Clough v First Choice Holidays and Flights Ltd: CA 25 Jan 2006

The appellant broke his neck slipping from a wall in a swimming pool in Lanzarote. The wall was not coated with fully non-slip paint. At first instance the failure to use such paint was held negligent for the purpose of the contract between them and the appellant, and a breach of contract. A physical barrier should have been provided around the wall for the protection, not of adults, but of children. The claimant had decided to go to the pool wall significantly affected by drink and he took the risk on his own shoulders. He slipped on a surface which should have been, but was not, painted with non-slip paint. His feet were wet, but by walking where he did and being where he was, he was not doing anything abnormal nor prohibited by the rules of the complex. The claim failed at first instance on causation, the judge concluding that the negligence and breach of duty lacked causative potency. A relaxed approach to causation could not apply, and that it was impossible to conclude that but for an essentially unquantifiable increased risk of slipping from not using non-slip paint, the claimant’s slip would not have occurred.
Held: The appellant submitted that exceptionally the omission to use non-slip paint should be treated as having made a material contribution to the accident, and further that a material contribution to the risk of slipping should be sufficient where as a matter of policy the court might exceptionally find causation proved even though, due to the limits of current knowledge, the evidence did not permit a factual inference that the increase in risk materially contributed to the damage: ‘The authorities to which Mr Burton drew attention establish that the ‘but for’ test, applied in its full rigour, should no longer be treated as a single, invariable test applicable to causation issues, in whatever circumstances they may arise. The question in the present appeal is whether Fairchild and the series of decisions developing the law of which it represented the culmination (subject of course to subsequent developments) have any application here. In my judgment, in agreement with the judge, they do not. On any view, it would be absurd to describe this unfortunate accident as exceptional. Accidents like this happen all too frequently, and even though negligence by an identified tortfeasor is established, the question still remains whether the negligence caused the claimant’s injuries. A successful claim for damages for personal injuries consequent on negligence or breach of duty requires the court to be satisfied that the injuries were indeed consequent on the defendant’s negligence. . . the distinction sought to be drawn . . between material contribution to damage and material contribution to the risk of damage has no application to cases where the claimant’s injuries arose from a single incident.’
Sir Anthony May VP, Hallett, Richards LJJ
[2006] EWCA Civ 15, [2006] PIQR, [2006] NPC 8
Bailii
England and Wales
Citing:
Appeal fromClough v First Choice Holidays and Flights Ltd QBD 2005
‘Mr Saggerson [then appearing for the Defendant] made the point . . that there is always a risk of slipping around a swimming pool. That, I am sure, is the common experience of everyone who uses a swimming pool, whether at home or abroad. In those . .

Cited by:
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ea_ellis
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CitedWilson v Haden (T/A Clyne Farm Centre) QBD 15-Feb-2013
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These lists may be incomplete.
Updated: 26 January 2021; Ref: scu.238130