The different burdens of proof in “highway tripping” and “shop slipping” cases

mark_henley_ By Mark Henley

There is an important difference in the burden of proof between tripping accidents on highway and slipping accidents in shops.

Although these categories of claims are often bracketed together as “slipping/tripping” claims, it is useful for both claimants and defendants to note the following distinction: that for “shop slipping” the claimant retains legal burden of proof, whereas for “highway tripping” once the claimant has proved a failure to maintain, the burden of proof passes to the Highway Authority, to establish a defence of having taken reasonable care.

Shop slipping cases

In these cases the legal burden of proof rests throughout on the claimant, to establish negligence or (broadly equivalent) breach of statutory duty under section 2 of the Occupiers’ Liability Act 1957.

The Court of Appeal in Ward v Tesco Stores Ltd [1976] 1 All ER 222 held that:

If an accident does happen because the floors are covered with spillage then… some explanation should be forthcoming from the defendant to show that the accident did not arise from any want of care on their part; and in the absence of any explanation the judge may give judgment for the plaintiff. Such burden of proof as there is on defendants in such circumstances is evidential, not probative. The trial judge thought that prima facie this accident would not have happened had the defendants taken reasonable care… He was justified in taking that view because the probabilities were that the spillage had been on the floor long enough for it to have been cleaned up by member of the staff.

The claimant, however, retains the legal burden of proof of establishing that his injury was suffered as a result of a failure to take reasonable care by the defendant: so that ultimately the claimant must be able to persuade a court that had reasonable care been taken by the defendant the claimant would probably not have suffered the accident.

An example

This is well illustrated by a hearing on 13.8.14 in the Stoke on Trent County Court before HHJ Main QC in which I represented the claimant in a shop slipping case.

The Judge found that the defendant could prove on the basis of cleaning records and on the basis of the witness statement of its janitor (both disputed by the claimant) that on the balance of probabilities it probably had exercised reasonable care for the claimant’s safety (by way of a documented system of hourly floor inspection by a janitor and also a “clean as you go” system operated by all staff).

The Judge also found, specifically, that the area of the shop where a slipping accident was documented as occurring at 2:40 PM was probably properly inspected by the janitor and found to be free of any hazard at 2:36 PM.

On this basis the judge held that even if he was wrong that a system of hourly inspection by a janitor (as well as the “clean as you go” policy) constituted taking reasonable care, so that in fact a second janitor should have been employed and more frequent floor inspections should have been carried out, it was not probable in any event that a second janitor would have spotted the slipping hazard in the 4 minutes between 2:36 and 2:40 PM, so that the claimant could not meet his burden of proof in any event.

Highway tripping cases

In cases of tripping on the public highway, the claimant does have to establish a failure to maintain the highway, constituting a breach of statutory duty under section 41 of the Highways Act (“the Act”) by the Highway Authority.

To do this the claimant need only prove that, on the balance of probabilities, the part of the highway where the accident occurred was not reasonably safe, and that the accident was caused by the dangerous condition of the highway.

If the claimant can prove this then the legal burden of proof passes to the Highway Authority, to prove that it has a statutory defence under section 58 of the Act, that it took such care as in all the circumstances was reasonably required to secure that the highway was not dangerous for traffic.

Unless the Highway Authority can meet this burden of proof then the claim will succeed, without the claimant having to prove the timing of, or the reasons for, the defect in the highway arising, and without the claimant having to prove that the accident would probably not have occurred had reasonable care being taken by the Highway Authority.

Example

This is well illustrated by a case on 28.8.14 in Derby County Court before District Judge Williscroft, in which I represented the claimant in a highway tripping case.

The claimant was injured by defective manhole cover, which it was agreed constituted a failure to maintain the highway under section 41 of the Act: but could put forward no evidence as to how long the defect had been present, or even whether it was visible (before the manhole cover was stood on).

The Highway Authority asserted that it had a reasonable system of annual inspection of the footpath where the manhole cover was located: but it’s witness (whose statement asserted that he had carried out, on foot, the last inspection before the accident) conceded on cross-examination that the inspection report document which he asserted was proof that he inspected this footpath was probably not prepared by him; and that he was therefore probably mistaken in his belief that he had carried out the last inspection before the accident; and that the inspection report document, on its face, showed that it was probable that the highway inspector who had carried out the last inspection before the accident had done it only from a moving vehicle: and that such an inspection could not have been a reasonable one, because this section a footpath was some distance from the nearest road and not properly visible from a moving vehicle.

