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Maloney v Torfaen County Borough Council, Court of Appeal, 6 December 2005

14 March 2006
The issues

Occupier’s Liability Act 1984 – Occupier’s Liability Act 1957 – Claimant Slipping Or Stumbling Over Unfenced Retaining Wall

The facts

The Claimant on the night of 29th/30th January 1999 was taking a shortcut from Blenheim Road to the entrance of his flat. As he did so, the Claimant slipped and fell from a sloping grass bank on to the concrete floor of a pedestrian subway immediately next to the bank. He was found there shortly after midnight. His injuries involved significant brain damage.

The matter came before the Judge on the issue of liability only. The Claimant fell very close to the block of flats where he lived. The grass bank was a few feet wide. Immediately to its right was a retaining wall forming one side of the subway. At that point there was a drop of several feet to the subway floor. There was no fence or anything of the sort along the edge of the drop. The Claimant remembered nothing of the accident and there had been no eye witness evidence.

On the evening in question the Claimant had been out drinking with his nephew at a pub on the Blenheim Road. He had drunk 3 to 4 pints at least whilst in the pub. When he was found in the underpass the person who found him took the view that he was very drunk and medical records gave the same impression.

There was fencing along the wall on the edge of the subway on the other side. There were two previous accidents. The first appeared to be related to a fall from the bridge going over the subway and not one of the banks on either side; the second relating to a fatal accident when someone fell on the other side of the underpass. These incidents happened in October 1998.

The Judge at first instance took the view that it would have been a council of perfection even if the Defendant should have responded by putting in railings at that point for them to have responded in time for the Claimant’s accident. The Judge dismissed the claim. The Claimant appealed to the Court of Appeal.

The decision

The Judge had found that no duty arose under the 1957 Act because the Claimant could not show that he had any permission to be on the grass embankment and that conclusion could not be challenged.

There was no duty of care under the 1957 Act. A proper access path had been provided. The grass bank was not laid out as an access. The bank was intended only as landscaping.

1. Was there a duty under the 1984 Act?

The Judge could not be criticised for holding that the Claimant’s accident met the threshold condition, namely that the accident happened as a result of a danger due to the state of the premises.

2. Where the Respondents aware of the danger or did they have reasonable ground to believe it existed?

The Judge was entitled to dismiss the two previous incidents for the reasons he had given. Moreover the danger was not so obvious except perhaps in the case of a drunk man walking close to the edge at night.

The Judge did not have reasonable grounds to believe that someone was in the vicinity of the danger or might come into the vicinity of the danger.

Appeal dismissed.

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