The recent case of Butcher v Southend-on-Sea Borough Council has provided some useful guidance on the relevance of legal commentary to cases.
Case Details
In 2008, Mrs Butcher was visiting her parents who lived in accommodation provided by the defendant. As she left the building she walked along a communal tarmac path used by residents and visitors to the building. On the left side of the path there was a grassed area; however, there was a drop of approximately two and a half inches where the grassed area joined the path. Mrs Butcher was injured as she was walking along the path and her foot went into this trench.
The defendant’s manager noted, shortly after the accident, that the dry weather had caused the earth to shrink back away from the path. The defendant arranged for repairs to take place. This only required filling the trench with topsoil. It was not a big job.
At the first instance the Judge stated that the only way in which the defendant could properly be said to be in breach of their duty to the claimant was that they did not build up the ground earlier.
The defendant argued that it had complied with its obligations under the Occupiers’ Liability Act 1957 which required them to keep people reasonably safe while on their property. They relied on a comprehensive risk assessment which they had carried out two years before Mrs Butcher’s accident.
Mrs Butcher’s claim against the defendant was successful on the basis that the manager carried out weekly inspections and the caretaker was responsible for the maintenance of the property. The Judge considered that the state of the ground should have been obvious.
The defendant appealed the decision, claiming that the Judge had unreasonably found a breach of duty on behalf of the defendant where there should be none. The defendant relied on passages from the well-known text Clerk & Lindsell on Torts in support of their appeal. This book gives guidance on the factors which are likely to be taken into account when considering whether an occupier is in breach of their duty to keep people reasonably safe.
In its judgment, the Court of Appeal have made it clear that factors listed in legal commentary should not form a checklist which a Judge must go through before determining the issue of liability. They have also commented on the fact that a system of inspection by an occupier should only apply where something develops suddenly, a spillage for example.
In addition, the Court of Appeal commented on the use of risk assessments. The defendant had claimed that they were able to rely on the professional assessment of risks which was carried out two years before the accident. However, they were advised that this was not the sort of hazard which required a risk assessment, as the defect developed over a period of weeks or months and the state of the land was clear and obvious before the accident.
The Court of Appeal dismissed the defendant’s appeal as it was reasonably foreseeable to the defendant that an accident such as Mrs Butcher’s could occur and, therefore, they had failed to keep her reasonably safe.
Comment
It would appear obvious that a defendant to a claim similar to Mrs Butcher’s should be liable for the accident; however, the defendant on this occasion appears to have taken exception to this. In fact, the defect was so noticeable and obvious that, at first instance, the claimant was found 50% contributorily negligent. The claimant did not cross appeal on this point.
While legal commentary can be helpful in assessing cases and the prospects of a claim being successful, they should not be mistaken for definitive law. We have helped many clients recover compensation in accident circumstances similar to these, even in cases where they are the residents of the defendant, and we are experienced in assessing all of the relevant circumstances to an accident rather than simply focusing on guidance from others.
If you have had an accident on someone else’s property which you do not think was your fault, please contact us to see if our Personal Injury team can assist you in pursuing a claim for compensation.