Estall v Sodexo – duty of care?

Articles

22/01/2025

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.
  1. 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.
  1. 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.
  1. 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.”
  1. 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 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].  
  1. 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:

“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.”

  1. 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.
  1. 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 breach could ever be logically causative even if there was a duty to do it), this level of intervention was not enough to amount to an assumption. Comparison can be drawn with the interventions which did trigger duties in Barrett and Jebson[5], and the interventions which did not in Tindall[6], and the cases referred to by the Supreme Court thereinnamely East Suffolk Rivers[7], Ancell[8], Capital & Counties[9], Gorringe[10] and Michael[11].
  1. The Supreme Court in Tindall further clarified that the fact a public authority (which presumably extends to an occupier) had intervened in the past in a manner which would confer a benefit on members of the public was not of itself sufficient to give rise to a duty to act in the same way (or at all). This surely pierces the sail of an argument that the usual practice of shouting into the toilets created a duty of care to do so. A further interesting discussion would have been that of reasonable reliance; where, as in this case, the form of intervention was not direct and personal, rather it was a policy owed to a category of persons (unknown residual occupants of the toilets), does it come closer to the assumption cases involving professional advice where claimants must demonstrate reliance?
  1. Not needing to argue assumption, the defendant pointed to analogous authorities such as Barrett, the Northern Irish case of Joy v Newell[12], and in particular Master McCloud’s judgment in Ovu[13]. This was a very similar case involving an intoxicated visitor to Canning Town tube station who sadly died after falling down a set of stairs he had reached after walking through gates at the end of a platform. A member of station staff had been alarmed to the gate having been passed through, and attended to close the gate, though – contrary to the defendant’s policy – did not go any further to check if anyone was there. The deceased was not discovered and was prevented from re-entering through the gate he came through, but was not trapped because he could venture further to the emergency exit onto the outside world. Master McCloud affirmed the distinction between ‘occupancy’ and ‘activity’ duties, confining the OLA 1954 to the former. In her judgment no common law duty arose and thus the claim failed. The existence of the policy to check the exit structure did not establish a common law duty of care to do so. The reader will note that this latter reasoning is synchronous with that of the Supreme Court in Tindall as described above in paragraph 9.
  1. Claimant counsel relied in reply on the case of Jebson[14] in which the defendant employer was held to owe a duty of care where it had put on transport after a night out for its employees who it knew were likely to be intoxicated. Reliance was also placed on two cases involving claimants being injured while trying to escape from premises they had been locked inside, namely Sayers[15] and Heary v Phinn[16].
  1. This was not, claimant counsel contended, an omissions case. Rather this was a “negligent failure to perform a positive act”; they had a duty to inspect the premises to ensure vacancy, and they performed this positive act negligently. In any event, said claimant counsel, the distinction is somewhat artificial because most cases can be analysed as either act or omission.
  1. HHJ Clarke, sitting as a High Court judge, made short shrift of this latter argument. It was “crystal clear” that this was an omissions case, shown not least by all nine of the maintained particulars of negligence being framed as failures. The defendant did nothing to cause the claimant harm, nor did it carry out any action which caused injury. To suggest that semantic wordplay renders the act/omission distinction artificial forgets that Lord Reed specifically rejected this argument in Robinson. Turning to the claimant’s case law, HHJ Clarke agreed with defendant counsel that these cases did not assist. Heary v Phinn was a Scottish first instance decision based on first principles (which we now know, following Robinson, to be wrong), and duty of care was not argued on appeal in Sayers (the live issue instead being remoteness). Anyway both cases concerned being locked in, where the claimants were effectively made prisoners by the defendants’ actions, which is a materially different scenario to the index case.
  1. Claimant counsel had also relied in submissions on Mr Justice (as he then was) Beldam’s seemingly supportive decision in Munro[17], though the Judge agreed with defendant counsel that this is now bad law. Beldam LJ markedly did not refer to his decision in Munro when giving judgment in the later case of Barrett, for which he sat in the Court of Appeal and reached the opposite conclusion, as was noted by the Northern Irish Court of Appeal in Joy v Newell. Similarly the case of Jebson was not analogous as the defendant in that case had performed the positive act of physically transporting the claimant. Conversely the defendant’s case law was analogous and authoritative, especially Ovu.
  1. Overall, therefore, this was an omissions case not falling within any of the exceptions, and there was no duty of care. The parties gave submissions on the Caparo criteria and whether the Court should identify a novel duty, though HHJ Clarke reasoned there were determinative analogous authorities hence it would be unnecessary and wrong to perform this exercise.
  1. Accordingly the claim fell to be struck out, albeit with sympathy for the seriously injured claimant. The defendant was awarded its costs, with an order for an interim payment on account of costs which has been satisfied by the claimant’s ATE insurer.

Richard has a successful civil practice acting for both defendants and claimants, often in high value cases, either as sole counsel or led by prominent KCs. He has both breadth and depth of knowledge and is particularly fluent at arguing complex points of law. Before pupillage he worked on seminal appeals in the civil division of the Court of Appeal as Judicial Assistant to Lord Justice Jackson, from which he developed nuanced and sophisticated analysis of case law.

Michael Gwilliam is a partner at DWF who specialises in defendant personal injury work, often with an international element. He is ranked as a Band One individual by Chambers & Partners. In addition to his international work, Michael has a busy caseload covering a full range of UK based EL/PL risks including those involving the hospitality, entertainment, construction and property management sectors.


[1] Spearman v Royal United Bath Hospitals NHS Foundation Trust [2017] EWHC 3027 (QB); [2018] Med. L.R. 244

[2] Robinson v Chief Constable of West Yorkshire [2018] UKSC 4.

[3] Barrett v Ministry of Defence [1995] 1 WLR 1217

[4] HXA v Surrey County Council [2023] UKSC 52; [2024] 1 W.L.R. 335

[5] Jebson v Ministry of Defence [2000] 1 W.L.R. 2055

[6] Tindall v Chief Constable of Thames Valley [2024] UKSC 33 | [2024] 3 W.L.R. 822

[7] East Suffolk Rivers Catchment Board v Kent [1941] AC 74; [1940] 4 All ER 527

[8] Ancell v McDermott [1993] 4 All ER 355; [1993] RTR 235

[9] Capital & Counties plc v Hampshire County Council [1997] QB 1004; [1997] 3 WLR 331; [1997] 2 All ER 865

[10] Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15; [2004] 1 WLR 1057; [2004] 2 All ER 326

[11] Michael v Chief Constable of South Wales Police [2015] UKSC 2; [2015] AC 1732; [2015] 2 WLR 343; [2015] 2 All ER 635

[12] Joy v Newell (t/a Copper Room) [2000] N.I. 91

[13] Ovu v London Underground Ltd [2021] EWHC 2733 (QB)

[14] Jebson v Ministry of Defence [2000] 1 W.L.R. 2055

[15] Sayers v Harlow Urban District Council [1958] 1 WLR 623

[16] Heary v Phinn t/a Phinn Parts (2013) SLT (Sh Ct) 145)

[17] Munro v Porthkerry Park Holiday Estates [1984] 81 L.S. 1368 (QB)

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Richard Collier

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