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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Peskett v Portsmouth City Council [2002] EWCA Civ 1175 (25 June 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1175.html Cite as: [2002] EWCA Civ 1175

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PORTSMOUTH COUNTY COURT
(His Honour Judge Rudd)

		Royal Courts of Justice Strand London WC2 Tuesday, 25th June 2002

Tuesday, 25th June 2002

1. LORD JUSTICE POTTER: Mr Justice Nelson will give the first judgment.
2. MR JUSTICE NELSON: This is an appeal against a decision of His Honour Judge Rudd given in the Southampton County Court on 18th December 2001. Permission to appeal was granted to the appellants by Hale LJ.
3. The action arose out of an accident which occurred on 26th August 1999, when the respondent tripped and fell whilst negotiating a path outside her employers' premises in Havant. The judge found that the appellants were liable under the Occupiers Liabilities Acts 1957 and 1984, subject to a finding of contributory negligence of 50%, and awarded damages to the respondent in the sum of £15,061.92.
4. The appellants appeal on two grounds. First, that the judge erred in law when he found that they had not discharged their duty of care to the respondent as occupier of the property, and, alternatively, if there was any liability upon them, the finding of contributory negligence should have been substantially more than 50%. Allegations of breach of the Workplace Health Safety and Welfare Regulations 1992 were not pursued before the judge and form no part of this appeal.

The facts

5. The respondent had worked for the appellants at the housing office in Leigh Park for some 20 years. She retired in June 1999, but two weeks later was asked if she would go back on a temporary basis for six months to cover for another employee who was due to be relocated. The respondent was therefore familiar with the housing office and its surrounding area.
6. The office is set amongst lawns with various paths, mostly in tarmac, around the building. These paths meet at right angles at the corners of the building. At the point where the accident occurred, a slabbed path, which led to the road, joined the tarmac path at right angles. The judge found that it was common ground that the area in the right angle between the two paths, consisting of earth and grass, was worn and eroded because people frequently took shortcuts over it in order to pass from the one path to the other. The effect of the erosion was that there was a tripping hazard on the edge of the slab where the earth and grass had worn away to a level lower than the edge of the slab. The extent of the tripping hazard was not measured, but it was shown on the photographs which were before the trial judge and are before this court.
7. On 26th August 1999 the respondent had set-off at lunchtime to go to the hairdressers. She was in a bit of a hurry, and when she went along the tarmac path to go up the slabbed path she cut the corner, although she was unable to say by how much. The judge found that she tripped on the edge of the paving slab and, as a consequence, fell over and sustained a fracture dislocation of her left wrist and a displaced fracture of her left patella.
8. The evidence before the judge led him to conclude that the employers knew that there was erosion of the grass and earth at the corner and that this erosion had left a potential tripping hazard. The erosion of this corner was accepted by the defendants' witness as being of long standing, for months if not years, and had been caused by both their employers and members of the public cutting the corner, as the claimant did on this occasion. They contended, however, that they had provided perfectly adequate paths, which were perfectly safe if they had been used as they should have been, and that, as nobody had ever had an accident there, nor had there been any complaints about potential tripping hazard, no action was required by them.
9. The judge found that there was a duty, under the Occupiers Liability Act, to take such care as was in all the circumstances of the case reasonable to see that the visitor would be reasonably safe in using the premises, and that that duty extended to dangers which a defendant had not created himself but of which he was aware. The judge took into account when considering whether there had been a breach of duty that the area in the angle had been filled in on the afternoon of the accident and, on the following day, slabs were put across that angle, as shown in the photographs. The corner which was habitually cut was therefore now paved over and the former tripping hazard removed.
10. The judge expressed the view that the appellants had a very strong argument in saying, "We have provided a perfectly good path. If you walk on it you will not hurt yourself", but nevertheless concluded, in all the circumstances, that there had been a breach of the common duty of care by the appellants. He did so on the basis that the appellants knew that the shortcut was being taken across the corner - a fact which was perfectly obvious because the evidence of wear indicated it - and that that, to the appellant's knowledge, created a potential tripping hazard. As the duty was to deal with dangers not only which had been created by the appellant's themselves, there was a breach of that duty and primary liability on the appellants. As the respondent was in a hurry, she was not as careful as she might have been, even though she was herself aware of the problem on the corner. When taking into account the facts, including the fact that the paths were not very wide and hence awkward, the judge concluded that the appropriate finding of contributory negligence was 50%.

