Lawyers Briefing Notes

Sat, 11 Dec 2010

Occupier’s Duty of Care is an Objective Test

The Court of Appeal recently reiterated that the test of whether an occupier had taken such steps as were reasonable to see that visitors were reasonably safe was an objective one. In the case of Esdale v Dover District Council [2010] EWCA 409 the claimant, Mrs Esdale, appealed against the first instance decision dismissing her claim against the defendant, Dover District Council.

In 2006 the claimant had tripped on a footpath leading to the block of flats where she lived and sustained injury. It was accepted that the path, owned and occupied by the council, was constructed partly of concrete and partly of tarmac and where the two materials met there was a change of level, like a small step running at a slight angle across the width of the path. It had been that way for many years.

The council were aware of this issue because the path had been visually inspected on a number of occasions over the years. It was not regarded, by the council, as a problem and had not been reported for repair. The council inspectors had not measured the change of level but it was council policy that defects which were found to be more than ¾ inch in height of depth would be reported for repair.

It was also apparent that the claimant was aware of the change of level in the path but had not, prior to her accident, regarded it as being dangerous. There was no history of accidents.

After her accident the path was repaired.

The judge at first instance held that the council had not breached its duty of care under Section 2(2) of the Occupiers Liability Act 1957. The path did not give rise to a real danger and the periodic visual inspections by the council with a system for reporting defects found had been reasonable.

The basis of appeal was that where the council had, as a matter of policy, set a standard to be observed by its inspectors (measuring and reporting defects above a stipulated height), it must follow that, if the policy was not complied with, the council had failed to take reasonable care and was, therefore, in breach of the common law duty of care.

The court of appeal rejected that argument. It stated that the test of whether, in all the circumstances, the council had taken such steps as were reasonable to see that visitors were reasonably safe did not depend upon what standards of safety it had set itself as a matter of policy. The test to be applied was an objective one.

The appeal court concluded that the judge had applied the correct test and it would not interfere with his findings of fact. The appeal was dismissed.