In this case from Newcastle, the local authority had given the Defendant (D) listed building consent to convert a premises into a large pub. The interior had a large open staircase with banisters each side, which were below the minimum height allowed under the then current building regulations. English Heritage had been consulted but had not wanted any changes to be made to the staircase and so, the requirement to raise the height of the banisters was waived by the local authority.
The claimant (C) was out with some colleagues drinking at the pub and whilst there, started talking about sliding down the banister. As the group was leaving, C decided to give it a go and got on the banisters but fell backwards, landing on the marble floor about four metres below.
As a result of the fall, C sustained a spinal fracture resulting in tetraplegia.
At the hearing C gave evidence that she was acting rationally at the time of the accident and despite being aware that there was an obvious risk of falling, she had decided to take that risk.
D argued that C had voluntarily assumed this obvious risk inherent in sliding down open banisters with a long drop either side.
C submitted that although her conduct was relevant to issues of contributory negligence, it could not amount to a defence in law.
(1) On the evidence C had accepted the obvious risk inherent in sliding down the banisters. She had deliberately taken the risk that she might fall. It was not her intention to fall but, due to a momentary misjudgement, she did. It was also heard that D had taken some steps to deal with the problem and could not reasonably have been expected to have done any more.
Given C's evidence about the obvious risk that she ran, the principle of voluntary assumption of risk was fatal to her claim. D owed her no duty to protect her from such an obvious and inherent risk. She made a genuine and informed choice and the risk that she chose to run materialised.
(2) It was trite law that the mere fact that there was a foreseeable risk of injury did not of itself create a duty of care. Even if C's voluntary assumption of an obvious and inherent risk was not a complete answer to the case there was no doubt that the absence of any obligation on the part of D to protect or prevent her from voluntarily assuming that risk provided the answer.
Judgment was given for defendant – D could not be held liable for C’s injury, as she had voluntarily assumed the obvious risk inherent in sliding down the banisters.
This case clearly shows how the Court considered the Defendant’s duty of care under the Occupiers Liability Act 1957, where the Claimant voluntary assumed an obvious and foreseeable risk, which lead to their suffering an injury.