twisting motion, that he had walked purposefully to the flat roof (as indicated by the short time that it took), and that he had probably stacked the plastic chairs on the bench and used them to climb over the barrier and had then almost immediately gone over the side to the courtyard below. Thus, it seems unlikely, it was submitted, that the Claimant tripped. It was submitted that the evidence does not support the suggestion that the Claimant was wandering about aimlessly and all the evidence suggests that he was not confused but had sufficient presence of mind to take deliberate and thought-through actions.[46]Despite this, in my judgment, on the balance of probabilities, this was not a suicide attempt. First, I refer to the evidence of the Claimant’s family and friends that he had no history of mental illness or of depression or of ever wanting to end his life. On the contrary, he had a certain “joie de vivre” and he lived a happy and fulfilling life within the limits of his disability arising from the road traffic accident. Furthermore, there is evidence that he remained confused: the nursing experts agreed that, at about the time he left the Emergency Department, his Glasgow coma score was not back to normal (15/15) but was probably 13/15. In addition, his remark to one of the paramedics along the lines of wanting to go upstairs or asking “to go up a level” indicated to the paramedics and nursing staff that he remained confused. The fact that the Claimant left his belongings behind is neutral, but could have indicated confusion.[47]For me though the clinching evidence was that of Andrew Spearman (who, I can indicate, was in my judgment a wholly truthful and straightforward witness whose evidence I accept completely) that his brother “would become fixed on the objective he was trying to achieve, and once he decided to do it he became blinkered by doing that task such that he would not appreciate the whole picture” as illustrated by what happened at Heathrow airport. There seems no doubt that the Claimant strongly disliked hospitals. In my judgment, he decided to leave the hospital as quickly as he could and as soon as Nurse Thompson’s “back was turned”. He was able to apply his mind to the mechanics of doing this just as he had been able to apply his mind to the mechanics of cleaning a shotgun. However, he was at the same time confused and not wholly aware of his surrounding circumstances. For some reason, he felt he needed to get upstairs or up a level to get out: hence the remark he was heard to make. Thus he made his way to the nearest stairs and, having ascended the stairs, went through door 2 and found himself on the flat roof. From there, there was no way out of door 3 to Marlborough Ward, which was shut and he must have thought that the only way to get out was by getting over the fence. It was very dark. He may not have appreciated how far the drop was and thought he could jump down: thus if he thought he needed to go up a level to get out, he may have thought that the stairs had taken him up to ground level, or near ground level. Alternatively, standing on the chairs to get over the barrier he may have toppled over and gone over the edge. He was found only about one foot away from the wall and, in my judgment, this is some evidence that he probably fell rather than jumped as a jump would probably have taken him further away from the wall. Whether he jumped because he misjudged the distance down or whether he fell, either way I am convinced that he did not intend to harm himself. The remarks he made to Sister Evans and Staff Nurse Hinds were, it seems to me, likely to have reflected the extreme pain he was in by then given the injuries he had sustained in the fall.[48]Although I have not heard any evidence from a neurologist, I cannot ignore the fact that there were two potentially potent matters affecting the Claimant’s brain. First, the brain injury sustained in 1987 which had caused him to act in an unpredictable way on previous occasions, sometimes without regard to his own safety. Secondly, the effect of the hypoglycaemic attack. It is well known that diabetic patients who have hypoglycaemic attacks can behave unpredictably, irrationally and out of character. Whether as a result of either or both of these, it is of no surprise that the Claimant should either have failed to appreciate the danger he was in or that he would have misjudged the situation or simply that, in his intense desire to get out of the hospital, he did not think through the risks he was subjecting himself to. This all argues, in my view strongly, in favour of this being an accident and not a suicide attempt. Issue 2: was the Claimant a “visitor” or a trespasser at the time of the accident?