Holidaymaker held to have broken chain of causation when he fell from balcony ledge
In Clay v TUI UK Ltd [2018] EWCA Civ 1177, the Court of Appeal upheld the decision at first instance denying a remedy to Mr Clay. He had been trapped on a balcony, whilst on holiday, with his family as a result of a faulty door. After calling for help without success for over 30 mins, he stepped onto the outer ledge of the balcony with the intention of stepping over to the adjoining balcony, where his children were sleeping. The ledge did not sustain his weight and he fell two floors, sustaining a brain injury as a result. The majority of the Court of Appeal considered that: (a) his conduct was not reasonably foreseeable; (b) anyway, his decision to step onto the outer ledge when he could not know that it was safe and when he was in no immediate danger was a novus actus interveniens. Moylan LJ disagreed and recognised that the judge below (and the majority) were not asking the correct question on foreseeability and not addressing the balancing exercise to determine whether there had been a break in the chain of causation on a sufficiently wide basis.
Robert Weir QC was acting for the claimant with Bryan Thomas of Civitas Chambers, instructed by Sue Edwards of Slater & Gordon solicitors.
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