Intervening cause or just foreseeable carelessness?

The claimant’s act of seeking to climb onto a neighbouring balcony when locked out of his hotel room was an intervening cause that broke the chain of…

Clay v TUI UK Ltd [2018] Court of Appeal

Executive summary

The claimant’s act of seeking to climb onto a neighbouring balcony when locked out of his hotel room was an intervening cause that broke the chain of causation.

In detail

The claimant was on holiday with his family in Tenerife. They had adjoining rooms. Both rooms had balconies accessible by sliding doors. The balconies were approximately one metre apart. The claimant, his wife and his parents were on one balcony and his children were in bed in the other room. After using the bathroom, the claimant returned to his wife and parents on the balcony and closed the door to prevent insects entering the room. Unfortunately the door locked. After unsuccessfully trying to attract attention for about 30 minutes, the claimant attempted to step across to the other balcony. He placed his foot on a ledge beneath the balcony but unfortunately this gave way and he fell 20 feet to the terrace below. The judge held that the defendant was in breach of duty in respect of a defective locking mechanism on the sliding door. However, the claim was dismissed on the basis that the claimant’s conduct was a separate and intervening cause. The claimant appealed.

The decision

The central question was whether the judge was entitled to find that the claimant’s injuries were caused by his own conduct rather than the defendant’s breach of duty. By a majority of 2:1 the Court of Appeal upheld the trial judge’s conclusions for the following reasons:-

  • The situation the claimant faced was inconvenient but was not an emergency.
  • There was no danger or threat from being trapped on the balcony.
  • By contrast, the claimant chose to take a risk of life threatening injury, i.e. the inconvenience of the situation was slight but the danger of the act was great.
  • The claimant did not know and could not know that the ledge was safe to step on.
  • The conduct was voluntary, considered, deliberate and unreasonable to a high degree.

Conclusions and implications

A decision as to whether an act amounts to an intervening cause is always fact-sensitive. There is no precise definition of the rule and outcomes are therefore difficult to predict. As a broad rule of thumb, the relevant conduct must generally be new, independent and sufficiently unreasonable that it eclipses the prior breach of duty and goes beyond the scope of just contributory negligence. The bar is high. However, it is an important legal concept both in situations like the instant case and also ‘second injury’ cases if a claimant’s conduct is unreasonable to a sufficiently high degree. Further, if it does apply then it will defeat a claim even where a claimant is able to prove that ‘but for’ the original breach of duty he would not have been injured.

For further information about Weightmans LLP or to discuss any of the issues in this update, please contact Peter Wake, Head of Local Government Litigation (0151 242 6866,

Share on Twitter