EWJ 60 April 2025 web - Journal - Page 60
Estall v Sodexo - Duty of Care?
Richard Collier was instructed as sole counsel for the defendant by Michael Gwilliam,
partner at DWF, and successfully applied to strike out a high value personal injury claim with
enforceable costs. The case involved complex legal argument concerning duty of care.
1. This article and case demonstrate the dangers of
an imprecise and general assertion of duty; when
properly interrogated it was defective, contrary to
established principle and bound to fail.
focusing on scope without first demonstrating why a
duty existed. This was an omissions case, a failure to
confer the benefit of checking the toilets and finding
the claimant, for which the common law does not normally recognise a duty of care unless it falls within one
of the limited exceptions: control over harm or third
parties, special relationship, assumption of responsibility. No exception applies and there are analogous
authorities in which no duty was identified. These
analogous authorities are determinative in this assessment of whether a duty exists, per the correct method
reiterated by the Supreme Court in Robinson[2].
2. On the 29th October 2020 the Claimant attended
a bar which was operated by the defendant. She drank
heavily and around closing time entered the defendant’s toilet cubicle where she passed out and spent
several hours unconscious, kneeling against the toilet.
She suffered significant injuries with lasting effects.
Though the premises were closed the claimant would
have been able to leave via an emergency exit. Usually
at closing time the defendant’s staff would open the
main door to the toilets and shout that the bar was
closing although this did not happen on the night in
question. The claimant brought a claim in negligence
which the defendant applied to strike out because they
owed no operative duty of care. The application was
heard in December 2024 at the Oxford District Registry before HHJ Melissa Clarke sitting as a High
Court Judge.
6. The fact that the defendant served alcohol on its
premises does not imply a requisite level or type of
control, or amount to ‘making matters worse’. It is
trite law that serving alcohol, even to such a degree
that drinkers become dangerously intoxicated, does
not impose a duty of care on the server to protect the
drinker from the harmful effects of their consumption. The Court of Appeal made as much clear in Barrett[3] concerning an off-duty airman at a military base
who drank to excess at the mess bar and died as a result (by choking on his own vomit). The defendant
controlled all facilities and can be understood as the
occupier. Lord Justice Beldam stated on page 1224:
3. The defendant argued that the Occupier’s Liability
Act 1954 (“OLA 1954”) did not apply as the injury was
not caused by the hazardous state of the premise. The
Act only applies to dangers which arise from the physical state of the premises, and not those dangers which
arise from the activities the visitors take part in while
on the premises. Occupiers do not owe visitors a general duty of care to keep them reasonably safe from
all dangers. It is possible for occupiers to owe concurrent duties of care to visitors in respect of other risks,
but these are separate common law duties which must
arise from the particular circumstances and more than
merely the occupier/visitor dynamic. Mr Justice
Spencer’s judgment in Spearman[1] is instructive in
this regard.
“I can see no reason why it should not be fair, just and reasonable for the law to leave a responsible adult to assume responsibility for his own actions in consuming alcoholic drink.
No one is better placed to judge the amount that he can safely
consume or to exercise control in his own interest as well as in
the interest of others. To dilute self-responsibility and to blame
one adult for another’s lack of self-control is neither just nor
reasonable and in the development of the law of negligence an
increment too far.”
7. Turning to another of the recognised exceptions,
assumption of responsibility was not pleaded by the
claimant. The defence explicitly highlighted this absence, and there was no reply. By way of contrast, the
Supreme Court’s granular textual dissection of the
pleadings in HXA[4] demonstrates the necessary level
of detail even where it is pleaded. Claimant counsel
did not pursue the point at the hearing and so the
judge was not troubled with deciding it.
4. The pleaded claim stated: “The Defendant was
responsible for the running of the Bar and owed a
common law duty of care to all visitors to the Bar to
ensure that they were reasonably safe.” Per counsel’s
skeleton argument, it was necessary to consider not
simply whether there was a duty of care, but a duty in
relation to what. The scope in this case “encompassed
the
inspection of the building, including the toilet facilities, to ensure that visitors (including the
Claimant) were reasonably safe and not at risk of injury if left on the premises overnight.” The key facts
were that the “Defendant was exercising control, not
only in respect of the ‘source of danger’ i.e. alcohol but
was also in the control of the building.”
8. Although therefore academic by the point of the
hearing, the defendant had provided a host of reasons, through counsel’s skeleton argument, why no
assumption could be identified in any event. The only
conceivable pleaded fact which could be framed as an
assumption of responsibility was the practice of usually
shouting through the doors at the end of the night.
Leaving to one side another pleading problem (the
averred insufficiency of this practice was framed as a
particular of negligence, hence one wonders how a
5. The defendant contended that the claimant failed
to disclose in her pleadings facts from which a duty
arose and had ‘put the cart before the horse’ by
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APRIL 2025
