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Esdale v Dover District Council, Court of Appeal, 15 March 2010

13 May 2010
The issues

Occupiers Liability – trip – inspection system – standard of care.

The facts

The Claimant lived in a flat, known as York House, in Dover and owned by Dover District Council. On the 31st May 2006 (having lived in the flat for about 8 months) she tripped and fell on a pathway leading to the building entrance. The pathway was about 4 feet wide and was bounded on one side by metal railings and on the other side by shrubs. The path was made partly of concrete and partly of tarmac. At the point where the tarmac met the concrete there was a change of level, like a small step running at a slight angle across the width of the path. Mrs Esdale had said in evidence that she had previously noticed the change in level but had not thought it was dangerous, although she considered that the path as a whole was dangerous. She had not reported it to the Council. After the accident she did report the condition of the path.

The Council employed an inspector to check the premises. He said in evidence that as a rule of thumb, he would report for repair a defect more than 3/4 inch in height. This was not a strict rule and was subject to other factors. He had looked at the footpath on a number of occasions in the previous 5 years and had not regarded it as requiring attention. He had not taken any measurements at any time. After the accident, he made a note referring to the change of level as a trip hazard and on the 15th June a concrete fillet was inserted along the side of the change of level to provide a sloping surface.

The Judge found that the height of the defect was between 3/4 inch and 1 inch. He also found that there had been one complaint about the condition of the path about 25 years ago. Although some users of the pathway were elderly and disabled, there was no evidence that anyone else had suffered a fall on the pathway. The Judge dismissed the claim on the basis that the difference in levels was clear to see and that the defect was minor.

The Claimant Appealed.

The decision

The Judge had relied, in coming to his conclusion as to whether or not the pathway was reasonably safe, on Mills v Barnsley Borough Council. Initially the Claimant had suggested that the Judge had been wrong to rely on this authority in the context of the Occupiers Liability Act, but she now accepted that the Judge had not misdirected himself by relying on the case. The Claimant argued that where the Council had set a standard to be observed, namely to repair defects of more than 3/4 inch, where that policy was not complied with the Council had necessarily failed to take reasonable care and was in breach of its duty of care.

This was not correct. The test was whether in all the circumstances the Council had taken such steps as were reasonable to see that visitors were reasonably safe. That test did not depend upon what standard of safety the Council had set itself as a matter of policy. The test was an objective one. What the Council set as a policy was not determinative, although it was not irrelevant. The conclusion which the Judge had reached was one that he had been entitled to reach.

Appeal dismissed.

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