[49]It is the Defendant’s case that, by leaving the Emergency Department and going up the stairs onto the flat roof, the Claimant became a trespasser and that the duty owed to him by the hospital was only the duty imposed by the Occupiers Liability Act 1984. For the Claimant, it is argued that there was dual duty: first, the “common duty of care” owed under the Occupiers Liability Act 1957 on the basis that, at all material times, the Claimant remained a “visitor” for the purposes of the Act and was not a trespasser (or at least, the very earliest time he was a trespasser was when he went over the barrier on the flat roof); secondly, a duty owed at common law by the hospital to its patients which is an enhanced duty which takes into account the fact that some patients will be “vulnerable”, including those that are confused and/or mentally unstable.[50]It was submitted on behalf of the Defendant that the Claimant became a trespasser when he left the Emergency Department and went through door 1 and up the staircase. It is argued that he was no longer in a location in the hospital where he was authorised to be and, as such, was a trespasser. It was further submitted that whether a person is or is not a trespasser is simply a question of objective fact: it is not governed by the state of mind of the person in question. Lord Faulks QC concedes that sometimes the line between being (or remaining) a visitor and being a trespasser is “not bright” and may be made brighter by, for example, putting up an “no entry” notice. However, he submits that such a notice is not required and objectively the staircase was no longer part of the Emergency Department and was therefore no longer an authorised location.[51]In support of his submission, Lord Faulks QC relies upon a number of previous decisions or authorities. The first is Kolasa v Ealing Hospital NH Trust [2015] EWHC 289 (QB), a decision of His Honour Judge Bidder QC, sitting as a Deputy High Court judge. In that case, the Claimant had been assaulted, robbed and rendered unconscious on his way home from work. Before setting off for home he had been drinking with three colleagues and was intoxicated. He was taken to North Ealing Hospital where he was assessed by a triage nurse as not suffering from serious injury and he was asked to wait. He said that he had felt unwell and gone outside where there were ramps for ambulances leading up and down, to and from the Accident and Emergency Department (“A&E”) to the road, A&E being some thirty feet above ground level. There were walls on either side of the ramps. The Claimant was seen to climb onto one of the walls but he fell and sustained injury. At paragraph 41, the learned Judge said this: “41. Before I turn to the legal principles which govern this case and the submissions of learned counsel I should indicate that in this case I am not considering any duty of care which might be argued to have been owed to the Claimant by the Defendant as a patient brought to the hospital in an ambulance. He had voluntarily discharged himself from A&E and, rightly, Particulars of Negligence and/or Breach of Statutory Duty (g) to (j) inclusive were struck out of the Particulars of Claim, leaving this a claim purely under the Occupiers' Liability Acts, to which duties the pleading of negligence adds nothing.[42]I also make the finding of fact that, although when the Claimant was brought to the hospital and was put to wait in A&E he was a visitor to the hospital and was owed the common duty of care under section 2(2) of the 1957 Act, his act of climbing over the wall was not an act covered by his general permission to be on the site as a patient nor was it part of the permission given by the Defendant to patients leaving the site after, or even without, treatment. He was, therefore, no longer an invitee or visitor but a trespasser.[43]To use the famous example of

Lord Justice Scrutton in The Calgarth [1927] P 93 at page 110:

"When you invite a person into your house to use the staircase, you do not invite him to slide down the banisters – you invite him to use the staircase in the ordinary way in which it is used."
