Occupiers’ Liability Act 1957 – Common duty of care – Foreseeable risk – Claimant seeking damages for injuries suffered as result of fall on shop forecourt – First defendant owner/occupier and second defendant highway authority denying liability – Whether first defendant doing all reasonably required to ensure visitor reasonably safe – Whether second defendant highway authority maintaining highway to acceptable standard – Claim dismissed
The 64-year-old claimant stumbled and fell as she left a shop on Springfield Boulevard, Milton Keynes and was walking back across the forecourt to her car. The claimant tripped when placing her foot in a depression in the surface of the forecourt/pavement which caused her to fall.
The first defendant was the owner/occupier of the shop forecourt. The second defendant was the highway authority for Springfield Boulevard, which ran adjacent to the shop forecourt. The forecourt comprised a large block-paved area where cars could park, with a marked area to one side for pedestrians: it sloped to the pavement, which was also block-paved. There was also a community centre which had a nursery/children’s play area, and sheltered accommodation for the elderly behind it. To one side of the forecourt was an area with painted white lines and marked “no parking”, which was intended as an area for pedestrians.
The claimant brought an action for damages under the Occupiers’ Liability Act 1957. There was no dispute that the claimant fell and injured herself or that the first defendant was the occupier of the forecourt for the purposes of the 1957 Act. As the occupier it owed a common duty of care under section 2 of the Act. It was also common ground that the second defendant was the highway authority responsible for the pavement, pursuant to section 41 of the Highways Act 1980. However, both defendants denied liability.
Held: The claim was dismissed.
(1) As the occupier, the first defendant owed a common duty of care under section 2 of the 1957 Act. The test was whether the occupier had done all that was reasonably required to ensure that the visitor was reasonably safe: Beaton v Devon County Council [2002] EWCA Civ 1675.
Section 41 of the 1980 Act did not provide for the standard of maintenance required but it was agreed that the standard was whether the highway was dangerous. The duty of the second defendant was not to maintain the highway to such a standard as in effect to guarantee the safety of its users; it was absolute only in the sense that it was not merely a duty to take reasonable care but to maintain the highway to an objective standard. The highway had to be maintained in such a state of repair that it was reasonably passable for the ordinary traffic of the neighbourhood without danger caused by its physical condition: Jones v Rhondda Cynon Taff County Borough Council [2009] RTR 13 followed.
(2) Foreseeability of harm would not of itself entail the conclusion that the highway was unsafe. It had to be the sort of danger which an authority might reasonably be expected to guard against. It was important that the law of tort should not impose unreasonably high standards, otherwise scarce resources would be diverted from situations where maintenance and repair of the highways was more urgently needed. There had to be a sensible balance or compromise between private and public interest. The question in each case was whether the particular spot where the claimant tripped or fell was dangerous. But if the particular spot was not dangerous, it was irrelevant that other spots nearby were dangerous or that the area as a whole was due for resurfacing: Mills v Barnsley Metropolitan Borough Council (1992) PIQR 291, James v Preseli Pembrokeshire District Council [1993] PIQR 114 and Gorringe v Calderdale (2004) 1 WLR 1057 applied.
(3) Unlike a sharp-edged trip hazard, it was more difficult to exactly measure a depression. It made a difference at what point in the depression one measured the depth, the positioning of the ruler across the depression and also the length of any ruler placed across the depression, particularly in this case where there was a slope running down to the depression. It was important to consider if the measurement was really measuring the depression or merely just a continuation of a slope.
The Milton Keynes Code of Practice for Highways Safety Inspections, January 2017, provided guidance for inspectors that “a depression will be identified as an actionable defect when it is 40mm or more in depth and has a maximum horizontal measurement less than 300mm”. On the balance of probabilities, there was a depression of a maximum of 27mm in depth over a minimum diameter of 500mm in the present case.
Of relevance, but not determinative, to liability was also whether there had been previous accidents or problems caused at the location of the accident. Moreover, there was no evidence that the depression had resulted in any other trips or accidents prior to the claimant’s fall, despite there being a depression at the boundary of the forecourt/pavement since 2012.
The depression was not particularly significant, being only a maximum of 27mm in depth and a minimum of 500mm in diameter. That was significantly less than the Code of Practice guidance for actionable defects. The gradient was less than would be found across drop kerbs across the borough. Despite this being a busy thoroughfare for the local community, with all kinds of pedestrians, including children and the elderly, there had been no other recorded accidents or falls at the location.
(4) Neither of the defendants could be expected to maintain the forecourt or the pavement in a perfect condition, without any slightly raised edges or depressions. Such a high standard for either defendant would not be realistic or practicable. The purpose for which the claimant was invited onto the forecourt was for commercial purposes to go to the shop. In all the circumstances, the condition of the forecourt was reasonable to see that the claimant was reasonably safe when walking across the forecourt to the shop and back to her car. The pavement, that being the highway, was not dangerous. It was reasonably passable for the ordinary traffic, that being pedestrians moving to/from the forecourt to the pavement and along the pavement, without danger being caused by the condition of the pavement. Accordingly, the claim would be dismissed.
Sinclair Cramsie (instructed by OH Parsons LLP, of Slough) appeared for the claimant; Thomas Banks (instructed by Clyde & Co) appeared for the first defendant; Jack Harding (instructed by DWF LLP) appeared for the second defendant.
Eileen O’Grady, barrister
Click here to read a transcript of Murphy v Milton Keynes Parks Trust Ltd and another
