WHEN RESPONSIBILITIES TRUMP RIGHTS
(GEARY V J.D. WETHERSPOON PLC (2011) EWHC 1506 (QB))
On the evening of 29th March 2007, Ruth Geary made a decision that changed
her life irredeemably. She elected to slide down the banisters of The Union Club
in Newcastle “à la Mary Poppins.” The episode had a less than fairytale ending.
Mrs Geary went straight over the rail and fell 3.5 metres to the marble floor
below. She is now tetraplegic. In a full and extremely well crafted judgement,
having reviewed the law on this topical area, Coulson J found that the Claimant’s
tragic accident was of her own making. He held that she had voluntarily
assumed the obvious risk of sustaining the serious injury which eventuated.
Neither statute nor precedent assisted her. In all the circumstances, there was
no reason to find it fair, just and reasonable to impose a duty of care on the
Defendant, still less one that they had breached. As had Messrs Tomlinson,
Keown, Evans and Poppleton before her, Mrs Geary found the court sympathetic
to the consequences of what had happened but unwilling to hold a third party to
account. Undoubtedly, the decision was right in law on the facts of the case. But
what about the principle involved?
The Union Club was transformed from what was no doubt a rather “tired” but
formerly elegant building to a public house in 1998. It possessed an original
stone staircase of the impressive, sweeping, variety so common in the Victorian
era, which splits into two at the half-landing point. The handrails were lower than
acceptable under modern day Building Regulations. Indeed, the new owners
and those advising them were well aware of the potential for mishap and mischief
the staircase represented. They clearly thought the odd, exuberant, and possibly
intoxicated customer or two would find the allurement of behaving in adolescent
fashion by taking a ride down their banister rail too much to resist. They sought
written confirmation from the local authority that there had been a waiver of what
would otherwise have been required remedial action. All this arose because
English Heritage objected vehemently to any permanent alteration to the original
features of the building, which had listed status. So, although the Defendant was
clearly worried and the local authority seemingly reluctant to waive the
regulations, waived they were.
Between its opening in 1998 and the Claimant’s accident in 2007, there had been
numerous incidents when visitors to The Union Club took it into their heads to
slide down the banisters. On more than one occasion, nasty injury resulted. The
drop from the banister was significant and the floor below was solid and
uncarpeted. The judge described the risk as “foreseeable and foreseen.” Of
course, such fact alone cannot establish a duty of care. That said, it is perhaps a
helpful step on the way because the Defendant knew that the theoretical risk had
become a practical reality. On one view, the low banisters were an obvious
allurement, even to the non-drunk adult. It may be that from time to time most of
us hear some siren call inviting impulsive or unwise behaviour. Even the sober
minded may be tempted to do what they would not normally do if carried away in
the moment by something that appears fairly harmless and fun loving until it goes
wrong. Granted, the majority manage to suppress the urge but there is a
significant minority who may throw caution to the wind every so often and flirt
with mild misbehaviour in that “I don’t know what came over me” sort of way;
even if only for as long as it takes to reach the bottom of the stairs.
And if
people are going to do that, they will surely do it in the very sort of situation that
got the better of Mrs Geary: in a club or public house, with a relaxed atmosphere,
amongst friends and with the encouragement of a drink or two; which the owners
of licensed premises are only too willing to sell to enhance a good night out and
secure repeat business.
The Claimant was candid in her acceptance of self-responsibility. Indeed, it is
difficult to see how the judge could have found for her after she told him that she
“absolutely” knew she was taking a risk and had made a rational decision to do
so. Whether that was her frame of mind in the moment or one reached with the
benefit of hindsight, embarrassment and remorse may be debatable, but it was
her evidence nevertheless. Highlighting the absence of any reported case in
which a Claimant had accepted such a risk and won the day, Coulson J reached
the only conclusion he could reach. He considered the question of a possible
assumption of responsibility for the incident by the Defendant but he could find
none. The Caparo Industries route was similarly barren for the Claimant
because the judge found, consistently with his view on lack of assumption of
responsibility, there was insufficient proximity of relationship between the
Claimant and the Defendant to found a duty of care.
At the eleventh hour, the Claimant understandably changed tack and added to
her cause by suggesting that the banister was defective, the defect being its
lower than usual height. The judge rejected that submission as unsustainable on
the facts. He added that, in any event, even had the banister been of normal
height the Claimant would probably still have slid down it because it was its
design rather than its height that gave birth to the idea in the first place. He
clearly felt that, come what may, Mrs Geary would have had her Mary Poppins
moment – apparently, the banisters bore a striking resemblance to those down
which Julie Andrews had slid in one of the Claimant and her daughters’ favourite
films.
However, might not the design and height of such banisters, coupled with the
significant drop on the other side to a solid floor below, be sufficient to establish
that premises are not reasonably safe, particularly when visitors are known to
use them for fun, having taken alcohol? That would not alter the fact that a
voluntary assumption of risk might well defeat a claim under the Occupiers
Liability Acts of 1957 and 1984 but that would not be an end to it. In Ward v The
Ritz Hotel ((1992) PIQR 315), the Court of Appeal held that a relevant British
Standard may be of importance because it represents the consensus of
professional opinion and practical experience as to sensible safety precautions.
There, the Defendant had raised a floor level so as to reduce the height of a
balustrade, over which the Claimant then fell when he fainted. Their Lordships
decided (Lloyd LJ dissenting) that it was foreseeable that a lawful visitor might
stand where Mr Ward stood and, if he fell, was likely to suffer serious injury.