[44]Mr. Norris' primary submission to me is that the protection extended both to visitors and to trespassers under the 1957 and 1984 Acts respectively is from danger caused by the state of the premises, an "occupancy duty" rather than a more general obligation to protect the visitor/trespasser from danger he may face while on the premises. That is clear from the discussion of the law at paragraph 12-04 of the current edition of Clerk and Lindsell on Torts. I accept that submission.” "When you invite a person into your house to use the staircase, you do not invite him to slide down the banisters – you invite him to use the staircase in the ordinary way in which it is used."[52]Having thus found that Mr Kolasa was a trespasser for the purposes of the law, the learned Judge found that there was nothing dangerous about the state of the premises where the Claimant fell, the wall being of an adequate safe height. He found that the provision of an additional handrail after a later accident to another patient was “the reaction of a risk adverse Defendant to the circumstances of this particular accident, which involved someone sitting on the part of a first floor perimeter wall an area known to be used for recreational purposes, and, thus falling to his death.” He found that the Defendant had acted on the specific recommendation of health and safety experts but could not have been criticised if they had not erected the rail. He found that, in truth, the accident to Mr Kolasa was nothing to do with the state of the premises and was, instead, the entire fault of the Claimant himself given his state of intoxication.[53]In giving his judgment, His Honour Judge Bidder QC referred to the authority of the Court of Appeal decision in Keown v Coventry Healthcare NHS Trust [2006 1 WLR 953 a further authority upon which Lord Faulks QC relies. There, the 11-year-old Claimant had climbed the underside of an external metal fire escape of an accommodation block and day clinic in the grounds of a hospital owned by the Defendant and fell from a height of about 30 feet, severely injuring himself. There was evidence in that case that the hospital grounds were known as a place where children liked to play. The claim was brought under the 1984 Act on the basis that the fire escape constituted a material danger and allurement to children. The Claimant accepted he appreciated that climbing the underside of the fire escape was dangerous and that he should not be doing it. The Court of Appeal held that – “The threshold requirement posed by section 1(1)(a) of the Occupiers' Liability Act 1984 was not whether there was a risk of suffering injury by reason of the state of the premises, but whether there was a risk of injury by reason of any danger due to the state of the premises; that a fire escape was not inherently dangerous, so that, if a person chose to create danger by climbing it improperly knowing that it was dangerous to do so, any danger was due to such person's activity and not the state of the premises; that, in general, the age of the trespasser was not relevant, but it was a question of fact and degree whether premises which were not dangerous from the point of view of an adult could be dangerous for a child; that the Claimant had been aware not only that there was a risk of falling but also that his actions were dangerous and he should not have been climbing the exterior of the fire escape; and that, accordingly, no risk arose out of the state of the fire escape there being no element of disrepair or structural deficiency” If, therefore, I find that, at the material time, the Claimant was a trespasser and no longer a visitor, this case establishes the test to be applied under the 1984 Act and that the investigation will be concerned with whether the flat roof was dangerous because of, for example, disrepair or structural deficiency.[54]For the Claimant, Mr Hopkins QC argues first that there is no direct evidence that the Claimant was intent upon discharging himself but, even if he had formed an intention to discharge himself, this did not convert him into a trespasser and he remained a lawful visitor on the premises until he left. He uses the example of a patient who, having formed an intention to discharge himself, decides first to use the lavatory or visit a café on the premises. Such a person remains a “visitor” until he leaves the hospital premises. He relies upon the lack of any sign prohibiting access such as to convert the Claimant into a trespasser, whether over door 1 or over door 2, the lack of a sign saying that the staircase was a fire escape only and the lack of any physical barrier such as a functioning lock. He argues that there was nothing to inform the Claimant that he should not pass through door 1 to the staircase or through door 2 to the roof space and nothing to make him a trespasser on the roof space.[55]In support of his argument, Mr Hopkins QC relies upon the case of Gould v McAuliffe [1941] 2 All ER 527. There, the Plaintiff had gone to a public house to meet her husband and while waiting for him had occasion to look for a lavatory. She did not enquire where she could find one but went through a garden at the side of the public house. Some years before there had indeed been a lavatory there and the Plaintiff had used it but it had since been removed. Not finding this lavatory, the Plaintiff passed to the other side of the garden and went through a gate which was open at the time into a yard. She was then immediately attacked and injured by a dog belonging to the licensee of the premises, the Defendant. It was argued on behalf of the Defendant that, in the place where she was attacked the Plaintiff was a trespasser. The Court of Appeal held that the Defendant was an invitee not only when she went into the garden but also when she went through the gate into the yard where she was bitten. Scott LJ stated:
“In the court below it was contended that the Plaintiff became a trespasser when she passed through the gate because the Licensee of the house did not intend the public to use the yard. The gate was not locked, nor was there any notice on it that the yard was private, or that trespassers were forbidden, or that there was a dangerous dog there. Singleton LJ held that the Plaintiff was acting quite reasonably. In my view the facts constitute an invitation by the Defendant to persons on his premises. The Plaintiff was, therefore, an invitee not only to enter the garden, but also to use the gate leading, as she mistakenly thought to a lavatory. In the view of the court that disposes of the whole case.”
Goddard LJ said:
“It has been said that this is a borderline case, but, in my view, it is a very clear one. There was nothing to show that an invitee to this garden ought not to go through the gate in question.”
