The claimant was injured when she was attempting to leave a hotel. Rather than taking the designated exit she had attempted to jump over a wall onto the adjacent road. Unknown to her there was a 6-ft drop to the road and she suffered substantial injuries as a result of the jump.
The trial judge held that the defendant had failed in his duty to fence off the relevant area and in doing so had failed to ensure that his visitors were reasonable safe. It was certainly foreseeable that persons might fall over the edge of the wall if they approached it. The judge, however, found that the claimant was contributory negligent and was accordingly 50% to blame.
An appeal was made against the trial judges decision and the issue was whether the risk of an accidental fall was different to a deliberate act of jumping from the wall.
Reference
The court held that the achievement of the appropriate standard of care did not extend to protecting people against foolhardy and unexpected conduct. The defendant could not be fixed with liability simply because of a failure to guard against a risk different in kind from that which materialised. A risk of an accidental fall was materially different from that of sustaining injury when one deliberately chose to jump down a drop known to exist. Accordingly the appeal was allowed.
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Postscript
In essence the court held that although the defendant should have appreciated that the lack of fencing could lead to accidental falls, in this case the injuries were sustained as a result of a deliberate act by the claimant and that risk was different to the one identified. The defendant did not therefore attract liability.
