Law Bulletin - March 2005

Liability

Falls from walls on holiday

i) Having had a few drinks, Mr Clough fell from a broad wall between two swimming pools, landing in the shallow children’s pool and suffering injuries resulting in tetraplegia.

Although the Judge accepted the lack of non-slip paint on the wall was a breach of duty by the pool owners, and that Mr Clough had fallen, not dived into the pool, he did not accept the lack of paint had materially contributed to the fall.

The risk of accident may have been greater without paint but it was impossible to determine to what extent that was so when water and sun tan oil was always liable to be present and it was as likely the claimant would slip on these or other substances with or without non-slip paint (Fairchild discussed and distinguished).

Moreover, the Package Travel Regulations 1992 Reg 15 and the warranty implied under Reg 6 from the holiday brochure to make safety a “high priority” was not one to provide complete safety.

Clough -v- First Choice Holidays and Flights Ltd QBD, 28 January 2005.

ii) Ms Clare left a hotel at night by hopping over a wall by the road rather than using the designated exit. However there was a six-foot drop on the other side and she was injured. The Judge at first instance found that, had the hotel fenced the wall off to prevent accidental injury as they should have done, then it would have prevented injury from this deliberate act.

But the Court of Appeal said the occupier did not have a duty to prevent a risk different in kind to that identified: Darby -v- National Trust, (2001) EWCA Civ 189, Times Feb 23 2001 applied.

Clare -v- Roderick Perry, CA Civ, 13/1/2005.

Road traffic accident

A mini cab driver argued with four drunk men in his cab. They allegedly attacked him, then got out. He intended to go home. Before doing so he reversed back to where they were standing and drove towards them to scare them. He hit and killed one of them.

The insurance policy covered accidents where the car was used for domestic purposes but not when used for “hire or reward”. The Court of Appeal held, applying Seddon -v- Binnions 1978, that once he had dropped them off the essential character of his drive was to go home, so this was an incidental episode on the journey home, which was a domestic journey and thus covered by insurance.

The Judge said: “The courts should not be astute to interpret any such limitations benevolently in the insurer’s favour.”