Incident Report: Michael Clough

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The claim involved a catastrophic incident on 13 November 1999 when Michael Clough, then 26 years old, fell 64 feet from a wall and broke his neck in the 'fountain' swimming pool at the Las Lomas Appartments holiday complex in Lanzarote. It was eventually conceded that the wall surface was not designed to be non-slip in breach of the local standard in Span. 

The circumstances of the incident are that Mr Clough and his friend, Mr Lloyd, spent several hours watching a football match between England and Scotland. Mr Clough conceded to drinking six pints of lager during that time. After a short swim in the first pool, Mr Clough and Mr Lloyd moved to the Fountain pool. Mr Clough walked along the wall in his bare wet feet, where he 'slipped/fell' into the paddling pool. The judge, at first instance, found that he had not deliberately dived as the respondent had suggested. The judge also found that Mr Clough was in high spirits and approximately two and a half times over the legal limit for lawful driving but was nevertheless capable of realising what he was doing. 

At first instance, the judge used the words: 

If he did not dive, the natural inference is that he lost his balance in some way and fell into the pool. This could have been because he simply stood too near the edge of the wall, and, given his intoxicated state, merely toppled over, or it could be because he slipped from some point on the horizontal surface of the wall and fell following a slip.

The decision at first instance was that the appellant slipped and fell in a 'toppling movement' and struck his head on the bottom of the paddling pool. Breach of duty was made out because the surface should have been slip-resistant according to local standards. 

The claim failed at first instance on account of causation. The judge highlighted several features relevant to this conclusion.

• Firstly, other facility users had walked on the wall without incident, including the appellant's expert, Mr Morgan, some eighteen months after the incident. Mr Morgan's view was that the wall was not safe. The respondents failed to call any expert evidence to contradict him. 
• Secondly, the respondent had raised at first instance that the appellant was outside the class to whom the duty to provide non-slip paint was owed, claiming it was only applicable to children. The Court of Appeal dismissed this, stating that non-slip properties were for the protection of adults and children.
• Thirdly, the first instance judge found it difficult to resist the inference that had the appellant not been intoxicated, he would probably not have used the wall and, thereby, would not have slipped.
• Fourthly, the judge initially considered the basis for liability arising from the absence of a physical barrier to protect against a fall. The judge found that the appellant was outside the class to whom the duty to provide a barrier was owed. This was not challenged on appeal. 

The Court of Appeal proceeded to analyse whether the authorities flowing from Fairchild applied to this case. The Court decided in paragraphs [44]-[45] that they did not. A claimant does not have to show in a claim for personal injury that the defendant's negligence was the 'only', 'single' or 'chronologically last' cause of his injuries. The claimant is required to show there is a causal link between the negligence of the defendant and his injuries. It is not enough for the claimant to show the defendant increased the risk of injury. The claimant must show that the defendant's negligence made a material contribution to the claimant's injuries. 

The Court acknowledged the decision, in this case, was difficult to reach. The Court found that the judge, at first instance, failed to recognise that non-slip paint was intended to protect the inebriated as well as the sober. The Court of Appeal acknowledged that non-slip paint would have made the surface less slippery but not slip-proof to remove the risk of a slip altogether. The Court found that the fact that the appellant slip did not show that the slip resulted from the absence of non-slip paint. The appellant, therefore, failed to show, on the balance of probabilities, that the defendant's failure to paint the wall in non-slip paint made a material contribution to the appellant's injuries. The Court of Appeal felt the trial judge had adequately directed himself on the law and appropriately applied the facts to the issue of causation. Lady Justice Hallett said, '...the appeal is, in essence, an attack upon the judge's findings of fact, which, as my Lords have observed, were properly open to him'. In a unanimous decision, the appeal was dismissed. 

References

Clough v First Choice Holidays and Flights Ltd [2006] EWCA Civ 15. Available at https://caselaw.nationalarchives.gov.uk/ewca/civ/2006/15 accessed 3 July 2023. 

Citation: Jacklin, D. 2023. Incident Report: Michael Clough. Water Incident Research Hub, 3 July.