Peskett v Portsmouth City Council

An occupier must take such care as is reasonable in all the circumstances to ensure that visitors are reasonably safe. The duty may extend to a danger which the occupier did not create, where the danger is known and arises from a foreseeable and customary use of the premises. The absence of previous accidents or complaints does not necessarily make a known potential hazard safe. Liability and contributory negligence depend on the particular facts. A decision on a particular path and hazard does not establish a general duty to remedy every defect in lawns, grassed areas or wasteland.

The claimant, an employee of the defendant local authority, tripped on an eroded corner where a slabbed path joined a tarmac path outside the authority’s premises. The county court found the authority liable under the Occupiers Liability Acts 1957 and 1984, subject to 50 per cent contributory negligence, and awarded damages of £15,061.92.

The authority appealed, challenging both breach of duty and the apportionment of contributory negligence. The central issue was whether the authority was liable for a known tripping hazard created by the foreseeable practice of pedestrians cutting across the corner.

1. Appeal dismissed. The authority had breached the common duty of care. The eroded corner created a potential tripping hazard immediately adjacent to a heavily used path. The authority knew that employees and members of the public commonly cut across the corner, making the danger foreseeable in ordinary use of the premises.
2. The common duty required the occupier to take such care as was reasonable in all the circumstances to ensure that the visitor was reasonably safe. The authority could not assume that every person using the shortcut would avoid the known depression by continually scanning the ground. The lack of previous accidents or complaints did not make the hazard safe.
3. The claimant was contributorily negligent because she knew of the hazard, was in a hurry and failed to take sufficient care when cutting the corner. The finding of 50 per cent contributory negligence was open to the trial judge. Although the Court of Appeal might have assessed the claimant’s responsibility somewhat higher, it would not interfere with a proper assessment based on all the evidence.
4. The court considered Buyukarkicli v Hammerson UK Properties Plc, Standard Life Assurance and AMEC (Court of Appeal transcript 1st May 2002). That case was decided on its own special facts and gave no assistance in determining this case.
5. The decision was fact-specific. It established no general principle applicable to wasteland, countryside, lawns or grassed areas, and did not require occupiers generally to remedy every defect or install an unduly onerous inspection system. The appeal was dismissed with costs to be assessed on the standard basis.

• Court of Appeal (Civil Division): Allowed permission to appeal from the decision of His Honour Judge Rudd in the Portsmouth County Court. The appeal was dismissed with costs to be assessed on the standard basis.