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 butunwilling to hold a third partyto 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 staircaseof 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 ridedowntheir 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 hearsome siren call inviting impulsive or unwise behaviour. Even the sober mindedmay 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 friendsand 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 Claimanthad 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 justicein 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 Everettv 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 somealterations to the banisters. This principally consisted of winding a long length ofthick rope around the ornate supports of the staircase, and over the top of the banistersthemselves, which meant that it became impossible to slide down them. It appearsthat, 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.