Back to Basics in Occupiers Liability

The recent case of Burtcher v Southend-on-Sea BC helps to identify those cases where a system of inspection and risk assessments is crucial to a successful defence, and those where it makes no difference because the hazard is plain to see and had been present for some time.

In this case B had been visiting her parents who lived in sheltered housing owned by the local authority. B had fallen whilst walking along a tarmac path that ran diagonally from the rear entrance to the building. Beside the path was an area of patchy grass. The Court accepted that B had fallen when she stepped half on and half off the path.

There was a difference in level between the path and the earth of just over two-and-a-half inches.

The judge found that the edge of the path was clear and did not need to be marked. Shortly after the accident the local authority 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 dip with topsoil to bring the surrounding area up to the level of the path.

The judge at first instance held that the local authority was in breach of its duty as an occupier; it was foreseeable that someone might lose their footing at the edge of the path because of the change of levels. The defect was obvious and easily remedied. B was found 50 per cent liable for failing to note the presence of the hazard.

On appeal the local authority argued that the Judge had given insufficient weight to their reasonable system of inspection and risk assessment, which they believed absolved them of liability. The appeal was dismissed.

The CA held that an adequate system of inspection was only relevant where a hazard suddenly developed, such as a spillage of oil, or yoghurt in the case of Ward v Tesco [1976] 1 WLR 810. Further, the CA concluded that the path hazard was not the kind of hazard that required a professional risk assessment, as with the risk of branches falling from trees (Bowen v National Trust [2011] EWHC 1992 (QB)). Instead it was hazard that was plain to see and was present for some time.

It was a point in favour of the local authority that there had been no previous accidents, but on the other hand the hazard had been rectified after the accident without difficulty or expense. The question for the judge was whether prior to the accident it was foreseeable that someone would inadvertently step off the path and lose their balance because of the drop, and whether the local authority had taken reasonable care to ensure visitors were reasonably safe. There was no error of law.

The Appeal was dismissed.