This article explores the recent case of Clay v TUI Ltd  EWCA Civ 1177. Mr Philip Clay brought a claim for damages for personal injury against TUI UK Limited. Mr Clay sustained injuries when he fell from a balcony at a hotel in Tenerife, where he and his family had gone on a package holiday booked with TUI.
The Trial Judge found that the Mr Clay’s actions had broken the chain of causation. On appeal, the Court of Appeal agreed with the Trial Judge but there was a powerful dissenting judgment by Moylen LJ. The judgment may be found here http://www.bailii.org/ew/cases/EWCA/Civ/2018/1177.html
In July 2011 Mr Clay, his wife, two sons and parents went on a package holiday booked with TUI to Tenerife. Mr Clay and his family were staying on the second floor of a hotel in Tenerife. They occupied two adjoining rooms. Each room had its own balcony, accessible via a sliding door that could be locked.
On 20th July 2011, Mr Clay and his family became trapped on a balcony when the door became stuck behind him. For 30 minutes he attempted unsuccessfully to attract attention. Following this, Mr Clay decided to step across from one balcony to the other. The balconies were offset from each other and underneath each was a ledge. In stepping across the balconies, Mr Clay stood on the ledge. The ledge gave way and he fell to the terrace below and was seriously injured, fracturing his skull.
A personal injury claim was brought against TUI, relying on the Package Travel, Package Holidays and Package Tours Regulations 1992 (SI 1992/3288). The particular breaches were: a failure to maintain the lock to the sliding door, the ledge was insufficient to hold his weight; and/or the hotel did not inform of a potential risk within the premises, and about the safety measures adopted.
The Trial Judge found that there was no breach of local standards in relation to the ledge being insufficient to hold weight and in failing to give a warning regarding the ledge. Those decisions were not challenged. Notwithstanding this, The Trial Judge found that the door lock was defective, which was a breach of local standards. However this was not causative of the injury. Mr Clay’s act of stepping across to the adjoining balcony was “so unexpected or foolhardy as to be a novus actus interveniens.”
Court of Appeal
The central issues on appeal were:
(1) The judge misdirected himself as to the appropriate test of remoteness.
(2) The judge failed to consider relevant evidence and/or the judge’s conclusion that the defect in the locking mechanism was not causative of the accident was wrong.
The Court of Appeal dismissed the appeal by majority. The Court found that the Trial Judge had correctly directed himself as to the test for causation and remoteness. It was agreed that in order to break the chain of causation, the intervening act must be so unreasonable that it eclipsed the Defendant’s wrongdoing. Henceforth whilst the defective door might be the factual cause, Mr Clay stepping across the balcony had eclipsed it. Therefore the defective door was not a contributory factor.
The Court agreed that the Trial Judge had correctly balanced the risk posed by the activity with the risk of remaining on the balcony. It was noted that neither Mr Clay nor his family was in any danger. It is acknowledged that being locked on the balcony would have been inconvenient. However Mr Clay’s actions of, placing himself at risk of serious life threatening injury, could not possibly be described as anything other then foolhardy. Consequently the Trial Judge was entitled to regard the new act as unreasonable and that Mr Clay’s conduct was not reasonably foreseeable.
What is perhaps most interesting in this case is the powerful dissenting judgment of Moylan LJ. His Lordship made clear his views that the Trial Judge’s evaluation was far too narrow. The defect in the lock was a causative factor, and the response to being trapped outside was not so unreasonable so as to make it an intervening event. It will be interesting to see how this area of law develops.