Discussion[56]Although the case of Gould v McAuliffe was decided before either of the Occupier Liability Acts had been passed and at a time when the law treated trespassers harshly, nevertheless it informs the issue which I need to decide. Firstly, in my judgment whether a person is or is not a trespasser is not solely determined by whether the place where they are is or is not an “authorised” place. A person’s state of mind and intention is an important additional factor. If a patient, who is a lawful visitor to a hospital (whether the Emergency Department or any other department) has finished his or her treatment and is leaving, he or she does not cease to be a visitor in general until they leave the hospital premises. The position may be different if they deliberately enter an area marked “no entry”, or “private” or know that they are entering a part of the hospital where they have no right to be. But if the patient simply makes a mistake and goes the wrong way, it could not possibly be suggested that such a person was now a trespasser. So here, intending to leave the Emergency Department, Mr Spearman, in his confused state of mind, thought (wrongly but honestly) that he needed to go upstairs to get out and, indeed, go over the barrier to get out. His belief meant that he remained a lawful visitor and, in my judgment, he did not become a trespasser at any time material to this case. Just as, for Goddard LJ in Gould’s case, it was determinative that “there was nothing to show that an invitee to this garden ought not to go through the gate in question”, so here, the lack of any notice over door 1 and the lack of any lock on door 1 had the same effect. With respect to His Honour Judge Bidder QC, the suggestion that the mere act of climbing over the wall, not being an act covered by the general permission to be on the site as a patient nor being part of the permission given by the Defendant to patients leaving the site after treatment, was enough to convert the Claimant in that case from being an invitee or visitor to being a trespasser is too simplistic as it fails to take account of the state of mind of the Claimant. I have no doubt that the decision in that case was correct because the Claimant could not rely upon his own self-induced intoxication in asserting that he was doing something which he thought he was authorised to do and the claim never seems to have been argued that way. The present case is wholly different where, as I have found, the Claimant was mentally disturbed and did what he did as a result of a genuine and honest mistake, made in his state of confusion, it being wholly foreseeable that confused and mentally unstable patients would be part of cohort of visitors to the department. Issue 3: What was the nature of the duty owed?[57]Whether a visitor for the purposes of the 1957 Act or a trespasser for the purposes of the 1984 Act, it is argued on behalf of the Defendant that the duty owed is purely statutory and there is no room for a superimposed duty at common law. Reference was made to Section 1 of the Occupiers Liability Act 1957 which provides:
“(1) The rules enacted by the two next following sections shall have effect, in place of the rules of the common law, to regulate the duty which an occupier of premises owes to his visitors in respect of dangers due to the state of the premises or to things done or omitted to be done on them. (2) The rules so enacted shall regulate the nature of the duty imposed by law in consequence of a person’s occupation or control of premises and of any invitation or permission he gives (or is to be treated as giving) to another to enter or use the premises, but they shall not alter the rules of the common law as to the persons on whom a duty is so imposed or to whom it is owed; and accordingly for the purpose of the rules so enacted the persons who are to be treated as an occupier and as his visitors are the same (subject to subsection (4) of this section) as the persons who would at common law be treated as an occupier and as his invitees or licensees.”
Thus, ‘qua’ occupier, in relation to the state of the premises or to things done or omitted to be done on them, the 1957 Act ousts the common law. The duty is that owed under Section 2 as follows:
“(1) An occupier of premises owes the same duty, the “common duty of care”, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise. (2) The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there. (3) The circumstances relevant for the present purpose include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases— (a) an occupier must be prepared for children to be less careful than adults; and (b) an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so.” (a) an occupier must be prepared for children to be less careful than adults; and (b) an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so.”
