Maloney v Torfaen County Borough Council

Under the Occupiers Liability Act 1957, a person is a visitor only within the scope of express or implied permission. Permission is fact-sensitive and must be assessed in the immediate circumstances, including the time, route and manner of use. Under the Occupiers Liability Act 1984, the conditions for a duty to a non-visitor are cumulative. A danger due to the state of premises may satisfy the threshold, but it does not alone create a duty. The occupier must also have the required knowledge of the danger and of the person’s possible presence near it, and reasonably be expected to offer protection. Previous accidents on a different feature and general knowledge that people take shortcuts were insufficient. A separate negligent-design claim required evidence that the design fell below applicable standards.

The claimant suffered serious brain injuries after slipping or stumbling from an unfenced grass bank onto the floor of a pedestrian subway near his flat. He had been drinking and was using the bank as a shortcut late at night. The bank and subway were owned and occupied by the local authority.

The Cardiff County Court tried liability only and dismissed the claim on 10 December 2004. The claimant appealed on grounds concerning negligent design, implied permission under the Occupiers Liability Act 1957, the statutory conditions for liability to non-visitors under the Occupiers Liability Act 1984, prior accidents and the timing of any remedial response. The central issues were whether either Act imposed a duty and whether any separate design liability arose.

The Court of Appeal, in the leading judgment of Laws LJ, with Maurice Kay LJ and Brooke LJ agreeing, dismissed the appeal. The order included detailed assessment of the appellant’s legally aided costs.

1. Visitor status under the 1957 Act. The claimant had no express permission to use the grass bank, and the evidence did not establish implied permission. The bank was landscaping rather than an access route, a proper path was provided, there was no established well-worn path, and neither previous accident involved use of that bank as a shortcut. The fact that the authority had not physically prevented use did not amount to consent to a tenant walking beside the drop late at night. Questions of fact under both Acts had to be assessed in the circumstances prevailing at the time of the accident, consistent with Donoghue v Folkestone Property [2003] EWCA Civ 231 and Tomlinson [2003] UKHL 47. The claimant was not a visitor, so no duty arose under the 1957 Act and breach of the common duty did not arise.
2. Duty to non-visitors under the 1984 Act. The conditions in section 1(3) were cumulative. The threshold requirement in section 1(1)(a), namely a danger due to the state of the premises, was satisfied. The argument that the claimant’s own foolhardy conduct caused the accident went to his responsibility for the accident, including contributory negligence, rather than defeating that threshold. However, the prior incidents did not establish that the authority was aware of the danger or had reasonable grounds to believe it existed. Nor was there evidence that it knew, or had reasonable grounds to believe, that the claimant or persons like him would use the bank as a shortcut near midnight. General knowledge that people sometimes take shortcuts was insufficient. The judge’s conclusions under section 1(3)(a) and (b) were therefore not open to successful challenge.
3. Negligent design. The evidence did not show that the retaining wall had been negligently designed by the standards applicable when it was constructed or by current design criteria. The alleged need for fencing added nothing to the claim, and no separate duty to fence was established.
4. The complaint about the time taken to respond to the later fatal accident could not assist unless the claimant first established liability under either Act.

• Court of Appeal (Civil Division): Dismissed the claimant’s appeal against the liability decision of the Cardiff County Court.
• Cardiff County Court: His Honour Judge Denyer QC dismissed the personal-injury claim after trying the issue of liability only on 10 December 2004.