Occupiers Cases - The System of Inspection Must be Effective!

Article

02 December, 2014

Butcher v Southend on Sea Borough Council CA (Civ Div) (Kitchin LJ, Bean LJ) 30/10/2014

In this Court of Appeal case, it was found that to successfully defend a claim for breach of the Occupiers Liability Act, it is not sufficient for occupiers to claim that they operate a system of inspection.

The accident took place on a path in a sheltered housing complex owned by the defendant local authority. The claimant lost her footing at the edge of a path where the earth had shrunk away leaving a difference in levels between the path and an area of patchy grass of just over two and a half inches.

At first instance, the Judge found 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. The Judge however, held that the Claimant was 50% contributorily negligent.

The Local Authority appealed the decision, they argued that the judge had given insufficient weight to the fact that the manager and caretaker of the accommodation had a system of inspection in place and had carried out a risk assessment. They also relied on Clerk and Lindsell on Torts where it was said that an occupier who reasonably acted on professional or semi-professional advice was likely to escape liability i.e. a disability discrimination audit had not found anything wrong with the path.

The Court of Appeal was not convinced and dismissed the appeal. They found that the issue of a system of inspection was relevant where a hazard suddenly developed, such as a spillage of oil on the path. The hazard at the edge of the path had not developed within minutes or hours or even days. The drop at the edge of the path was obvious and had not been detected by the manager or the caretaker. The hazard could have been rectified without difficulty or expense. The Court of Appeal therefore concluded that the Judge was not wrong to find that the local authority had not taken such care as was reasonable in all the circumstances to see that visitors were safe.

Forbes Comment

This case demonstrates that defendants can not defend cases based purely on the existence of a system of inspection alone. Defendants must also be able to prove that the said system of inspection works and is effective. The Court of Appeal has sent a clear message that it will show little sympathy where hazards are longstanding and plain to see.

For further information please contact Sarah Wilkinson on 01254 222440 or email sarah.wilkinson@forbessolicitors.co.uk

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