The decision in another English case, Clay v TUI UK Ltd [2018] EWCA Civ 1177, is useful as it looks at the requirements for novus actus interveniens and provides a useful review of some of the key decisions in this area.

The claimant sought damages after suffering injury while on holiday in Tenerife with his family and parents. They had stayed in adjoining hotel rooms two storeys up. The claimant and other family members were locked out on the balcony when the sliding balcony door closed. When their attempts to get help were unsuccessful, the claimant tried to climb from the balcony to the balcony of the adjoining room by standing on a ledge below the balcony. This was made of concrete, but was decorative and not weight bearing. The ledge gave way and the claimant fell to the ground, fracturing his skull.

Relying on the Package Travel, Package Holidays and Package Tours Regulations 1992, the claimant raised proceedings against the defendants with whom he had booked the holiday. At first instance, the judge found that the lock on the sliding door had been defective and that this was a breach of local standards for which the defendants were liable. However, he accepted the defendants’ argument that, even if breach of contract or negligence were proved, the claimant’s action in trying to climb from one balcony to the other was so unexpected and/or foolhardy that this amounted to a novus actus and the claim was dismissed.

An appeal by the claimant was also unsuccessful. The appeal court concluded that the judge at first instance had not failed to follow the approach set out in Sayers v Harlow UDC [1958] 1 WLR 623. He had considered the fact that the claimant and his family had not faced any danger, emergency or threat while trapped on the balcony and had compared this to the obvious risk of life-threatening injury involved in standing on the ledge. He had weighed the level of inconvenience involved in being stranded on the balcony against the risk that the claimant had taken in trying to do something about this. He had also considered whether the novus actus eclipsed the prior wrongdoing, and had decided that the locking out had been superseded by the claimant's actions.

The judge had also properly considered the degree of unreasonableness required in order for the claimant’s behaviour to amount to a novus actus, and had decided that the claimant’s action in trying to jump across to the other balcony was a “strikingly new and independent act” and had been highly unreasonable.