Feet of Clay: Remoulding the test of causation – Philip Clay and TUI (UK) Limited
By Andrew Arentsen
1. The recent decision of the Court of Appeal in the case of Philip James Clay v TUI (UK) Limited  EWCA Civ 117 confirmed the legal position since Lougheed v On the Beach Limited  EWCA Civ 1538 that cases brought under the Package Travel, Package Holidays and Package Tours Regulations 1992 are determined by reference to the local standards. More significantly it addressed the appropriate test to determine causation when a holidaymaker undertakes a demonstrably risky or dangerous action of their own volition. Having regard to the general nature of holiday injuries and the claims that then result, this is a common feature.
2. Mr Clay was on a package holiday organised by the Defendant at a 4 star hotel in Tenerife. He, his wife and his 2 children were staying in room 358 which was adjacent to room 357 which was occupied by his parents. Each room had a balcony accessed from the room through a sliding door. The adjacent balconies were offset from each other and beneath each balcony was a concrete ledge. The rooms were 2 storeys above the ground floor below.
3. On the day of the accident, the family returned from dinner and Mr Clay settled his children into bed. He and his wife then joined his parents on their balcony for a drink. At one point he returned to check on the children and when he returned onto the balcony he shut the glass door which then locked, trapping the adults on the balcony of room 357.
4. It was a warm evening but after 30 minutes of trying to attract help, Mr Clay endeavoured to step from his parent’s balcony onto the balcony of his own room. He stood on the concrete ledge and the ledge gave way. He fell 20 feet to the floor below and sustained serious injury.
5. His claim was brought under the 1992 Regulations. He alleged that the door was out of repair because it locked shut when it was closed in an ordinary manner. He also alleged that the ledge upon which he stepped was of inadequate strength to hold his weight and that the hotel had failed to warn him of the risk of climbing between the adjacent balconies.
6. The Defendant’s defence was that the act of climbing over the balustrade of the balcony to step across the gap to the adjacent balcony was “so unexpected and/or foolhardy as to be to a novus actus interveniens”.
7. Applying Lougheed (as above) His Honour Judge Seys Llewellyn QC found that the test to establish a breach of Regulation 15(1) was to prove a breach of the prevailing local standards. He found that there was no local practice that required the ledge upon which the Claimant stepped to be weight bearing since there was no suggestion that it would be required to support the weight of a person. There was also no breach of local standards in failing to warn the Claimant that the ledge was not weight bearing or that he should not attempt to cross from one balcony to another since the Defendant had no experience of it occurring in over 22 years of operation. The Hotel could not reasonably foresee that somebody would attempt to stand upon the ledge and cross between. The Judge did however find that the locking mechanism of the sliding door was defective. It should not have locked when it was simply closed. That was a breach of the prevailing local standards. Notwithstanding that breach the Learned Judge dismissed the claim. He asked: “whether the act of the Claimant in climbing to the other side of the balustrade and preparing to jump or step across the gap to his own balcony was so unexpected and/or foolhardy as to be a novus actus interveniens”. He determined that whilst the Claimant was generally a sensible decent person it was his decision to cross the balcony and that was a strikingly new and independent act on his part. “I am driven to the conclusion that this was so new and independent an act in circumstances which presented no emergency or threat that it could not be said that the locking out was a sufficient proximate cause of the accident as opposed to being part of the history and background to it”.
8. The Claimant appealed to the Court of Appeal. He argued that the Defendant was liable for all consequences of a kind which are reasonably foreseeable unless the Court finds that the damage was caused by unreasonable conduct on the part of the Claimant. The Judge should have started by making an assessment as to whether it was reasonably foreseeable that the Claimant would try to escape from the confines of the balcony rather than whether it was reasonably foreseeable that he would attempt to do so by crossing between the balcony. The Claimant relied on Hicks v Young  EWHC 1144. An injury in the course of an escape attempt was plainly foreseeable. The correct approach was then to weigh up the inconvenience to the Claimant with the risks understood by the Claimant to be involved in the escape. The Claimant’s mistaken assessment that the ledge would hold his weight was not so unreasonable that it should break the chain of causation.
