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Young v Plymouth City Council, Exeter County Court, 26 February 2010

19 March 2010
The issues

Occupiers’ Liability – orienteering marker in public park – whether Claimant reasonably safe – Compensation Act 2006 Section 1.

The facts

On 21st July 2006 Claimant was walking her dog in Central Park, Plymouth. She walked into a small copse which was situated away from the pathways, and was admiring the view and watching her dogs. The Claimant fell when her foot got caught on a 12″ high wooden marker as she turned away to continue her walk.

The marker was part of a permanent orienteering course maintained within the park, which had been in place for some years, which the Claimant said she hadn’t realised was there as she moved off. Subsequently the Claimant alleged that the marker was partially concealed by grass, was hard to see due to its colouring, and was a trap for the unwary. The Claimant also pointed to the fact that the marker had since been replaced by a new post which was 1m high and easier to see, in 2008.

The Claimant relied on guidance produced by Devon Orienteering which advised users of the original course that “the trick is to look for the feature not the wooden post. You won’t see the post until you are quite close to it”. As a result, the Claimant alleged that there had been a breach of the common duty of care under Section 2 of the Occupiers Liability Act 1957 to take reasonable care to see that visitors to premises were reasonably safe for the purposes for which they were invited or permitted to be in the Park.

The Defendant denied that the post had been dangerous, that it presented anything by way of a hidden trap which required specific warning, and that there was any breach of the common duty of care owed towards the Claimant. Evidence from Council employees with responsibility for grass cutting was adduced, as was evidence from Mr Lewis Bean, a retired army officer and civil servant who had been responsible for the re-design of the orienteering course in 2008 and who produced maps for local authorities providing permanent courses. Mr Bean gave evidence that the distance between markers could be considerable, and therefore one would need to look out for features (such as the copse in this case) rather than the marker until one was 25 yards or so away. In this context the guidance did not amount to an acceptance that the marker was a concealed feature which may cause a person to trip.

The decision

The Claimant’s claim was dismissed. HHJ Neligan pointed to the Claimant’s acceptance in cross examination that she had probably been aware of the existence of the post as she approached the copse, and that she had previously been aware that it was there. The Judge also accepted that had the Claimant looked at where she was placing her feet the post would have been plainly visible to her.

The Claimant was the only person who was known to have tripped over this post in the 10 years or so it had been in place. The Claimant had not complained about this or similar posts prior to the accident, nor had any other complaints been received.

The Judge also accepted that the post had not been obscured by grass on the date in question due to the system of weed-killing and grass cutting operated by the Council.

It could not be said therefore to present a source of danger so that the Claimant had not been reasonably safe when visiting the Park on the date in question.

The Court also had regard to Section 1 of the Compensation Act 2006 and observations in Tomlinson v Congleton BC [2004] 1 AC 46 that the impact of a finding of liability on local amenities should be borne in mind when reaching its finding, and that visitors could normally be expected to exercise common sense. No warning was required in respect of obvious dangers such as that presented by walking into the post, applying Staples v West Dorset DC [1995] PIQR P439, CA.

Comments

Brent McDonald of Counsel appeared for Plymouth and compiled this summary, instructed by Marie Macfarlane of Veitch Penny.

Brent can be reached at bmd@rougemonchambers.co.uk and Marie can be reached at mm@vpinsurance.net

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