Hall v Holker Estate Co Ltd

Where an occupier knows that portable equipment may become unstable and accepts a duty of regular inspection, proof that an accident resulted from the unsafe condition may establish a prima facie case of want of reasonable care. The claimant retains the overall burden of proof, but the evidential burden shifts to the occupier to show that the accident would probably have occurred despite a proper and adequate safety system. The occupier cannot rely simply on uncertainty about how long the danger existed or on the absence of previous accidents. Foreseeable misuse of recreational equipment must also be considered.

The claimant, a lawful visitor to the respondent’s caravan park, was injured when a portable football goal toppled while he was playing football with children. He claimed negligence and breach of the common duty of care under the Occupiers Liability Act 1957. The county court found that the goal was not properly pegged and that instability was a known risk, but dismissed the claim on the basis that the unsafe condition was unusual and had not existed for long enough to show inadequate inspection. The appeal concerned the burden of proof and the adequacy of the respondent’s inspection system.

Appeal allowed. The judgment was given by Sir Mark Potter P, with Arden LJ and Hughes LJ agreeing. Judgment was entered for the claimant for damages of £41,500.

1. The judge had found that the accident resulted from the absence of proper pegging, that instability was a known risk, and that regular inspection was required. The defendants had not proved that their asserted inspection system was operating at the relevant time.
2. The Court applied the approach in Ward v Tesco Stores Ltd [1976] 1 All ER 219. The claimant retained the overall burden of proving want of reasonable care. However, once the accident was shown to be an unusual occurrence more consistent with fault than with the absence of fault, the evidential burden was on the defendants to show that the accident would probably have occurred despite a proper and adequate system. This reflected the principle in Scott v The London and St Katherine Docks Co (1865) 3 H&C 596-601.
3. The judge erred by treating the claimant’s inability to prove whether the goal had been unsecured for more or less than 24 hours as fatal. There was no basis for concluding that the accident would probably have happened despite an effective daily inspection and replacement system. The discussion of Richards v WF White & Co did not establish any general requirement to prove the precise duration of the danger.
4. The judge also erred in inferring from the absence of previous accidents or complaints that the goals were routinely secure. Absence of evidence of an occurrence was not evidence of its absence, particularly where the defendants were better placed to provide information about inspections and prior incidents.
5. Reasonable care required consideration of foreseeable misuse of the goal by children, including swinging on it or colliding with it. On the findings, the defendants had not shown that they operated a proper system addressing the known risk.

1. Court of Appeal (Civil Division): In [2008] EWCA Civ 1422, the appeal was allowed and judgment was entered for the claimant for £41,500.
2. Oldham County Court: HHJ Armitage QC dismissed the claimant’s claim on 12 November 2007.