Brioland Ltd. v Searson

Under section 2 of the Occupier's Liability Act 1957, whether premises are reasonably safe for a visitor is primarily a fact-sensitive exercise of judgment. An appellate court should hesitate to interfere unless the trial judge made an error of law in approaching the facts. A visible threshold may nevertheless be hazardous where its presence is not reasonably to be expected, particularly on an exit from premises. Evidence that similar construction is common, that building regulations were complied with, or that many people previously used the entrance without injury does not determine the statutory or common-law question. Expert evidence must remain within the expert's proper field and must not usurp the court's decision on negligence.

An elderly visitor attending a wedding at a hotel tripped while leaving through a frequently used conference-centre entrance. She caught her foot on a white-painted metal upstand, approximately 2.8 cm high, immediately before a step down. She accepted that the upstand was visible but said that she did not expect such an obstruction when leaving the hotel.

The Central London County Court, HHJ Collins, found for the visitor under section 2 of the Occupier's Liability Act 1957. The hotel operator appealed, alleging insufficient evidence of danger, improper exclusion of expert evidence, and reliance on matters such as common practice, regulatory compliance and the absence of earlier injuries. The central issue was whether the judge had made an error of law warranting appellate interference.

1. Appeal dismissed. The judge's conclusion that the entrance was not reasonably safe for a person leaving the hotel was a permissible judgment on the facts. It was not enough that another judge might have reached a different conclusion.
2. The statutory duty under section 2 of the Occupier's Liability Act 1957 required assessment of whether the visitor was reasonably safe for the purpose for which she was using the premises. The issue was broad and fact-sensitive. Appellate intervention required a demonstrated error of law in the judge's approach.
3. The judge was entitled to find that an upstand which might be expected when entering a building was not necessarily expected when leaving it. Its visibility and white paint did not answer whether the visitor ought reasonably to have been looking for it. The upstand, together with the immediately following step down, could constitute a hazard without a clear warning.
4. Evidence that the threshold was common, or that many people had crossed it without injury, had limited value. Previous users might have tripped without falling or without suffering comparable consequences. The absence of previous injury therefore did not establish that the threshold was reasonably safe.
5. Regulatory compliance was neither pleaded nor shown by relevant evidence. The local authority's view that the construction did not breach the general requirements of the Building Regulations 1985 was not evidence of the issue the court had to decide and, in any event, conformity with regulations does not exclude common-law negligence.
6. The judge properly excluded the substantial part of Mr Walsh's report. An expert could provide photographs and measurements, but could not give an opinion on whether the threshold was a hazard or whether the defendants were negligent. The general instruction to report on causation was misconceived, and the expert's qualifications did not establish specific expertise on the construction issue.
7. Palmer v Marks & Spencer Plc [2001] EWCA Civ 1528 was materially different: it concerned a 9 mm upstand, known to the employee, and the Workplace (Health, Safety and Welfare) Regulations 1992. It was a case on its own facts and did not assist in deciding whether the present judge was entitled to find the hotel entrance unsafe. Sedley LJ agreed with both judgments.

• Court of Appeal (Civil Division) — [2005] EWCA Civ 55, appeal from the Central London County Court dismissed.
• Central London County Court — HHJ Collins found in favour of Lydia Mary Searson under section 2 of the Occupier's Liability Act 1957.