[58]For the Claimant, Mr Hopkins QC argued that the statutory obligation under the 1957 Act is confined to “occupancy” duties and that those duties may be concurrent with other common law duties such as activity duties. In support, I was referred to Clark and Lindsell on Torts (21st Edition) at paragraphs 12-04 to 12-05 where it is stated: “It could be argued that these words [ie section 1 (1)] are wide enough for the Act to apply to all injuries on land due to the negligence of the occupier, thus erasing the common law distinction. But it now seems clear that this is not the correct interpretation, and the specific reference to the “state of the premises” limits the effect of the Act to occupancy duties”, making reference to a number of cases including Revill v Newberry [1996] QB 567 at 574 etc and Fairchild v Glenhaven Funeral Services Limited [2002] 1 WLR 1052 (in the Court of Appeal). Clerk and Lindsell then continue: “12-05 There is no doubt that liability under the Act (like occupiers liability at common law) may co-exist with the duties owed in some other capacity, for example as a school, hospital authority, employer or event organiser, in such a case the Claimant can rely on whichever cause of action is more advantageous to him. Occupation of premises is a ground of liability and is not a ground of exemption from liability” (quoting from Commissioner for Railways v McDermott [1967] 1 AC 169 at 186)[59]In my judgment, Mr Hopkins QC is correct. In many cases it may make little difference whether the duty is expressed to be that under section 2 of the Occupiers Liability Act 1957 or a common law duty owed by a hospital to patients and other visitors. The reason is that the statute makes it clear that the duty is owed by reference to “all the circumstances of the case” and that those circumstances include the nature of the visitors so that, as specifically stated in the statute, an occupier must be prepared for children to be less careful than adults. So too a hospital must anticipate that patients attending or being brought into the hospital will include vulnerable patients who are confused and mentally unstable and may therefore be expected to act in an unpredictable way. In the course of her evidence the Defendant’s nursing expert, Gillian Knott, conceded, in answer to a question from me, that the duty of the hospital is therefore necessarily governed by the “lowest common denominator” namely the most vulnerable patient who can be expected to be in the hospital.[60]In my judgment, this is not to impose an intolerably high burden on the hospital. Well recognised measures and techniques are in place for the hospital to identify the risks involved for its visitors, including patients, and to take reasonable steps to guard against those risks to ensure that the patients are reasonably safe. This was specifically recognised by the hospital in 2002 when it carried out a risk assessment in relation to the external fire escape leading from the flat roof down to the courtyard which was then a consultants’ car park and ambulance entrance. The risk assessment took into account two incidents when in-patients had gained access to the roof by climbing the fire escape. The risk assessment stated:
“This incident could occur again – we have a large amount of mental health patients who require care coming into A&E”
. The risk level was assessed by reference to two factors: the probable frequency of an incident occurring and the possible severity should an incident occur. The probable frequency was assessed as 3 (occasional occurrence) and the severity level was assessed as 4 (major injury). It seems likely that it was in response at least in part to this risk assessment or an earlier one that the fencing around the perimeter of the flat roof area was erected and the external fire escape was replaced by the internal one. In my judgment, Mr Hopkins QC is correct in submitting that the duty owed by the Defendant to the Claimant as a patient included such steps as were reasonable to keep him reasonably safe while in the hospital (and remaining a lawful visitor) and that this duty extended to supervision and restriction of his activities and movements in the hospital, either by direct nursing supervision or by physical means such as locks on doors.[61]As part of the hospital’s enterprise, it needed to manage the flow of movement of patients around the hospital and that is a duty owed at common law because it encompasses wider duties than simply those relating to the state of the premises. There are many parts of a hospital which it would be positively dangerous for patients to enter or where, by entering, they would be putting other patients at risk and a hospital needs to address these risks in an appropriate way which includes not only the state of the premises but also the management and restriction of patient flow. Because not all patients can be supervised at all times by members of staff, this must, in my judgment, include management of the state of the premises by putting up appropriate notices and locking doors. Although, in fulfilling this duty, the measures taken relate to the state of the premises in the sense that the premises are physically being used to manage the patients, it would be an error to confuse this with the duty owed under the 1957 Act by reference to the “state” of the premises which is a narrower more restricted duty. These are measures taken by hospitals (and other institutions) to fulfil the wider duty owed to those lawfully on the premises. Equally, an employer owes a wider duty to an employee who is on the employer’s premises than the duty owed under the Occupier’s Liability Act 1957, but may, in part, fulfil that duty by measures taken in relation to the state of the premises. Issue 4: Breach of duty[62]In a sense, breach of duty is one of the easier issues for the court to decide. If, as I have decided, the Defendant was under an obligation to carry out a risk assessment in order to identify and assess the risks to patients, and to take reasonable measures to prevent such risks, it did not do so. In my judgment, this duty included identification and assessment of the risk of vulnerable patients getting to the roof space from the Accident and Emergency Department unaccompanied and causing themselves injury. However, no risk assessment was carried out at all. In their joint statement, the Health and Safety experts agreed that the hospital should carry out “a suitable and sufficient risk assessment and it is down to the hospital to decide which department or person should complete it”. Then Mr Hill is recorded as follows:
“Mr Hill considers that there was no reason to prepare a specialist risk assessment in relation to access and egress within/between the emergency department, the stairs between door 1 and door 2 or the roof space. He would however accept that these areas should have been risk assessed as part of the procedures described above.”
