The Queen’s Bench Division has dismissed a claim for damages under the Occupiers’ Liability Act 1957 in Oonagh Murphy v Milton Keynes Parks Trust Ltd and Milton Keynes Council [2021] EWHC 2917.
The claimant fell when walking across the forecourt of the One Stop shop owned by the first defendant. The second defendant was the highway authority responsible for the pavement which ran adjacent to the shop forecourt. There was no dispute that the claimant fell and injured herself but both defendants denied liability.
The first defendant was the occupier of the forecourt for the purposes of the 1957 Act and so under s2 owed a duty to all visitors to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which they are invited or permitted by the occupier to be there. The second defendant had a duty to maintain the pavement under s41 of the Highways Act 1980, and while the section does not provide for a standard of maintenance, it was agreed that the standard is whether the highway is dangerous – Jones v Rhondda Cynon Taff CBC [2009] RTR 13.
The forecourt comprised a large block-paved area where cars can park, with a marked area to one side for pedestrians: it sloped to the pavement, which was also block-paved. A community centre was also at the location. The area was busy being used by a whole range of people, young and elderly. The claimant tripped when placing her foot in a depression in the surface of the forecourt/pavement which caused her to stumble and fall.
The court was satisfied that the depression was a maximum of 27mm in depth over a minimum diameter of 500mm with no sharp edges and accepted the defendants’ evidence that no repairs had been carried out to the depression since 2015. 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”. There had been no complaints to the first defendant about the area since 2015.
The court dismissed the claim, finding that the depression was significantly less than the second defendant’s guidance for actionable defects and that the gradient was less than would be found across drop kerbs across the borough. The depression had existed since at least 2012 and, despite the area being a busy thoroughfare for the local community, there had been no other recorded accidents or falls at the location.
The condition of the forecourt was reasonable, and the claimant was reasonably safe when walking across it. The pavement was not dangerous: it was reasonably passable for the pedestrians moving across it. To expect the defendants to maintain the forecourt or pavement in a perfect condition without any slightly raised edges or depressions would not be realistic or practicable.
Louise Clark is a property law consultant and mediator
