Tedstone v Bourne Leisure Ltd (t/a Thoresby Hall Hotel & Spa)

Under the Occupiers’ Liability Act 1957, an occupier must take reasonable steps to deal with excessive water where water is expected. The duty does not require a system capable of eliminating every short-lived, unusual overflow. Non-slip tiles generally suffice for ordinary occasional water dealt with by drainage or removal. A claimant may establish a prima facie case where an unusual event is more consistent with fault than its absence, but liability is not established where the water arose only minutes before the accident and no reasonable system would have removed it in time.

Mrs Carol Tedstone slipped on a pool of water near a Jacuzzi at the respondent hotel’s swimming pool. The Birmingham County Court, before Mr Recorder Khangure QC, found that the accident occurred because the respondent had breached the common duty of care under section 2 of the Occupiers’ Liability Act 1957. Permission to appeal was granted only on whether the presence of the water constituted a breach, given evidence that the area had been clear approximately five minutes earlier. The respondent argued that the hazard was a transient and unforeseeable overflow. The central issue was whether the evidence established a prima facie breach and, if so, whether a reasonable system could have prevented the accident.

1. Appeal allowed unanimously. The challenge to the Recorder’s factual finding that a pool of water existed was not pursued successfully. The issue was whether its presence amounted to a breach of the common duty of care under section 2 of the Occupiers’ Liability Act 1957.
2. May LJ applied the evidential approach in Ward v Tesco Stores Ltd [1976] 1 WLR 810. A claimant may establish a prima facie case where an unusual event is, in the absence of explanation, more consistent with fault than with the absence of fault. The defendant may answer that case by showing that the accident would probably have happened even if a proper and adequate safety system had existed. May LJ proceeded on the assumption that the claimant had raised such a case, but held that the respondent’s evidence sufficiently showed that the accident did not result from want of due care.
3. The critical facts were that water had not previously been shown to pool at the accident location, the area had been clear five minutes earlier, and the substantial pool must have arrived in the minute or two before the accident through an unusual overflow from the Jacuzzi. Non-slip tiles were ordinarily sufficient for occasional water around a swimming pool. No reasonable inspection, cleaning or drainage system would, on the balance of probabilities, have dealt with this unusual occurrence in the time available. The supermarket spillage in Ward, where the probabilities supported a finding that the liquid had remained long enough to be cleaned, was materially distinguishable.
4. Moore-Bick LJ agreed, and gave an additional basis: the claimant’s evidence did not establish a known risk of significant pooling in the relevant area, so no evidential burden passed to the respondent. Richards LJ agreed with May LJ’s reasoning and was also inclined to adopt Moore-Bick LJ’s additional analysis. The appeal was allowed.

• Court of Appeal (Civil Division): In [2008] EWCA Civ 654, the appeal was allowed on the issue of breach of duty.
• Birmingham County Court: Mr Recorder Khangure QC found on 18 October 2007 that the respondent had breached the common duty of care under section 2 of the Occupiers’ Liability Act 1957.