Esdale v Dover District Council [2010] EWCA Civ
409
This recent Court of Appeal decision considered the test to be
applied in judging whether reasonable steps had been taken under
the Occupiers' Liability Act 1957 to prevent injuries to those
entering onto premises.
Mrs Esdale lived in a flat owned by Dover District Council. She
had lived in the building for around eight months. One day, upon
entering the building, she tripped on a pathway and fell. The
pathway was about four feet wide. On one side there were railings
and on the other side shrubs. The path was constructed partly of
concrete and partly of tarmac. Where the two materials met there
was a change of level running at a slight angle across the path.
The claimant was familiar with the path and had not previously
thought that it was dangerous or that its condition should be
reported to the council. The council led evidence that there were
regular inspections of the path. Their inspector advised that if he
found a defect which was more than three quarters of an inch in
height or depth he would report it for repair. He had inspected the
footpath on several occasions over a five year period prior to the
accident and did not see anything requiring attention. He reached
this conclusion from a visual examination of the path, rather than
taking a measurement.
The judge found as a matter of fact that the defect had been
between three quarters of an inch and one inch at the time of the
accident. At first instance the judge dismissed the claim on the
basis that the council had complied with its duty of care.
The action proceeded under the Occupiers' Liability Act
1957.
Section 2(2) provides that there is a duty to take such care as
is reasonable to see that the visitor will be reasonably safe in
using the premises. The provisions of the Occupiers' Liability
(Scotland) Act 1960 are in similar terms.
The claimant's appeal proceeded on the basis that as it was the
council's policy to repair defects of more than three quarters of
an inch then this defect should have been regarded as dangerous and
been repaired. It was argued that where the council has:
'as a matter of policy, set a standard to be observed by its
inspectors, it must follow that, if the policy is not complied
with, the council has failed to take reasonable care and is
accordingly liable.'
The claimant conceded that the council's policy could not be
determinative of the issue, but it was an important factor which
the trial judge had not taken into account.
The Court of Appeal confirmed that the test to be applied was an
objective one and the judge, as the embodiment of the reasonable
person, had to consider whether the council had, to keep the
visitor reasonably safe, taken all steps reasonable in the
circumstances. The council's own policy was not irrelevantbut it
could not be determinative of the issue. The question was one for
the judge to resolve on the basis of his interpretation of the
factual evidence. He was entitled to conclude the defect was minor
and that the path had been in that condition for many years. He was
also entitled to find that the council, in inspecting the pathway
periodically, had complied with its duty of care.
While, therefore, the council's inspector did not adhere to his
own policy by measuring the defect and ordering its repair because
it exceeded three quarters of an inch, the judge was still entitled
to find that the council had taken reasonable care for the
claimant's safety.
This decision is clearly a sensible interpretation of the duty
of reasonable care. What is a reasonable standard under the
occupiers' liability legislation is not to be judged by reference
to any policy a local authority has in place. The matter will be
judged by the evidence. If sufficient evidence can be led regarding
an inspection system from a competent inspector then enough may be
done to satisfy the court that the duty of care has been complied
with even if a defect is one in which, according to the local
authority's own policy, should otherwise have been actioned.
Contributed by Debbie Connor