In the end, Mr Hill accepted that the roof space, as it presented to the Claimant, Mr Spearman, was unsafe. He said:
“I accept I would not have wanted unaccompanied vulnerable patients on the flat roof space with foothold furniture next to the barrier.”
He accepted that a competent risk assessment should address all these issues. In the joint statement, Mr Hill is recorded as agreeing that:
“The presence of furniture being next to the barrier would increase the likelihood of the barrier being scaled, particularly by those who were very young and/or mentally disturbed. He would accept these categories of people to be supervised accordingly. In his view it is likely to be impracticable to secure furniture to the ground in order to prevent it from being moved.”
Referred to this he agreed with Mr Hopkins QC that either you supervise or if you can’t supervise at all times, a lock is an alternative.[63]It is, of course, true that a Defendant is not to be found to have been in breach of duty merely by reference to the fact that, an accident having occurred, remedial steps are taken to prevent a repeat of the accident. Were this to imply liability, it would potentially have a “chilling effect” on hospitals, employers and a wide range of other bodies in relation to taking steps to make their employees, visitors etc safer if they were thereby thought to be admitting liability. However, equally, the taking of remedial steps may in some cases also be a recognition that there was a lack of safety which had previously gone unobserved: that would be the position where for example, premises were so unsafe that it was “an accident waiting to happen”. In my opinion, any competent Health and Safety advisor, informed that there were confused and mentally unstable patients in the Emergency Department, that there was a door allowing free entry to a staircase leading to a flat roof and that there was furniture on the flat roof allowing a safety barrier to be scaled or surmounted would agree that this was a potentially toxic combination which together meant that the premises were not reasonably safe for those patients.[64]Ms Knott, the Defendant’s expert, agreed that there is a need to look at the needs of vulnerable patients in relation to design and structure: if the premises are safe for vulnerable patients, then they will be safe for non-vulnerable patients. In my judgment the Defendant in this case was in breach of duty in the following respects: 1) In failing to secure door 1 so that it only allowed free access from the stair side and not from the Emergency Department: this would have been a simple and relatively cheap step to take and it was in fact quickly taken after Mr Spearman’s accident; 2) In failing to remove furniture from the roof space and in allowing furniture to be left so as to provide a means of surmounting the barrier relatively easily; 3) In failing to carry out a proper and suitable risk assessment which encompassed and considered the risk to vulnerable patients should they access the flat roof space via the internal fire escape staircase. Just as, in 2002, the hospital had carried out what I consider to have been a suitable and appropriate risk assessment of the external fire escape - a risk assessment which included the risk to vulnerable patients or patients attending accident and emergency with mental health problems - so too a similar risk assessment should have been carried out to the internal staircase, but it never was. Issue 5: Was this accident reasonably foreseeable?[65]It is argued on behalf of the Defendant that it was not reasonably foreseeable that the Claimant would do what he did, namely enter the roof area from the A& E department, get over the barrier and fall to the courtyard below. In this regard, I was told that there had never been an example of any patient doing such a thing before and reliance is placed on the evidence of Mr Gubb, the Defendant’s Head of Estates Department, who said: “12. I do not believe I would have been overly concerned had I been aware that staff were not locking the door but using the area as a short cut as it would not have occurred to me that the roof space would pose any particular hazard given that there is a 1.4 metre fence surrounding it.. …[14]I’ve not been made aware of any similar incidents or patients getting onto that roof space area or that the stairwell was being used for storage or by the physiotherapy team for patient’s use. The question I would ask as Head of Estates had I know about this would be whether there would be an issue of patient’s falling and in this case, given the fencing provided I would not have seen it as a significant risk requiring attention.[15]Obviously, following the incident with Mr Spearman recommendations were carried out to prevent such occurrences happening in the future but it would not have been foreseeable to me that such an accident would have occurred. ”[66]For the Claimant, it is submitted that it was reasonably foreseeable that vulnerable patients might come to harm on the roof space by climbing over the barrier. Reliance is placed upon the curved design of the barrier itself giving rise to the inference that the Defendant had foreseen the risk of patients climbing over the barrier, the design being intended to deter or mitigate this risk.[67]Reliance is also place on The Health and Safety Executive information sheet entitled “Falls from Windows or Balconies in Health and Social Care” which, although first published in August 2012 was acknowledged to represent the recognised standards prior to that date including May 2011 when this accident occurred. Thus, the information sheet was put to the Defendant’s Health and Safety Expert, Mr Hill, by Mr Hopkins QC and he stated:
