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Occupiers’ Liability: restaurant not liable for visitor's fall

Wood v Smith & Western Restaurants
April 2017
Eastbourne County Court

James Lee of DWF acting on behalf of the defendant on instructions from NIG

James Lee reports on the successful defence of an occupiers' liability claim which involved a claimant falling at a restaurant. The case highlights the important 2016 Court of Appeal decision in Debell v Rochester Cathedral which revisited the meaning of 'reasonable foreseeability'. Wood v Smith & Western Restaurants (2017).


The claimant was attending a Christmas work night out at the defendant's Wild West themed restaurant. The restaurant had been converted from an old railway station and had retained its original wooden floor boards. As such, the floor boards were not completely flat and there were gaps between the individual boards in some sections. As the claimant walked through the restaurant she fell forwards, fracturing her arm.

CCTV footage identified the claimant falling but the footage was not clear as to what was causative of her fall. The claimant's pleaded case was that the fall was due to the unevenness of the floorboards and the gaps between the floor boards. The claimant's case was brought under s.2 Occupiers' Liability Act 1957, alleging that the fall was due to the uneven floor and that the premises were not reasonably safe.

In rebuttal, the defendant argued that the floor was not dangerous and that there was no defect. Further, even if the court were to find that the flooring constituted a defect, then it was only minor. The restaurant had significant footfall and there had been no previous incidents. Further, the flooring was in-keeping with the theme of the restaurant and character of the building and as such to relay the flooring would be damaging to the business, both economically and commercially. The defendant also pleaded that the claimant had consumed alcohol on the night and was wearing wedge heeled shoes. 


During cross examination the claimant conceded that she had drunk a pitcher of beer (three pints or so) and was wearing three inch wedge heels. She could not recall what she tripped on but stated that she felt her foot hit something. That was different to her witness statement and her pleaded case. The judge was presented with photographs of the flooring which he considered looked old, but he could not see any appreciable unevenness from the photos, although he could see gaps.

The defendant's system for dealing with hazards was a visual inspection with employees instructed to be vigilant in respect of spillages and to attend to them straight away. There was no documentation to record the system however.

When coming to finding of facts, the judge did not consider that the floor was causative of the fall and considered that the claimant most likely lost her balance. He did not find the flooring to be defective, but even if he was wrong on that point, it could only be a very minor defect which was not such sufficiently serious that it would need to be rectified. He considered that the flooring could not be said to be a real source of danger, and referred to the decision in Debell v Rochester Cathedral [2016] EWCA Civ 1094 confirming that the duty is to only make the premises reasonably safe.

In concluding his judgment he commented: "Was it a danger as such that would cause the occupier to take steps? In my view looking at facts, it was not. The fact the claimant had an injury is unfortunate and sad. But looking at the case as a whole, the claimant has not proved her case."

As such the claim was dismissed with an order for claimant to pay the defendant's costs. 


This is a useful judgment and it is encouraging to see that the courts are following the sensible decision in Debell. The key point being that minor defects that are not dangerous do not have to be rectified by the occupier. When faced with a trip or slip claim under the OLA 1957 it is always important to establish what it is that actually caused the fall and if the claimant cannot be sure or their evidence is inconsistent then the court may look for alternative scenarios. In this case, the defendant did not plead that the claimant lost her balance, yet the court came to that conclusion. Secondly, it is critical to consider what the "defect" is. Is it sufficiently serious that if the defendant knew, or ought to have known about it, then he would have or should have rectified it? If the defect only minor, the defendant has a real chance of defending such claims.


For further information please contact James Lee, Associate on 0151 907 3047 or at james.lee@dwf.law 

By James Lee

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