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Lewis v Six Continents Plc, Court of Appeal, 12 October 2005

6 January 2006
The issues

Occupier’s Liability – Claimant Falling From Hotel Window – Hotel’s Duty Of Care

The facts

On 10th May 2000 the Claimant fell out of a second floor window in a hotel in Letchworth. He was 27 at the time of the accident. He was sharing a twin bedded room with an employee of his father’s business in which he also worked, Mr Bamford.

In respect of the window in question the height from the floor to the base of the opening was 75 cm. There was no limiter on the window which could be fully opened to create an aperture 68.5 cm square. There was relatively little space between the nearest bed and the window. On the night in question the Claimant and Mr Bamford had gone to the restaurant to have an evening meal and had something to drink. They then went to the bar where they had more to drink and ended with some other “lads” on the course to drink in town.

Mr Bamford said he had probably had 5 pints or more that night but he did not know how much the Claimant had had to drink. He indicated that the Claimant showed no signs of being drunk. The Claimant went to bed first at about 10 pm and Mr Bamford at about 11.30 pm. Mr Bamford went to sleep and was awoken by a loud bang. He looked out of the window that was open to see the Claimant lying on the ground below. There was no clear evidence as to what had happened but the most likely explanation was that the Claimant had leant out of the window to get some fresh air or even possibly to be sick. On the evidence the Judge found that he had probably had several pints of beer but was not particularly drunk.

The Claimant relied on the Health and Safety Commissions Workplace, Safety and Welfare approved Code of Practice which provided that the bottom edge of opening windows should normally be at least 800 mm above floor level and also to the Building Regulations 1991 (which did not apply to the hotel but was said to represent good practice) which provided that where there was a danger to fall through a window above ground level a suitable opening limiter should be fitted or a guard provided.

The Judge dismissed the Claimant’s claim. The Claimant appealed to the Court of Appeal

The decision

The Judge had to decide whether in all the circumstances reasonable care had been taken to see that visitors to the Defendant’s hotel were reasonably safe. The Judge had found the duty argued for by the Claimant’s Counsel, namely to adopt safety measures to limit the risk to visitors, was not reasonably practicable and that therefore there had been no breach of a common duty of care. The Claimant had argued that the Judge had not asked the correct question and that he should have asked what the hotel had done about this window in the circumstances of this case was adequate. Even if the Judge had been wrong in his analysis, if the question that the Claimant had said should had been asked, had been asked, the Judge would have reached the same conclusion. The window presented no obvious danger to any adult and no accident had previously occurred. It was not therefore reasonably foreseeable that an adult would lean out of the window in such a way that the occupier should have limited the extent to which the window could open.

Appeal dismissed.

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