9. Lord Justice Hamblen rejected the criticism of the first instance decision. He was assisted by Spencer v Wincanton Holdings Limited  EWCA Civ 1404. If the consequence is of a kind which is not reasonably foreseeable then it will be too remote. However if it is reasonably foreseeable then it is necessary to consider whether the damage is too remote because it has been caused by a novus actus interveniens. The question is whether the effective cause of the accident is the conduct of the Claimant rather than the Defendant’s prior wrongdoing. Whilst that line is not capable of precise definition, the considerations include the extent to which the Claimant’s conduct was reasonably foreseeable. The more foreseeable the conduct, the less likely it is to be a novus actus. How unreasonable is the conduct. The more unreasonable the more likely it is to be a novus actus. Finally the extent to which the conduct was voluntary and independent. The more deliberate, the more informed and the greater the free choice involved then more likely it is to be a novus actus.
10. Hamblen LJ was satisfied that the Claimant’s conduct was not reasonably foreseeable and that the conduct was unreasonable to a high degree because the Claimant and his family were faced with inconvenience rather than any danger, emergency or threat and the conduct was entirely voluntary. It was both considered and deliberate. There was no necessity for the Claimant to take that risk but he nevertheless chose to expose himself to a real danger and to an obvious risk to death or serious personal injury. The determination that his conduct constituted a novus actus interveniens was clearly justifiable on the evidence and should not be interfered with by the appellate court.
11. Lord Justice Kitchin agreed with Lord Justice Hamblen. He considered that the Judge had carried out the broad evaluation that the law requires. He balanced the degree of inconvenience to the Claimant and his family against the risk of injury if he attempted to move from one balcony to the other. He found that the decision to place his weight on the concrete ledge was a strikingly new and independent act that eclipsed the Defendant’s wrongdoing. While the Judge’s reasoning was concise there was no evidence that it betrayed any error of law or that he failed to have proper regard to any material aspect of the evidence or that he reached a conclusion which was plainly wrong.
12. Lord Justice Moylan took a different view and gave a lengthy dissenting judgment. Having established a breach of duty the Claimant had to show that the injury was reasonably foreseeable and then that his own actions were not a novus actus interveniens. Since the locking mechanism was defective the next issue was whether the injury was foreseeable. This is an issue of remoteness. Remoteness is concerned with the “kind” of damage sustained. The Judge had not specifically addressed foreseeability or remoteness and these are distinct from issues of causation which had been the focus of the judgment. What must be reasonably foreseeable is that the Claimant might sustain personal injury as a result of being trapped on the balcony. It is not necessary to foresee precisely how that injury might have resulted. It is not necessary to foresee the precise form the damage may take simply that some damage is foreseeable. Had the Judge addressed this issue then he would have concluded that it was foreseeable that the Claimant might sustain personal injury as a result of being trapped on the balcony because it was foreseeable he might try to escape and might sustain some injury as a result. The consideration is then causation and novus actus interveniens. The Judge addressed this from too narrow a perspective and therefore applied the wrong test or reached a flawed evaluation. He focused on whether there was an emergency or a threat rather than whether the Claimant’s actions were sufficiently unreasonable to amount to a novus actus. The authorities suggest that a broader evaluation is required when determining whether a Claimant’s conduct is sufficiently unreasonable to break the chain of causation by eclipsing the causative effect of the Defendant’s wrongdoing. The Judge should have considered whether the subjective conclusion of the Claimant (that the cornice was safe to step upon) was so objectively unreasonable a response to being trapped that it eclipsed the causative effect of the defect that led to them being trapped. In fact he was a sensible man who made an error of judgment. The conduct of the Claimant was not so unreasonable to mean that the reason for him being trapped on the balcony was no longer an operative cause of the accident. It was not sufficient to eclipse the causative effect of the defective lock. The family had been trapped for a half an hour, it was late at night and they were anxious about the children. The Claimant had carried out a considered analysis and considered that stepping across the balcony was safe. Whilst that analysis was flawed and whilst there was no emergency, that should not be treated as sufficient to make his actions the intervening event which broke the chain of causation. Moylan LJ would have found primary liability and then reduced the claim for contributory negligence by 45%.
13. The Claimant has appealed to the Supreme Court. It will be interesting to see whether the Supreme Court adopts the broader approach advocated by Hamblen and Kitchin LJ or the more technical and precise analysis advocated by Moylan LJ. The important impact of the same for individuals suffering serious injuries on holiday (and indeed for injuries suffered during domestic activities) cannot be overstated.