“I would expect a Health and Safety practitioner to be aware of the information in this guide”
. When Mr Hopkins put that it represented the views generally held as to safety in the years prior to 2011, Mr Hill responded “It didn’t appear out of nowhere”. I took this to be an acceptance by Mr Hill that, although published in 2012, the information sheet represented a reasonable standard at the time of this accident.[68]The information sheet identifies 3 broad categories of falls: accidental falls; falls arising out of a confused mental state; and deliberate self-harm. It goes on to say:
“Many reported accidents involve people in either a temporary or permanent confused mental state, often caused by…reduced mental capacity; mental disorder. …In some cases individuals try to escape from an environment which they perceive to be hostile or use a window believing it to be an exit unaware that they are not at ground level. Other factors may include unfamiliarity with new surroundings (eg short stays at respite care centres), uncomfortable temperatures, broken sleep and medication affects.”
The information sheet obliges the Health Service Provider to carry out a risk assessment in order adequately to manage the risk of falls from windows or balconies by assessing the premises and the service users. It states that where an assessment identifies that individuals are at risk from falls, adequate arrangements should be in place. The risk assessment “should include assessing the risk that furniture or other items may enable them to climb over barriers or access windows which might otherwise be inaccessible.” Suitable controls include restricting access to upper floors. Under the heading “balconies” the information sheet states:
“Where assessment identifies that service users are at risk of falling, then sufficient protection should be provided to prevent them from accessing balconies or climbing over the balcony edge protection. This should take into account furniture or features with footholds which may allow access over the barrier (for example, chairs, tables, plant pots, walls etc). Restricting access to upper floors Where service users are at risk of falling, the care provider must decide whether to apply protective measures throughout the premises, or to ensure that they only have access to safe areas, for example the ground floor.”
Restricting access to upper floors[69]In my judgment, it was clearly reasonably foreseeable that an accident of this kind might happen. First, it was reasonably foreseeable that, without door 1 being locked, patients who were confused might go through that door, up the stairs to the roof space. Indeed, this had been specifically recognised, albeit in relation to the external fire escape, in the risk assessment of 2002. Second, it was reasonably foreseeable that a confused or vulnerable patient on the roof might go over the edge. As Mr Hopkins QC submitted, the erection of the fence was in itself a clear recognition of this risk.[70]Mr Gubb says that whilst the accident might have been reasonably foreseeable had the protective fencing not been there, it was not reasonably foreseeable with the fencing in place. However, he then has to contend with the presence of the furniture. As the information sheet says: an assessment “should take into account furniture or features with footholds which may allow access over the barrier” and chairs are specifically mentioned. The risk assessment needs to include the assessment of the risk that furniture may enable service users to climb over barriers. I do not consider that Mr Gubb was right in suggesting that the erection of the barrier meant that an accident of this kind was not reasonably foreseeable, but, in in any event, once the presence of the furniture is put into the equation, an accident becomes eminently reasonably foreseeable. Issue 5: Causation[71]Had it been my finding that the Defendant was only in breach of duty in relation to the furniture on the roof, then it would have been necessary to decide whether the Claimant would have got over the barrier even if the furniture had not been there. In fact, I would have found that he probably would not have done. He was not a particularly athletic man and, from looking at the pictures of the barrier, it seems to me that it would have been quite substantially difficult for somebody to climb over the barrier, certainly at the point where the Claimant went over where it was curved inwards at the