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No Liability Where Claimant Cannot Identify Defect

Barnes v Warrington BC

St Helen's County Court - DDJ Maddison

The Claimant alleged that upon exiting her vehicle in the school car park she caught her foot in a pot hole, tripped and fell.

The Defendant denied liability and put the Claimant to strict proof as to her reason for being at the school. The school maintained that there was an area of uneven tarmac at the locus but no trip hazard. Furthermore the Defendant argued that they acted reasonably to ensure visitors were safe in using the premises.

At trial, the Claimant confirmed that she opened the car door to step out and something caused her to fall, she said she had no idea where the accident had occurred and did not look at the surface after the accident to see what had caused the fall but had felt an edge under foot. Both the Claimant and her husband confirmed that they were not present when the photographs of the defect were taken.

In his judgment, the Judge pointed to the fact that neither the Claimant nor her husband could point to what had caused her to fall. As she did not see the hazard and could not describe it, she had failed to prove her case and the claim was dismissed.

Forbes comment

The school owed a duty of care as occupiers to ensure that the surface of the car park was reasonably safe. The test is one of reasonableness and occupiers are not expected to unequivocally guarantee the safety of visitors. The school had in place an excellent system of inspection, whereby it would be unlikely that a hazard would go unnoticed for any length of time.

That being said, the fundamental blow to the Claimant's case was her inability to be able to point to the exact defect that had caused the fall. The burden of proof is on the Claimant to prove her case, and she was unable to do so.

For further information please contact Nick Holgate by email or call 01254 222429.

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