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DOES SIZE REALLY MATTER ?
ADAM DAWSON – 9 GOUGH SQUARE
Cricket fans have Lords; Tennis fans have Wimbledon and we are led to believe that the football fans amongst us will soon have the new Wembley; however for the humble personal injury tripping accident specialist, home is Liverpool County Court.
Looking back on my recent trip I should have spotted the signs sooner; in most courts it is the local counsel who is on first name terms with the court usher, in Liverpool it was the Council’s Highway Inspection Officer who was. In most client conferences I generally consider that I know more (often only slightly) than the client about the state of play of the relevant piece of law, however here my client appeared rather too well versed on the application of s.41 of the Highways Act 1980 and s.2 (2) of the Occupiers Liability Act 1957.
In the limited space available I shall deal briefly with a few interesting cases relevant to tripping and slipping claims under the two statutes mentioned above.
s. 41 (1) of the Highways Act 1980 needs little explanation, it states: “The authority who are for the time being the highway authority for a highway maintainable at public expense are under a duty…to maintain the highway.”
In practice it is very easy to become more concerned with the inconsistencies in the medical records or analysis of the usually complex and misleading inspection records, however many judges are failing to reach this stage, rejecting cases for failing to get over the primary issue of there being an actionable hazard.
There remains no ‘mechanical jurisprudence. Lord Justice Steyn stated in Mills v Barnsley Metropolitan Borough Council (1992) 1 PIQR P291 that it was dangerous to apply a rule of thumb in relation to what is dangerous.
The best recent example of dealing with what constitutes an actionable hazard is Galloway v London Borough of Richmond Upon Thames (2003) QBD 20/2/2003. In Galloway the claimant had fallen a few yards from her home. She had stepped onto a broken kerbstone and fallen over suffering injuries to her ankle. At first instance the Recorder found that (i) the defect had been dangerous; and (ii) that the defendant was in breach of its duty under s.41 to maintain the highway. This decision however was overturned on appeal. Mr Justice Eady held that the “gap had given rise to some risk of harm but, on the evidence, could be classified as “unremarkable” and not giving rise to a “real source of danger”.
He went on to add that “the Recorder had applied the wrong test as foreseeability of harm in itself did not necessitate repair. It had been essential to consider whether that particular risk was of a low order and where the balance between the private and public interest should be struck.” Mr Justice Eady concluded by stating that the “Recorder had tilted the balance too far in favour of the pedestrian.”
In tripping/slipping cases with respect to breaches under the Occupiers Liability Act 1957, the first question that must be asked is ‘are the premises safe?’ s2 (2) states that the duty is to: “take such care as in all the circumstances of the case is reasonable to see that the visitor with be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.”
In Manning v Hope (TLR 18/2/00) the claimant was returning from the toilet of the defendants hotel when she fell on 2 steps. Her claim was formulated under the 1957 Act, alleging that she had failed to see the steps because of inadequate lighting. There was a secondary issue that as a result of the inadequate lighting she had failed to see the handrail. At first instance the claimant succeeded on the basis that it was reasonably foreseeable that the lack of a handrail would cause an accident of the sort that that the claimant suffered. However the Court of Appeal said that the Recorder has failed to ask whether the premises were unsafe. They went on to state that all steps are a potential hazard but that the Recorder had made no finding that these steps were unsafe. There was no evidence of a defect and that ultimately findings on foreseeability and causation were not enough without a finding that the premises were unsafe.
The second question is whether there is a ‘foreseeable risk of injury?’ The Court of Appeal held in Nessa v Walsall Metropolitan Borough Council (unreported) CA 18/12/00 that the test to be applied was whether a reasonable person would have considered, in that case, a 1 in 4 slope in a car park, to be a real source of danger. The emphasis therefore being not on the subjective test of the ‘actual’ claimant but taking the objective approach to what a ‘reasonable person’ would constitute to be a real source of danger.
The final issue is the degree of the risk. The risk must not only be foreseeable but there must also be a significant risk of injury (Fryer v Pearson CA TLR 4/4/00).
This three pronged approach to s.2 (2) was considered fully by Mr Justice Harrison QC in Ingram v Davison-Lungley QBD 7/4/00 (unreported) where the defendant was the owner of a swimming pool in which the claimant was allowed to use. The claimant slipped on the top step of the pool as she entered it. The findings of fact indicate that the claimant had initially tried to enter the pool facing forwards but had changed her mind and twisted around halfway through. It was during the attempt to turn around that the injury occurred with her slipping and landing on the top step. It was held that there was nothing inherently wrong with the steps and therefore the premises were not unsafe. Further, the claimant had adopted an unusual way to enter the pool for which there was no duty on the defendant to warn her not to. There was no foreseeable risk of injury and that any risk would in any event not have been a significant risk of injury.
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