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Occupiers’ liability: when an inspection may not be reasonable enough

Liz Harrison and Perry Hill review the recent case of Butcher v Southend-on Sea Borough Council (2014) in which the Court of Appeal considered whether the existence of a system of inspection was sufficient to defeat a claim for personal injury brought under the Occupiers’ Liability Act 1957.

Background

S 2(2) of the Occupiers’ Liability Act 1957 imposes the “common law duty of care” upon occupiers to:

take such care as in all the circumstances is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.”

Facts

  • The Claimant sustained injury when she fell whilst walking along a tarmac path on the Defendant’s property, after visiting her parents in the adjacent  local authority owned sheltered housing complex. 

  • Beside the path was an area of patchy grass. Her case was that there was a difference in level between the edge of the path and the abutting ground and that the edge of the path was not clearly marked.  The difference in level caused a drop from the path of somewhere between 2 ½ - 4 inches. She fell when she stepped half onto and half off the path.

  • The most likely explanation for the drop was that a spell of dry weather had caused the earth in the garden to shrink back from the path. 

  • The path was the subject of at least weekly inspections and the caretaker of the property was also responsible for looking after the garden.  There had been an independent audit of the ground two years previously which had not identified that the fact that the path was immediately adjacent to a patch of earth would create a hazard to the inhabitants of the sheltered housing or their visitors.

First instance decision

At first instance the Court found that the Defendant was liable as there was a gap at the side of the path and it was foreseeable that someone may step half on and half off the path and lose their footing.  The Claimant was found to be 50% contributory negligent as the gap was obvious.

The Defendant appealed against the finding of primary liability.  The Claimant did not cross appeal.

Court of Appeal findings

The Defendant referred to the commentary in Clerk & Lindsell on Torts which indicated that:

  • If adequate systems or risk assessment procedures were present then there is unlikely to be liability and

  • That an occupier relying upon professional or semi-professional advice was likely to escape liability.

Kitchin LJ and Bean LJ rejected the Appeal given the facts of the case:

  • The “audit” which had taken place two years previously was not relevant – there was no evidence as to what the drop at the side of the path had been at that time;

  • The hazard created by the drop was obvious and easily rectified post accident.  No professional assistance in managing it was required;

  • On the facts it was reasonably foreseeable that someone would lose their footing in the manner that the Claimant did.

Comment

  • At first glance it may appear surprising that a court was willing to find liability in a claim where the claimant had simply walked off the side of a path.  It is unsurprising that the council chose to appeal such a decision and disappointing that the court of appeal chose to uphold the same.

  • Ultimately it seems that this case turned on its facts – once the court decided that this was a defect and the defect was a breach of the duty under the OLA set out above, then a finding that the council’s inspection regime failed to identify the defect was inevitable.   The court made clear that the question of what is “reasonable in the circumstances” cannot be determined by means of a checklist.        

  • It is not sufficient for there to be a system in place if it is not adequate, on the court’s findings.  Here, although not overtly stated, the weekly inspection carried out by the Defendant cannot have been adequate as the Court found specifically that the drop was an obvious hazard (hence the reduction for contributory negligence) and had not suddenly appeared (hence the finding on liability).  One assumes, therefore, that had the inspection system been adequate the hazard would have been identified and dealt with before the accident occurred. 

  • The adequacy of the system of inspection will depend to a degree upon the transience or otherwise of the hazard. A distinction was drawn between a hazard which had suddenly developed (such as a spillage in a supermarket - Ward v Tesco Stores Ltd [1976] in the Court of Appeal) and a hazard such as this which had developed over time and would, presumably, have been easily identifiable.  

Contact

For further information please contact Liz Harrison on +44 151 907 3419 or liz.harrison@dwf.co.uk or Perry Hill on +44 (0)207 645 9536 or perry.hill@dwf.co.uk.

By Liz Harrison

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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