Claim Dismissed As Judge Describes Accidental Fall As 'Fanciful'

• Published date: 28 February 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Personal Injury
• Law Firm: BLM
• Author: Marc Harries

Barry Forsyth v Christine Bintcliffe T/A Carnforth Hotel

Following a four day liability trial BLM has successfully secured the dismissal of a claim under the Occupiers Liability Act. The claim arose from an accident that occurred in the early hours of the morning when the claimant sustained injury after falling from his first floor hotel room.

The facts of the case

On 7 September 2016 Mr Forsyth and a work colleague arrived at the Carnforth Hotel with a request for a room for the night. The claimant accepted that he had consumed alcohol (possibly a large amount) in the hotel bar and it was determined that he was likely intoxicated. He suffered fractures to the heel areas of both feet and whilst unable to recollect the circumstances himself, the evidence pointed to him having lost both his balance and grip whilst sitting on the outside window sill of his first-floor room; subsequently falling 16ft to the pavement below.

Within the Particulars of Claim, the claimant pleaded that the defendant had breached its statutory duty under Section Two of the Occupiers Liability Act 1957. It was alleged that the defendant was negligent in:

• Failing to fit a locking device on the window to prevent persons from falling through it.
• Failing to install a block to prevent the window from being opened fully.
• Causing, allowing, or permitting the window to open to such an extent that visitors could easily fall from it.
• Failing, when the window was large enough for visitors to fall out of, to ensure that the same was suitably restrained to prevent any such fall exposing the claimant and other visitors to an unnecessary possibility of risk.

Within the defence, it was contended that the condition of the window was such that the claimant, as a visitor, was reasonably safe; it did not open sufficiently for someone to fall through it, and it was not reasonably foreseeable that an adult would behave in such a way that an occupier would need to fit a limiter or guard. It was argued that the claimant was the author of his own misfortune and, if there were any breach, it was not causative. Whilst the defendant was an occupier for the purposes of the Occupiers' Liability Act, the scope of her duty of care was restricted to matters within her control; it was argued that her obligation in her lease was to keep the windows and interior in good tenantable repair and condition, but that she was under no obligations regarding the structure. It was contended that the window in question was...