The District Judge gave judgement immediately, on the basis that on this evidence the Highway Authority could not meet its burden of proof in establishing a defence.

Advertisements

3 comments

  1. Sharon Paton · · Reply

    Have you considered comparing the burden of proof applied in a recent “highway repair” case?
    Paton v Devon County Council: http://www.bailii.org/ew/cases/EWHC/Admin/2013/1539.html
    In this case, once the claimant had proved that a highway existed over Glebe land as a footpath prior to 1949; the burden of proof did not then pass to the Highway Authority, to establish a defence for failure to maintain.

    The complainants applied to the Crown Court for an order to repair highway under Section 56 of the Highways Act 1980. The complaints, as laid in paragraph 1, “There is an ancient public highway known as the Glebe Yard to Kimber Road path in the Parish of Northlew, which connects with public roads at each end.” (2) The said way is out of repair by reason of the surface of the way being defective and disturbed at the origin of the path.

    The preliminary hearing determined that the questions for this court are whether the highway asserted by the complainants to exist did, or does, on the balance of probabilities, exist; if so, what order requiring the respondents to maintain that highway should be made?

    At the following hearing the Council admitted that there is a footpath over former Glebe land, and it passes through a hedged track (parcel 342 on maps of the area) and enters Glebe Yard from the West. Thereafter, however, it exits according to the definitive plan through a gap between the Complainants’ cottage and outbuilding. The Recorder found that there was a footpath to be maintained by the Devon Council from Kimber Road to Glebe Yard and exiting through “the gap”. The Recorder dismissed the complaint and the case proceeded by way of case stated.

    The question was not whether the Recorder had made a wrong decision but whether he had inquired into and decided a matter which he had no right to consider. The Claimants contention that a court in determining under this section whether the Glebe Yard to Kimber Road path was in existence as a public footpath prior to 1949 and is out of repair; the court should only determine the question of whether the alleged way is a highway that the respondent is liable to maintain and should put in proper repair. The court’s function under Section 56 of the Highways Act 1980 is not to determine whether there is a highway over adjacent land as well, or as a substitute and decide the likelier alignment; that is the function of their alternative application under Section 53 and schedule 14 of the Wildlife and Countryside Act 1981.

    The Recorder’s questions upon which the opinion of the High Court was sought:
    1. Was the procedure in the Crown Court the proper vehicle for the establishment of the existence of a right of way over Glebe land?
    2. If so was there ever as a matter of fact or law an ancient highway for all purposes over the line advocated by the claimants between Kimber Road to the exit from Glebe Yard to Station Road?
    3. Can the doctrine “once a highway always a highway apply” when the claimed route is a footpath clearly dedicated by proper statutory process after 1949?
    4. Did the Recorder err in law in making a finding of fact as to the nature and direction of the footpath, using all the available evidence and a proper interpretation of the maps and in the absence of any proper evidence of user?

    The High Court judge found that usage by the public of the definitive route exiting from Glebe land is enough, and attention should not be focused on dedication by the landowner over whose land the highway lies and capacity to dedicate. The Judge said that the Recorder was entitled to dismiss the complaint, on the basis as recited at paragraph 16 of his judgment that the complainants could not meet their burden of proof in establishing that A to G over adjacent land was not dedicated to the public. He concluded his judgment:

    “The result was that, by reference to section 56 of the Wildlife and Countryside Act 1981 to which I have referred, that statement is conclusive evidence. I understand that in other proceedings the Patons may be seeking to attack that conclusion by proceedings or otherwise by reference to Schedule 14 of the Act, but for the purposes of my conclusion, which is whether the Recorder can be said to have erred in law in reaching the conclusion, insofar as it was relevant to his decision, that there was a highway maintainable at public expense between A and G as well as between G and B and then onwards from B to F, and not between B and C, I see no possible basis in law upon which he can be said to have erred in reaching that conclusion; namely, a conclusion that either conclusively or otherwise A to B was a public right-of-way.

    In those circumstances, this appeal is dismissed.

  2. […] via The different burdens of proof in “highway tripping” and “shop slipping” cases | Zenith PI. […]

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: