Morris v National Sports Club

JurisdictionBermuda
Judgment Date20 October 1992
Date20 October 1992
Docket NumberCivil Jurisdiction 1988 No. 123
CourtSupreme Court (Bermuda)

In the Supreme Court of Bermuda

Ground,J

Civil Jurisdiction 1988 No. 123

Carol Claudette Morris (suing on behalf of herself and as Administrix of the Estate of Dennis Wilfred Morris, deceased)
Plaintiff

-and-

The National Sports Club
Defendant

Mr. David Kessaram for Plaintiff

Mr. Trevor Moniz for Defendant

Bunker v Charles Brand & SonsELR [1969] 2 QB 480

Nettleship v WestonELR [1971] 2 QB 691

Targett v Torfaen Borough CouncilUNK [1992] 3 All ER 27

Slater v Clay Cross Co LtdELR [1959] 2 QB 264

AC Billings & Sons Ltd v RidenELR [1958] AC 240

Murphy v BrentwoodELR [1991] 1 AC 398

Phillis v Daly (1988) 15 NSWLR 65

Survival of Actions Act 1949

Fatal Injuries (Actions for Damages) Act 1949

Occupiers' and Highway Authorities' Liability Act 1987

Damages — Fatal injury — Fall from wall while watching cricket game — Negligence and contributory negligence — Duty of care — Volenti non fit injuria — Knowledge of danger by injured party

JUDGMENT

This is an action for damages arising out of the tragic and untimely death of Dennis Wilfred Morris as the result of a fall suffered by him on the 4th June 1987 at the National Sports Club (‘the NSC’). The action is brought by the deceased's widow, as the administrix of his estate. By the action she claims damages on behalf of the estate under the Survival of Actions Act 1949, and for the benefit of the deceased's dependants under the provisions of the Fatal Injuries (Actions for Damages) Act 1949.

The trial commenced on Monday 14th September, and at the outset both counsel joined in inviting me to consider the issue of liability first, and to rule on that before proceeding to the question of damages, if any. I agreed to this course, and hence this judgment is limited to the question of liability alone.

The basis of the claim as pleaded is that the defendant, a body corporate established by statute, is the owner and occupier of premises, including a playing field and clubhouse. It is alleged that on 4th June 1987 the deceased was sitting astride a balcony on the upper level of the Clubhouse watching a game of cricket when he fell off the wall to the ground which was some 15 feet below, The fall caused his death, a fact about which there is no dispute. The plaintiff alleges that the fall was caused by the negligence of the club, in that they failed to take any or any sufficient steps either by erecting a fence on the balcony wall or otherwise to prevent patrons sitting on the wall, given that there was a foreseeable risk of a fall occurring, with consequent personal injury, if no such steps were taken.

In opening the case, counsel for the plaintiff said that the Club owed the statutory duty of care under the Occupiers' and Highway Authorities' Liability Act, 1987, and that they failed to comply with that statutory duty. This was not disputed by the defendant, and the case proceeded on that basis, although the statute was in fact not pleaded.

The essence of the pleaded defence was a denial of negligence and an assertion that, as a member of the Club and a frequent visitor to its premises, the deceased knew of the risk of sitting on the wall and ‘therefore impliedly consented to run the risk of injury arising therefrom.’ In other words that he was volens. It is pleaded in the alternative that the deceased caused or contributed to his own injury by his own negligence. The particulars of that negligence allege that he sat astride a narrow wall over a drop; that he failed to take any proper care; that he held his beer bottle out over the drop; that he attempted to catch it when it fell and that he had been drinking alcohol to excess thus impairing his judgment and balance.

I heard evidence from the deceased's wife (the plaintiff); his son, who was playing cricket on the field at the club at the time of the fall; and a friend who was sitting on another part of the same wall at the time of the fall. Medical evidence, consisting of four statements from the attending doctors and nurse, and the pathologist, was read by agreement. The defendant called four witnesses to show that the plaintiff had been drinking at lunch time and during the afternoon on the day of the fall.

