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when a claimant must accept the risk of his own actions

25 May 2018
The Court of Appeal decision in Clay v TUI UK Ltd considers where an intervening act is sufficient to break the chain of causation.

Mr Clay and his family were trapped on the second floor balcony of their Tenerife hotel room due to a defective lock on the balcony door. Having unsuccessfully attempted to summon help Mr Clay decided to climb over the balcony balustrade and step across to the balcony of the next room. Unfortunately a cornice he stood upon was decorative and did not support his weight causing him to fall to the ground sustaining a fractured skull.

It was initially held that the act of attempting to climb from one balcony to the next was so unexpected and foolhardy as to constitute a novus actus interveniens and therefore break the chain of causation. The claimant was in no danger on the balcony and had no way of knowing whether the cornice was safe to stand on.

The Court of Appeal agreed - the correct test was to consider whether the sole effective cause of the injury suffered was the intervening act rather than the prior wrongdoing. In doing so it was necessary to weigh "the degree of inconvenience” against the risks taken and on this occasion the claimant’s act was sufficiently unreasonable to eclipse the defect with the lock. As such, liability did not attach to the defendant.

This is an interesting decision, which reinforces the established principle that the actions of a claimant can go beyond the boundaries of contributory negligence and be sufficiently extreme to allow a defendant to escape liability. That is even where there was an initial breach of duty which played a part in the accident occurring.

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