Indeed, they suggested that the Defendant should have taken account of the fact
that visitors standing close to the balustrade might be drunk and topple over it.
Of course, the critical difference in Ward was that the Claimant was using the
premises for the purpose for which he had been invited whereas nobody invited
Mrs Geary to slide down the banister. Coulson J quoted Scrutton LJ in The
Calgarth ((1927) P. 93) to make that very point:
“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.”
But Mrs Geary was not in somebody’s house, she was in a public house
owned by a major player in the leisure industry. True enough, she was not
using the staircase “in the ordinary way” but she was using it in a way in which
it had been used by other customers before her. Some of them had fallen off
and sustained injury. Perhaps it was only a matter of time before the injury
sustained by a foolhardy customer was bound to be the sort of catastrophic
one that befell the Claimant. Surely it is right that in some circumstances even
obvious dangers should be guarded against, particularly if the cost of doing so
is modest compared to the consequences if the risk becomes reality? Would
any real damage be done, either to society in general or the interests of justice
in particular, if a Defendant were expected to take a cheap and simple step to
prevent serious harm to a paying customer from a situation they themselves
considered potentially hazardous? Of course, to impose too high a burden
upon potential Defendants may be counter-productive and contrary to the good
of society as a whole. We are all entitled to assume that our fellow citizens will
exercise reasonable judgement when it comes to looking after themselves and
to accept responsibility when that judgement is found wanting. However, few
rules are absolute and whether or not to impose a duty of care involves
balancing rights and responsibilities in any given set of circumstances. Would
it be wrong in principle to expect a Defendant whose business is the provision
of leisure and fun and whose profits flow from the sale of alcohol to guard
against a foreseeable, and foreseen risk of really serious harm; even if an act
such as sliding down a banister is foolish and voluntarily undertaken? In the
case of Lips v Older ((2004) EWHC 1686 (QB)) Mackay J found that premises
owned and run by professional landlords were not reasonably safe for visitors
because a dwarf wall, from which the intoxicated Claimant fell, had a drop of
nine feet on its far side. Relevant to his Lordship’s consideration was the fact
that the landlords knew that students, sometimes drunk, used the premises
and they knew the Claimant, one of their tenants, had alcohol problems; and
those people were all prone to sitting on the wall because it was inviting to do
so. Although the facts of Lips are distinguishable from Geary, they are not so
very far away either. Mr Lips toppled off the wall, upon which he had chosen to
sit knowing of the dangerous drop on the other side, when he had taken drink
and had a heavy bag of tools strapped to his back in a rucksack!
There is undoubtedly a duty on a Defendant to ensure customers of a nightclub
(and, I would say, a public house) are reasonably safe in using the premises
(see Everett v Comojo [2011] EWCA Civ. 13.) In Everett, to which Coulson
J’s attention was drawn, Smith LJ said:
“I consider that the relationship between the management of the
nightclub and its guests is of sufficient proximity to justify the
existence of a duty of care. The management is in control of
the premises. It can regulate who enters, who is refused entry
and who is to be removed after entry. The guest comes to the
nightclub to relax and enjoy himself and for that prospect relies
on the competence and prudence of its management. He
expects and is entitled to expect that there will be no violence
and that he will not be unsafe. Further the management of the
nightclub is in business and wants the guest to come and spend
his money; there is an economic relationship between the two.
In my judgment those factors demonstrate sufficient
proximity.”
Everett concerned the use of violence by one guest to another and it was on that
basis that Coulson J distinguished it. But Smith LJ did not necessarily say that
such duty was limited only to prevention of harm caused in that way. Proximity
exists because of the particular relationship concerned. “Control of the premises”
goes beyond who you allow in or choose to eject. It must extend to what you
allow guests to do once in and what you prevent them from doing before they
have the chance! The prudence of management might, for example, encompass
a decision to prevent foolish acts upon a known hazard by a minority of your
customers whom you believe will behave in just that way unless you remove the
temptation. The cost of the preventive measure balanced against the risk
involved will always be relevant. I appreciate that assertion may not find favour
as the law currently stands but I see nothing wrong with it in principle.
Say, for example, that Mrs Geary had fallen upon and seriously injured a visitor
standing directly below her in the well of the pub. Would the Defendant have
escaped liability to that third party by saying: “If our guests want to behave in
foreseeably silly ways on our alluring banisters, that is up to them?” I doubt it.
The distinction, then, lies in the fact that Mrs Geary, as she candidly said,
“absolutely” decided to take the risk that she did. As Coulson J implied in his
judgement, it will not always be a complete answer on liability to point to a
voluntary assumption of risk. In Mrs Geary’s case, the factual findings,
particularly the finding that even had the banister been of normal height she
would have slid down it, made victory nigh on impossible. On only marginally
different facts, the result might not be quite so inevitable.
Six months after Mrs Geary’s accident, another person – this time a man – tried
exactly the same thing with exactly the same result, save that his injury was less
serious. After that, the defendant carried out some alterations to the banisters.
This principally consisted of winding a long length of thick rope around the ornate
supports of the staircase, and over the top of the banisters themselves, which
meant that it became impossible to slide down them. It appears that, since those
works were carried out, no further attempts have been made to descend them
“by rail.” The works themselves cost less than £300.
If my proposition is correct, that in some circumstances even normally sensible
people need protecting from the odd moment of madness, the proximate
relationship spoken of in Everett might well be enough to require a Defendant to
take a simple and cost effective step to prevent a lifelong and devastating
consequence from a foreseeably hazardous risk; even if that consequence
resulted from a voluntary act. The sanction there is a significant finding of
contribution, not an absence of liability.