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Clark v Bourne Leisure Ltd, Court of Appeal, 30 June 2011

8 July 2011
The issues

Occupiers Liability Act 1957 – Wheelchair – Step

The facts

The Claimant brought an action against the Defendant following an accident on their premises. The Claimant was disabled and used an electric wheelchair and in September 2006 was on holiday at the Defendant’s holiday park. She visited the Tavern Bar. The bar was arranged on different levels. On one side of the room the levels were connected by a ramp 10 metres long and 1.5 metres wide. On the other side they were connected by two steps several feet apart. At some stage during the evening the Claimant went up the ramp in her wheelchair. Later she wanted to go to the lower level but instead of going down the ramp took the other route. Her wheelchair tipped over and she fell, injuring herself. The Claimant gave no evidence nor were there any eye witnesses called as to the accident. Her niece was called who had attended the scene the following day and had taken photographs. The Judge declared himself satisfied on the balance of probabilities that the Claimant had driven down the step under the mistaken impression that she was about to go down a ramp. In coming to that conclusion he had relied upon the Accident Report Form completed by an employee of the Defendant the day after the accident. The Judge took the view that the difference between the levels having regard to the pattern of the carpet was not apparent. He had noted that there were no markings or warning signs drawing attention to the change in level but only a rubber and metal nosing strip. He found that the premises were not safe for wheelchair users given the absence of signs, hazard tape and the difference in level which could have been designed in a better way. He set the contributory negligence at one third. The Defendant appealed.

The decision

Aside from his formulation as to the Claimant being safe as opposed to reasonably safe, the Judge had stated the correct test. In coming to his decision he had been influenced by two factors; firstly a concession from the Manager that it was difficult to see the change in level at the first step (although in fact the evidence showed that the Manager had made that concession in respect of the second fully carpeted step), and secondly, he had relied on correspondence between the parties which he took to contain a concession from the Defendant that warning signs and hazard tape had been in use and therefore that such measures ought to have been taken.

When assessing whether the steps were reasonably safe for wheelchair users, the Judge had to make his own judgment. What other people thought might be relevant to the issue but could not be determinative.

The Judge was wrong to conclude that the claims about signage and tape in the party and party correspondence amounted to a concession that such measures were necessary. Indeed, the correspondence was at cross-purposes for much of the time. The judgment could not stand. The Court would consider the matter itself rather than send it back for re-trial. On looking at the photographs the difference in level was sufficiently apparent. No one looking at the scene shown in the photographs could reasonably think that they were approaching a sloping ramp. The general layout made the change in level obvious. There was a ramp that was available entirely safe for wheelchairs. The steps were not safe for wheelchairs but they were clearly visible. Any wheelchair user taking reasonable care would have avoided using them. The appeal was allowed.

Claim dismissed.

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