The appellants' submissions

11. These have been expressed succinctly and with considerable skill. The standard imposed by the judge in finding liability fixed the appellants with a duty, it is submitted, which in effect guaranteed a visitor's safety. As the pathways themselves were without defect and perfectly safe, and as there had not been complaints or previous accidents, the judge should not have found a breach of duty. The footpaths were there and available to be used, and if a short cut was taken, a potential tripping hazard was only created by those who did not use the path and were not looking where they were going. The paths had heavy public use by those accessing the benefits office, by employees and by members of the public using the area as a shortcut. Yet there had been no accident or complaint. The countryside is littered with hazards, and the judge imposed too high a standard. It could not be right that occupiers had to make lawns, for example, safe to walk on when they had become slippery in rain or when cracks had appeared in them in dry weather in the summer. The duty could not stretch that far. The respondent said that people were ahead of her and she was in a hurry, and so she should have been looking where she was going. An occupier cannot make every part of his premises perfectly safe. The consequences of the imposition of liability in a case like this meant that large occupiers of land would have to remedy all defects and install an onerous system of inspection. In this particular case, people might cut across a wider and wider area beyond the newly positioned triangular slab. "Did the duty correspondingly go on for ever?", the appellants' counsel rhetorically asked. The only measure, he submitted, that the appellants needed to take was to fill in the gap after the accident, as they in fact did. Alternatively, in finding that the path appeared narrow and the turning of 90 degrees awkward, the judge made findings on matters which had never been argued, nor put to the witnesses. In any event, the majority of the fault should lie upon the respondent for failing to look where she was going when taking the shortcut. As the hazard created was one of which she was perfectly well aware, the range of contributory negligence should have been between two-thirds and three-quarters.
12. The appellant has drawn our attention to the case of Buyukarkicli v Hammerson UK Properties Plc, Standard Life Assurance and AMEC (Court of Appeal transcript 1st May 2002). This case is an example of a breach of duty, where a kerb created a tripping hazard by being two inches proud of a rectangular area of prepared soil immediately next to the tarmac. On the facts of that case the lip was in a curious place, in front of one of the busy entrances to John Lewis's, inviting use as a place of passage. The Court of Appeal found that on those facts the judge was entitled to conclude that there had been a breach of the common duty of care. Whilst the facts are similar, however, they are not identical, and each case must be determined on its own particular facts. We agree that this case was decided on its own special facts, and I am of the view that it gives no assistance to the court here.

Conclusions

13. I am satisfied that the judge was correct on the facts found by him to hold that there was a breach of the common duty of care. There was a potential tripping hazard which was known to the appellants. The path was heavily used by employees and the public, and it was clear from the condition of the corner that many of those users took the shortcut across that corner. The creation of a potential tripping hazard by such use was obvious and had been present for some time when the accident occurred, to the knowledge of the appellants. The eroded area had, as the evidence and photographs demonstrate, created a depression or hole immediately adjacent to the footpath. Because of the heavy usage of the paths, it was entirely foreseeable that people would in normal usage, as they in fact did, step into that depression or hole with the attendant risk of tripping or indeed stumbling. When the pathways were busy and someone had to, or chose to, step aside and take the short cut, the appellants could not assume that the danger would always be averted by each and every person scanning the ground for a potential problem. The danger immediately adjacent to the path existed and was known, as indeed it should have been, to the appellants. The fact that there had been no previous accident or complaint does not render the potential hazard safe. It may do no more than reflect the fact that as the erosion developed the potential tripping hazard increased.
14. For my part, I am satisfied that the judge properly found on these facts that the occupier had not taken such care as in all the circumstances of the case was reasonable to see that his visitor, in this case the respondent, would be reasonably safe in using the premises for access to and from her work. Insofar as the respondent failed to look where she was going and take account of the known hazard in cutting the corner, she was rightly found guilty of contributory negligence. The relative narrowness of the paths and awkwardness of 90 degree turns may not have been specifically raised in evidence or argument, but they are clearly apparent from the photographs. It was open to the judge to look at all the evidence before him and take it into account in assessing the degree of contributory negligence which it was appropriate to find against the respondent. For my part, I might have considered the respondent somewhat more to blame than 50%, but the judge had all the evidence, and his finding was perfectly proper and open to him. It would not in these circumstances be appropriate for this court, in my judgment, to interfere with his assessment of contributory negligence.
15. I should add that cases of this kind are determined on their own particular facts and do not in the ordinary course of events establish any precedent.
16. This case is no exception. It turns on its own individual facts, and is merely one example of a breach of the common duty of care. It lays down no general principle applicable to wasteland, the countryside or lawns or grassed areas generally, nor does it demand all defects to be remedied by a large occupier of land, or place any unduly onerous system of inspection. This particular footpath was used in a particular and foreseeable way by many ordinary users cutting the corner. That use created a potential hazard for any such users in their ordinary, and foreseeable, use of the access and egress to and from the appellants' premises. The appellants were aware of this. The greater the erosion the greater the hazard became.
17. The judge's findings were in my judgment correct, and the appeal should be dismissed.
18. LORD JUSTICE POTTER: I agree. I would merely add a few words in relation to what seem to me the unnecessary concerns of the appellant council as to the wider implications of this case.
19. The case was decided entirely upon its particular facts which included the particular construction and layout of the path clearly illustrated in the photographs before the judge, and the clear evidence before him to the effect that it was well-known to the Council that their employees, as well as the wider public visiting the premises, cut the corner at the t-junction in the path. The weight and effect of the evidence and the judge's finding was that what was, in effect, a `pothole' had developed over a long period through use by pedestrians of a route on the Council's premises in a manner and to an extent well-known to the Council, as occupier. It created a danger which could be, and was, readily cured. As such, the Council was liable on orthodox principles of occupier's liability.
20. In those circumstances the appeal will be dismissed.
Order: Appeal dismissed with costs to be assessed on the standard basis.