Based on the evidence I make the following primary findings of fact. The deceased was a 49 year old male who worked as an insurance salesman on a commission basis. He was a long-standing member of the NSC, and had at some time been a member of its committee of management, although he did not hold such a position at the time of the fall. He was a keen supporter of the cricket team, of which his son was a member. He was also a frequent visitor to the Club, and was completely familiar with its lay-out and construction. He was also a frequent user of the upper bar, and of the outside patio next to it, from which he fell. There was no real dispute as to any of this.

On the day in question, he had lunch at the Rum Runners Restaurant, where he was seen and recognised by three witnesses. The part-owner and manager seated him and took his order. He testified that the deceased sat at the bar first until he was joined by a companion. The witness could not say how many drinks the deceased had at the bar, but the witness did take possibly two or three drinks to his table. He testified that the deceased was at the restaurant for some two hours, from 12 noon to 2 pm., and that after the meal he returned to the bar. He thinks that the deceased drank about half a dozen Miller's Lite beers over that period of two hours.

The barman at the Rum Runners also gave evidence to the effect that the deceased was at the restaurant; that he had a few beers at the bar before lunch; that he had lunch; that he had a couple more beers during lunch; and that he had another beer at the bar with a gentleman after lunch. He estimated the total at 6 or 7 Miller's Lite beers.

The next witness was a long standing friend of the deceased's who had recently been appointed president of the NSC. On the day in question he had met the deceased, at his request, at the Rum Runners before lunch on the 4th to discuss club matters. He testified that they each had two beers, before the meal. The witness had then had to leave and had not stayed for lunch.

This evidence was not really challenged, although the witnesses were tested as to how busy the premises were, the quality of their observation, the absence of an independent record, and so on. However, I think that the evidence given by these three was consistent and that each had a reasonable opportunity to observe the deceased's consumption. Although under normal circumstances such matters might be inconsequential and not likely to be remembered for long, in this case I consider that the fact of the incident later that day was indeed likely to fix the events of the lunch in the minds of the witnesses, and that therefore their evidence can be accepted. I therefore find that on the 4th June 1987 the deceased had about six beers at lunch over a two hour period between 12 noon and 2 p.m.

The next witness, Mr. Greaves, was a co-worker of the deceased, and gave evidence that he had worked with him for an hour or so after lunch (he put this hour as beginning at 1.30 to 1.45pm.), after which the two of them left together and went to Casey's Lounge where the deceased consumed two beers over a period of about half-an-hour to forty-five minutes. They then left and went their separate ways. He thought that that was about 3.45p.m. He also testified that the deceased had seemed quite subdued that day. He specifically testified that he recalled all this clearly, even though he was not asked by the police to give a statement at the time, because he was close to the deceased and the events that followed fixed these matters in his mind. I accept that and accept his testimony.

The upshot of all this is that over the period from 12 noon to the occurrence of the fall, at about 6.30p.m. as we shall see later, the deceased had consumed about 8 beers, not including that which he had in his hand at the time of the fall. While that is perhaps more than is wise or healthy, it is not sufficient to have produced a state of drunkenness. There is no other reliable evidence to indicate that the deceased was drunk or in a state of such intoxication that he was not able to take care of himself or make the normal, moment to moment judgments of everyday life.

The next we hear of the deceased's movements is the evidence from his wife that he collected her at 4.30 p.m. from her place of work. They went home together. The deceased's son Brian was at the house, and shortly after the deceased and his son went to the NSC, where the son was due to take part in cricket practice. The deceased did not drink at home before leaving to go to the the NSC, nor did he have a rest. I accept all of that evidence.

The deceased's son gave evidence that his father arrived home at around 4.45 to 5.00 p.m., that he (the son) left to go to practice at 5.30 or twenty-five to six, and that his father followed soon after in his car. He says that his father arrived at the NSC five or ten minutes after him, when he was already changed, and went into the Club. The son was on the field by this time. The son saw the father come out on to the patio outside the bar and sit astride the wall. The son was batting, at the far end of the pitch, facing the patio and his view was clear and unobscured. He says that after he had addressed the second ball bowled to him, his father shouted something to him, and he was looking at his father to see what he was shouting. He...

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