UK: "Inspecting" How To Run A Successful Defence

Last Updated: 7 April 2011
Article by Tony Cawley

In these two cases, we examine how effectively to defend occupiers' liability claims based on an adequate system of inspection of the accident site designed to detect developing hazards.

Roe v Hampshire County Council, Portsmouth County Court (2010)

On Saturday 29 March 2008, Mrs Roe attended an out of hours function, an amateur dramatic production being held in the main hall at the Brookfield Community School, Southampton, when she sustained a serious injury to her left little finger.

During the evening performance, the claimant had gone outside, via a set of fire doors which formed an access route, to get some fresh air.

It was accepted by all parties that the weather on that day was extremely windy and as she was re-entering the hall, the wind caught the fire door, causing it to swing to with force, catching her finger, severely injuring it. The terminal phalanx of the left finger was subsequently amputated.

The claimant's case

The claimant claimed breach of duty under the Occupiers' Liability Act 1957, against the local authority, as owner/occupier of the school. The claimant's primary claim was that the local authority, or its employees at the school (for which it was vicariously liable), failed to maintain the door hydraulic closer mechanism properly. It did not prevent the door from closing rapidly as it was meant to, she alleged.

The claimant called a number of witnesses in support of her claim including one who was a builder by trade. All of the witnesses gave evidence in their statements that the door was dangerous.

The defendant's case

The defendant relied on the witness evidence of two staff who were employed by the Community School as site managers.

Each gave evidence that there was in place a fully-effective system of twice daily inspections, and a reactive and proactive maintenance programme. As part of the twice daily inspections, performed at the start and end of the school day, the site managers would open and close each door to check them.

The judgment

The judge held that the defendant had discharged its duty concluding that whilst it was evident that the door did close more quickly than other similar doors, this did not make it inherently dangerous.

The judge relied on the evidence of the builder, called on behalf of the claimant, and found that he of all people would have noticed if the door closer was defective and would have likely reported it/secured it. The witness did nothing.

The claimant's witnesses accepted in cross-examination that they did not consider the door was dangerous before the incident and that it was only with hindsight that they did consider it to be dangerous.

The door closer mechanism had been fitted in 2001/2002 and had a working term of six/seven years. Therefore, at the date of the accident it was likely to be approaching the end of its term, not necessarily having reached it.

The claim was dismissed.

Comment

  • Local authorities own/occupy a large number of premises that may expose members of the public to the risk of injury. If such premises are subject to a regular system of inspection/ maintenance then this ought to discharge the common law duty of care.
  • This is an important reminder for occupiers' liability claims that whilst equipment may not be working perfectly, as long as it is not dangerous, liability ought not to attach.

Khan v LB Hammersmith & Fulham, Mayor's & City of London Court (2010)

The claimant claimed damages for injuries sustained as a result of an incident whilst he was playing football with some friends, in April 2008, in a communal caged football court. The ball was kicked out of the court and whilst he was retrieving it the claimant alleged that the gate to the caged court struck him on the head causing a laceration injury.

The claimant's case

The claimant's claim alleged breach of statutory duty under the Occupiers' Liability Act 1957 and common law negligence.

The claimant alleged that at the time of the incident there was a problem with the opening of the gate in that the metal bolt, on the bottom exterior of the gate, would lower down and drag along the paved area outside the court and catch on a raised paving stone and recoil the gate.

Whilst attempting to exit the court to retrieve the ball the claimant allegedly attempted to open the gate but it snagged immediately. The claimant used a little more force to open the gate thus causing it to swing open away from him and to his right. It then hit the raised paving stone and the gate recoiled with such force so as to strike the claimant on his left forehead.

The alleged part of the gate which struck the claimant was the sliding horizontal bolt situated approximately half way up the gate some 52.5 inches from ground level.

The defendant's case

The defendant relied on the fact that, at all material times, the caged football court was subject to a reasonable system of inspection and maintenance.

The defendant had contracted out the provision of inspection and maintenance services from 1 July 2007 to RoSPA Playground Management Ltd. As part of that contract, the football court was to be inspected on a quarterly basis and a full annual inspection was to take place.

The inspector attended the court on 12 February 2008 to carry out the full annual inspection and a quarterly inspection was carried out 11 days after the alleged accident on 7 May 2008. On neither occasion were there any problems reported regarding the gate.

In cross-examination the inspector accepted that, on the basis of the photographic evidence before the court, there appeared to be a difference in level of the paving stones but added that the bolt would either slide over it (as evidenced by the grooving in the stones due to dragging over time) or that it would stop the gate. The inspector did not accept that the gate would recoil to strike the claimant.

The Court also heard that the claimant was 70 inches tall and yet the bolt which struck him was only 52.5 inches from ground level.

The claimant could not explain how the gate opened away to the claimant's right yet the injury was on the left hand side of his head.

The judgment

The judge held that on the balance of the evidence she was not satisfied that the claimant had made out his claim.

The judge held that she had concerns as to the veracity of the claimant's evidence and did not find him to be a cogent witness.

In particular, the claimant failed to prove that the gate would have recoiled with such force as alleged, he had failed to explain how the significant difference in height resulted in the horizontal bolt striking his forehead and he failed to explain how he was struck on the left hand side of his head.

The trial judge held that the claimant had not made out his claim and dismissed his claim for damages and ordered the claimant to pay the defendant's costs.

Comment

  • It is the duty of an occupier to ensure that so far as is reasonably practicable its visitors are free from the risk of injury. Contracting out to a company for the provision of a system of regular inspections, can really impress the Court as here, but only if it is well run.
  • Wherever there are obvious evidential discrepancies such that an early assessment of a claimant's credibility can be undertaken, defendants should not deterred from adopting a robust, yet realistic defence to the claim.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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