Expert Witness Journal Issue 68 August 2026 - Flipbook - Page 48
5.
whether his actions made
contribution to the fall; and
a
causative
6.
the relative blameworthiness and causative
potency of the parties’ conduct.
premises. Identify precisely what made the feature
dangerous, who was foreseeably exposed to it and
what reasonable precaution would have reduced the
risk.
3. Obtain the complete risk-assessment history
Illegality and volenti
Seek all pre-accident inspections and risk
assessments, together with post-accident reports,
learning documents, near-miss investigations and
estate-wide reviews. A later document may reveal the
nature of a pre-existing risk and what a competent
earlier assessment should have identi昀椀ed.
The illegality ground failed once the factual
allegations of criminal conduct failed.
The Court of Appeal added that it would have
dismissed this ground even if criminal conduct by
the claimant had been one of two or more causes
of the accident. Relying upon McCracken v Smith
[2015] EWCA Civ 380, Stuart-Smith LJ stated that
the doctrine of ex turpi causa would not apply in
those circumstances.
4. Investigate changes of use
Establish the building’s original use, later use,
refurbishment history and the characteristics of the
present users. A structure built for one purpose may
require reassessment when used for another.
The defence of volenti had been rejected at 昀椀rst
instance. There was an inherent di昀케culty in the
Ministry maintaining, on the one hand, that the
height of the balustrade was not dangerous and, on
the other, that the claimant knowingly accepted the
very risk created by its inadequate height.
5. Do not treat non-retrospectivity as determinative
Even where modern Building Regulations were not
formally triggered, they may provide evidence of
professional knowledge, accepted safety practice
and the reasonableness of precautions.
The broader lesson is that illegality, volenti and
contributory negligence are not interchangeable
labels for unattractive behaviour.
6. Preserve compelling photographic evidence
Obtain photographs showing the guarding in
context and, where appropriate, its relationship to
the claimant or a suitable scale. Measurements alone
may not adequately communicate the relationship
between the height of the guarding, the claimant’s
centre of mass and the risk of toppling.
Illegality requires proper identi昀椀cation of the
unlawful conduct and analysis of its relationship
with the claim.
Volenti requires a genuine and voluntary acceptance
of the relevant legal risk, not merely knowledge that
an activity carries some danger.
7. Instruct the appropriate expert disciplines
A building surveyor may address construction,
standards and condition. A suitably quali昀椀ed
engineer or falls expert may be required to address
the mechanics of the fall and counterfactual
causation. Do not assume that a single expert is
necessarily equipped to cover both areas.
Contributory negligence requires proof that the
claimant failed to take reasonable care for his own
safety and thereby contributed to the damage.
Over-pleading each defence may distract from
the realistic issue, which is often a conventional
assessment of the claimant’s own care and causative
contribution.
8. Frame expert questions around
alternative mechanisms
Ask what would probably have happened with
reasonably safe guarding under each factual
mechanism supported by the evidence. This protects
the case if the court rejects the claimant’s primary
account but accepts an alternative version.
Learning points for claimant solicitors
1. Establish the claimant’s status early
In employer-provided accommodation, obtain
the employment contract, service requirements,
accommodation rules and evidence showing
whether residence was compulsory. The fact that
the claimant was required to live in the barracks was
central to the Court’s rejection of the temporary
trespasser argument.
9. Address brain injury and memory expressly
Where the claimant’s recall is impaired, obtain
appropriate neurological or neuropsychological
evidence if required. Explain why reliability may be
a昀昀ected without suggesting dishonesty. Construct
the case so that it does not depend entirely upon the
claimant’s memory.
2. Identify the physical danger separately from the
claimant’s conduct
Do not allow allegations of intoxication, horseplay
or other misconduct to obscure the condition of the
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