Occupiers Liability: Courts are not looking for a Counsel of Perfection

Article

04 December, 2018

Guildford CC - Judgment of District Judge Bell

The facts

The claimant had attended a farm attraction for children. She had been playing with her 2-year-old son in the undercover soft play area when they left the area to go the toilets. As she walking along the corridor, she slipped. She alleged that the floor was extremely slippery like the area had been covered in washing up liquid. The claimant sustained a serious fracture to her ankle, which required surgery.

The claimant alleged that the defendant was negligent and/or in breach of section 2 of the Occupiers Liability Act 1957.

The Judgment

On the balance of probabilities, the Judge concluded that the claimant had slipped on a patch of the floor that was wet. It had not been raining on the day in question, but conditions were damp, and it was likely that moisture had been carried into the barn on people's shoes. There was no evidence to suggest that the floor was inherently defective or slippery. Whilst there was some moisture in places, there were no pools or puddles of water.

Prior to the incident, the manager had carried out an assessment of the flooring. She had towel dried the area and had relocated mats from the gift shop to the entrance to remove moisture from people's feet. Warning signs had also been placed within the barn and in close proximity to the accident location.

The defendant was also able to present excellent evidence from an independent witness who was also a visitor to the park on the day and confirmed she did not consider the floor hazardous.

The claimant contended that more should reasonably have been done on the day in question to avoid the incident; in particular, she argued that sawdust should have been applied to the floor and more aggregate should have been introduced. However, the Judge was mindful that the duty under section 2 of the Occupiers Liability Act is not an absolute duty but rather a question of whether reasonable care had been taken to ensure that the claimant was reasonably safe.

The Judge concluded that the steps taken were reasonable in all the circumstances to see that visitors were reasonably safe and he dismissed the claim.

Forbes comment

This occupiers' liability case turned on the measures taken by the defendant to ensure that visitors were reasonably safe when visiting the premises. The Judge commented that it is always possible to say that more could have been done. He noted that since the accident works had been undertaken to the flooring but this did not demonstrate that the occupier had been negligent or in breach of duty, but pointed to a responsible occupier who was horrified that an accident had taken place on their premises. The Court is not looking for a counsel of perfection, the simple fact an accident occurred is not enough to establish liability. To succeed a Claimant must therefore be able to point to a failure to act reasonably to establish liability.

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