When a system of inspection simply isn’t enough.

By Justin Crossley

Butcher –v– Southend on Sea Borough Council [2014] CA (Civ Div) 30/10/2014 is something of a novelty.  A successful tripping claim.

The circumstances of the claim are as follows.  The Claimant had been visiting her parents who had lived for some years in sheltered housing owned by the Defendant.  The Claimant’s parents’ accommodation had a back entrance, which was approached by way of a tarmac path, beside which were an area of patchy grass.  There was a difference in level between the path and the earth of approximately two and a half inches.  At trial the Judge found that the edge of the path was clear and did not need to be marked.  He accepted that the Claimant had stepped half on and half off the path which has caused her ankle to cockle and for her to fall.

Shortly after the accident the Defendant inspected the area, concluded that dry weather had caused the earth to shrink from the edge of the path and instructed contractors to fill in the gap so that the path and the surrounding area were level.

The Judge found that the Defendant was in breach of its duty as an occupier.  He went on to hold that it was foreseeable that someone might lose their footing at the edge of the path because of the change of levels.  The Judge found that the defect was easily remedied.  However, he found that it was an obvious hazard and if the Claimant had been paying proper attention the accident would not have happened and therefore her damages were reduced by 50% for contributory negligence.

The Defendant argued that the Judge had given insufficient weight to the fact that the manager and caretaker of the sheltered housing had a system of inspection.  The Defendant also relied on Clark and Lindsell on Tort where it said that an occupier who reasonably acts on professional or semi-professional advice was likely to escape liability, whereas failure to perform an adequate risk assessment might well tip the balance in favour of liability.

The Defendant appealed.  The Court of Appeal dismissed the appeal.

The Court of Appeal held that the issue of a system of inspection was relevant where a hazard suddenly developed, such as a spillage in a supermarket –  Ward –v- Tesco Stores Limited [1976] 1WLR810 considered.  The Court accepted that the hazard at the edge of the path had not developed within minutes or hours or even days.  Nor was it the kind of hazard, such as a risk of branches dropping from trees, which required a professional risk assessment.

The Court of Appeal held that the drop at the edge of the path was obvious and had not been detected by the manager or the caretaker.  The Court went on to find that Clark and Lindsell was not a checklist.  They held it was a point in favour of the Defendant that there had been no previous accident, but on the other hand the hazard had been rectified after the accident without difficulty or expense.  The question for the Judge was simple, whether before the accident it was foreseeable that someone would inadvertently step off the path and lose their balance because of the difference.  It could not possibly be said that the Judge was wrong to find that this was foreseeable and that the Defendant had not taken such care as was reasonable in all the circumstances to see that visitors were sufficiently safe.

Butcher may not lay down any general principles, as it was decided on its facts, but it is off assistance from  a Claimant’s perspective in demonstrating that an occupier cannot simply defeat a claim by demonstrating they have in place a system of inspection.  Any system relied on will need to be shown to be effective.  Further it serves to distinguish between the approach the Courts should adopt to trip/slips hazards which are temporary or occur quickly and those hazards that are of a more longstanding nature.

Tags: Accident, Damages, Justin Crossley, occupier's liability, slip, trip, tripping accidents