top. However, my finding that door 1 should have been secured makes the issue of causation extremely straight forward. Had that door been secure, Mr Spearman would never have got to the roof space in the first place and the accident would never have occurred. Causation is clearly established. Issue 6: Contributory Negligence[72]Finally, it is submitted on behalf of the Defendant that if I find in favour of primary liability (as I do), then I should find that the Claimant was contributorily negligent. It is pleaded in the Defence that he was at fault in that he: 1) Voluntarily discharged himself from the Emergency Department; 2) Left the Emergency Department without informing staff of this intention; 3) Failed to tell staff that he wanted to commit suicide or self-harm; 4) Climbed over the safety fence surrounding the roof terrace and/or jumped from the roof terrace.[73]In my judgment, the only one of these allegations which could possibly amount to contributory negligence in this case is the fourth. It might be contributorily negligent for a patient to discharge himself from hospital if he thereby deprives himself of treatment or investigation which he needs and thereby sustains harm or additional harm from the lack of treatment or investigation, but that is not this situation. Nor, in my judgment, is it negligent to fail to inform staff of an intention to leave: it may, in certain circumstances, be discourteous, but not negligent. The third allegation fails because I have found that it was not the Claimant’s intention to commit suicide or self-harm, even if that could be an allegation of negligence at all, which I doubt.[74]In relation to the fourth allegation, in my judgment that is negatived by the Claimant’s state of mind, as I have found it to be. Whether as a result of the ongoing effects of the hypoglycaemic attack or the effects of the pre-existing brain injury or a combination of the two, the Claimant did not appreciate the danger he was in, in climbing the fence, just as he had not appreciated the position he was putting himself in when he cleaned his shotgun at Terminal 1 of Heathrow Airport. Just as a young child is not guilty of contributory negligence in running out into a road where the child is so young as not to appreciate the danger of so doing, so too where a person’s state of mind is such that, whether temporarily or permanently, they do not appreciate that they are putting themselves in danger and it cannot be said that they should have so appreciated. Otherwise, that would be to penalise a person for being ill or of unsound mind, and the law does not do that. CONCLUSION[75]In conclusion, I consider that the Defendant owed Mr Spearman a duty pursuant to the Occupiers Liability Act 1957 to take reasonable steps to ensure that the premises were reasonably safe for him as a vulnerable patient who was confused and mentally unstable at the time that he was in the Emergency Department of the hospital. I further consider that the hospital owed Mr Spearman a superimposed duty at common law which encompassed his reasonable safety not merely by reference to the state of the premises but also by reference to the overall operation of the enterprise which included supervision of patients, flow and management of patients and restriction of access to areas where patients did not need to go. These duties complement each other so that whilst, for much of the time, supervision will be adequate, there will also be times when it is not possible for the Defendant to maintain constant supervision of a patient and, at those times, other duties step in to fill the breach by restricting access to dangerous or unauthorised areas and by taking reasonable steps to see that areas to which vulnerable patients might gain access are reasonably safe. The best way to address these duties is through risk assessments, there being well established risk assessment tools which assist a hospital in identifying and assessing appropriate risks and taking reasonable steps to mitigate or avoid them. In breach of duty, the Defendant failed to carry out a suitable risk assessment with a result that there was the potential for an unsafe environment to arise. Then, like the lining up of the holes in a swiss cheese, the different points at which the accident would or could have been prevented failed. Thus, first, there was a short period when the patient was left on his own. This was not a breach of duty but was the first hole in the swiss cheese. Then, the patient found his way through door 1 which was not secured. Then he found his way through door 2, equally unsecured and onto the roof. Then there was furniture on the roof which enabled him to surmount or scale the barrier. Finally, the Claimant’s confused state of mind meant that he failed to see or recognise the danger that he was in but, fixated upon the need to leave the premises, got over the barrier and fell to the courtyard below sustaining the injuries which he did. This was an accident which could and should have been prevented and there shall be judgment for the Claimant accordingly.

Cited in 2 later judgments