Clare v Roderick W P Perry t/a Widemouth Manor Hotel, Court of Appeal, 13 January 2005

Occupier’s Liability – Claimant injuring himself when jumping from wall

The Claimant hurt herself when trying to leave the Defendant’s hotel which she had attended with her partner. They had tried to leave by means of a retaining wall that was next to the road. There was a proper exit nearby. Her partner had successfully climbed form the wall down to the road but the Claimant had not realised that there was a 6 foot drop on the other side. It had been late at night and it was too dark for her to see. As she jumped over the wall she injured herself.

The Trial Judge found for the Claimant on the basis that the Defendant had failed to fence the area off although he made a finding of contributory negligence. The Defendant appealed.

The risk of an accidental fall was a different risk in character to a deliberate act of jumping from a wall.

The occupier did not have a duty to prevent a risk that was different in kind from that which had been identified. See Darby v The National Trust.

The Judge had found that had the Claimant taken steps to prevent an accidental fall those steps would also have prevented the Claimant from deliberately jumping. However, in the light of Derby the Judge’s findings could not be upheld. Moreover an occupier had to have regard to behaviour reasonably expected of a visitor and in this case the Claimant’s conduct had been foolish. Appeal allowed.

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