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Public Liability: defendant not liable for fall over banister in nightclub premises

Gough v The Buttermarket
8 - 9 September 2016
Stoke-on-Trent County Court

Sheryl Bignell of DWF acting on behalf of the defendant on instructions from QBE

Lawful visitors who have been expressly invited onto premises can become trespassers if they choose not to use the premises for the way in which they are invited to do so. Sheryl Bignell reports on the successful defence of a claim which highlights the importance of considering the applicability of both the Occupiers’ Liability Act 1957 and the Occupiers’ Liability Act 1984 and also involves consideration of a breach of Building Regulations and the principle of volenti non fit injuria.

Facts

This case has remarkably similar facts to Geary v Wetherspoon in which the claimant suffered injury whilst attempting to slide down the banister in a pub.

The claimant in this case, Mr Gough attended the insured’s nightclub having been expressly invited there to attend the VIP area which was on the third floor at the top of a spiral staircase. His case was that he left the VIP area, and he leant against the banister of the staircase before falling over it down a 24ft drop. He alleged that the cause of his fall was that the banister was dangerously low and he obtained engineering evidence stating that the banister fell below Building Regulations requirements by 65mm.

The defendant’s case however, was that the claimant was sliding down the banister and he was therefore not using the premises in the way in which he was permitted to do so for the purposes of the Occupiers’ Liability Act 1957. This, we contended, made him a trespasser, but it was notable that the claimant had not pleaded the Occupiers’ Liability Act 1984.

There was CCTV footage of the incident which, the defendant submitted, clearly showed that the claimant jumped onto the banister after saying something to his friends, proceeded to slide for a small amount of time with all of his weight on the banister, before falling over the other side. During cross-examination the claimant, who had seen the CCTV footage for the first time one week before the trial, claimed that his feet only came off of the ground because he was falling, but he did accept that he was not using the banister in the way it should be used. There were numerous contemporaneous medical record entries which referred to sliding down the banister, and in cross-examination it was established that the most likely person to have told the medical professionals this information was the claimant, although he denied recalling any discussions of this nature.

The claimant confirmed that whilst he had been drinking, he was still able to make logical decisions. He admitted that the way in which he chose to use the banister was a spontaneous decision and there was not a lot of thought behind it. He accepted that he was the only person to have fallen over the banister and that on the previous occasions that he had attended the premises, he had not noticed the banister and thought of it as being low.

The claimant’s case at trial was that the defendant had not appropriately risk assessed the banister and that the defendant ought to have taken additional precautions given that the nightclub sells alcohol.  By way of rebuttal, the defendant argued that the staircase was in place when the premises were purchased, and that Building Regulations are not retrospective. The defendant had also commissioned an independent health and safety company to produce a risk assessment which raised no concerns with the staircase. In addition, a representative from the local council had also attended the premises and found no issues with the stairs.

Notwithstanding these submissions, it was the defendant’s case that the height of the banister was of no causative relevance because even if the height had been increased, there was no evidence to suggest that this would have prevented the claimant from mounting the banister. Therefore, the only result of an increase in height would have been that the claimant would have fallen 65mm further.

Findings

The Deputy District Judge made a finding of fact that the claimant was sliding down the banister. This finding was supported by both the CCTV footage and the medical record entries. The judge therefore found there to be no duty under the Occupiers’ Liability Act 1957, as the moment that the claimant fell he was a trespasser due to the fact that he had not been using the premises for the purpose for which he was invited to do so. There was also no duty in negligence as the position in negligence is similar to that under the Occupiers’ Liability Act 1957. The claimant had not pleaded the Occupiers’ Liability Act 1984 and so the defendant’s duty to trespassers was not considered. The defendant therefore did not owe a duty.

The judge also found that the claimant had voluntarily accepted the risk of injury as on his own evidence he knew what he was doing and had the capacity to run the risk. The defence of volenti non fit injuria therefore provided another reason why the defendant did not owe a duty to the claimant, and indeed would have provided a defence had a claim under the 1984 Act been pleaded.

In any event, even if a duty had been owed, the judge did not consider that causation had been established. He was not satisfied that the claimant would not have slid down the banister if it was 65mm higher, and there was little evidence on this point as it was not covered in the claimant’s engineering evidence.

The claimant’s claim was dismissed.

Comment

This case illustrates the importance in occupiers’ liability cases of considering the applicability of both the 1957 and 1984 Acts regardless of the claimant’s allegations, and considering whether the claimant is using the premises for the purpose for which they were invited to be there irrespective of whether they were expressly invited onto the premises in the first place. A famous quote from the 1926 Court of Appeal decision in “The Calgarth” was referred to at trial, “…when you invite a person into your house to use the staircase, you do not invite them to slide down the banister…” Whilst The Calgarth did not involve similar facts, the staircase scenario provided an example of who is a trespasser. In this case this quote exactly demonstrated the defendant’s argument, and the judge agreed.

A further consideration arising from this case is that the judge was of the view that the principle of volenti non fit injuria provided a further reason why the defendant did not owe a duty, rather than whether there was any breach. Whilst we consider that this is potentially open to interpretation, ultimately the result would have been the same however the principle is applied.

It is also worth noting that the decision highlights that Building Regulations are not retrospective and do not give rise to civil liability. Therefore, even if expert evidence suggests that a part of the premises does not comply with the Regulations, that does not necessarily weaken the defence.  Therefore in this case the engineering evidence to that effect was largely irrelevant because the real crux of the case was whether the defendant owed the claimant a duty in the first place, and then whether any breach of the regulations had causative relevance (which the judge considered that it did not).

Contact

For further information, please contact Sheryl Bignell, Solicitor on 0161 604 1750 or Sheryl.bignell@dwf.law

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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