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Kibbler v Somerset County Council

5 April 2007

The issues

Occupiers Liability Act 1984 – trespasser – lighting – chain.

The facts

The Claimant was attending the carnival at Glastonbury on the 15th November 2003. The high street was crowded and the Claimant and her parents tried to find a short cut to the bottom of Glastonbury town. She saw a group of people coming on to Archers Way from what she thought was a side road or a path. She asked her parents to wait on the pavement whilst she tried to find the cut through. Despite the fact that she lived in Glastonbury she stated that the area was unfamiliar to her. The area was very dark and the Claimant said that although there were street lights in Archers Way they were not particularly bright and did not throw much light onto the area. The Claimant went down what she thought was a path and tripped over a chain. The Claimant had in fact walked into the Glastonbury library car park and tripped over a metal chain across the entrance to the car park. The Claimant alleged that the Defendant was negligent or in breach of its statutory duty under Section 14 of the Occupiers Liability Act 1984. The Claimant alleged that the Defendant caused a danger by placing a low chain across the entrance way to the car park and had failed to ensure that the lighting in the vicinity of the library was adequately bright and in such a way that it was obvious that the entrance was part of the car park and not part of a public footpath. The Claimant alleged that the defendant knew, or had reasonable grounds to believe that the Claimant might come into the vicinity of the danger by virtue of the fact that the library car park was adjacent to the foot way and it was foreseeable that a pedestrian could inadvertently wander into the car park in the dark.

The matter came to Trial before the District Judge at the Taunton County Court when Judgment was entered for the Claimant with a finding of 50% contributory negligence.

The Defendant appealed.

The decision

The Judge had found that although there was additional lighting positioned on the wall of the side of the library and which would have shed light onto the chain, it was not working on the night in question. This was the evidence of the Claimant. The Defendant had relied on evidence of the Council’s lighting engineer who had said that there was no complaint in respect of the lighting either before or after the night in question and that on testing the lighting shortly prior to the Trial the lighting appeared to be the same as it was when put up and appeared to be working and that no work had been done to the light between the light being installed and the accident. The District Judge had found that the absence of lighting amounted to an “intermittent danger” which was present when the chain was pulled across the car park entrance and abated when it was not. It was also acknowledged that for the Claimant to move from a lit area on the high street to a dark area where there was a lack of light, would cause the Claimant’s eyes to take some time to adjust and that it was during the process of adjustment that the Claimant fell over the chain. The District Judge had found that the chain constituted a danger due to its height and location.

The Defendant appealed.

The evidence before the Judge demonstrated that the Defendant had placed the chain across the entrance to the car park and had put in a lighting system which, until 10.30pm, lit up the car park so that anyone in the vicinity would see the chain. The Defendant had no reason to know or believe, at the time of the accident, that the lighting system was not working. When the lighting system was working the Judge at first instance had accepted that there was no danger. Having regard to the Judge’s findings of fact the Judge should have concluded that when the car park was lit the chain did not present a danger and that the Defendant had no reasonable grounds to believe that the danger existed. Accordingly, the criteria set out in Section 1(3)a of the Act were not satisfied.

Considering Section 1(3)b of the Act, there was no evidence before the Judge to establish the existence of a group of people who would use the car park as a short cut, whether or not it was illuminated. The criteria set out in Section 1(3)b of the Act were not satisfied.

The Judge had not attempted any analysis of the risk, the circumstances of the case or what would have been a reasonable expectation of protection against the risk. There was no evidence before the Trial Judge of any earlier accidents of complaints about the chain. If the Judge evaluated the evidence and the circumstances of the case she would have concluded that the risk caused by the presence of the chain across the unlit car park was a small one and that it was unlikely that a pedestrian would attempt to find a short cut across the car park without trying to see the way ahead.

On this basis the appeal would be allowed.

For further information please contact Joanne Pruden, jopruden@veitchpenny.co.uk

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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