Esdale v Dover District Council

An occupier’s compliance with the common duty of care under section 2(2) of the Occupiers Liability Act 1957 is judged objectively. An occupier’s internal inspection or repair policy may be relevant, but it neither determines nor fixes the legally required standard of care.

The court must independently assess whether the occupier took reasonable steps to make visitors reasonably safe. A pathway need not be perfectly free from irregularities. The question is whether a reasonable person would regard the defect as presenting a real danger, assessed by reasonable foresight of harm.

The appellant suffered personal injuries after tripping over a change in level of between three-quarters of an inch and one inch on a pathway at a block of flats owned and occupied by the respondent council. The council’s inspector used a flexible rule of thumb under which defects exceeding three-quarters of an inch would ordinarily be reported for repair.

Canterbury County Court dismissed the damages claim. It held that the council had complied with the common duty of care imposed by section 2(2) of the Occupiers Liability Act 1957. The central issue on appeal was whether the inspector’s failure to measure and procure the repair of a defect exceeding the council’s internal threshold established, or materially supported, a breach of duty.

1. The appeal was dismissed unanimously. The statutory standard was objective. Whether the council had taken reasonable steps to make visitors reasonably safe did not depend upon the safety standard adopted in its internal policy. Such a policy could be relevant, but was not determinative.

2. An internal standard could be either less demanding or more demanding than reasonable care required. Compliance with an unduly lax policy would not establish reasonable care. Conversely, failure to attain an unusually rigorous policy would not establish a breach. The judge therefore had to reach an independent view about the danger presented by the defect and the reasonableness of the council’s response.

3. The approach in Mills v Barnsley Borough Council [1992] PIQR 291 was properly used. The duty did not require a perfect surface free from every irregularity, and no specified height could operate as a conclusive threshold. The relevant question was whether reasonable foresight of harm showed that the defect presented a real danger.

4. The county court judge was entitled to regard the defect as minor and clearly visible. He was also entitled to consider the pathway’s long-standing condition, the absence of other accidents, and the inspector’s repeated visual assessments. The inspector’s failure to measure the defect or order its repair under his rule of thumb did not compel a finding that the council had failed to take reasonable care.

5. The determination was an exercise of evaluative judgment rather than discretion. An appellate court should respect such a judgment unless the trial judge omitted a relevant matter, considered an irrelevant matter, or clearly erred. No such error had occurred. Lady Justice Smith dismissed the appeal, with Lord Justice Ward and Mr Justice Briggs agreeing.

1. Court of Appeal (Civil Division): The appeal was dismissed by the court in [2010] EWCA Civ 409. The county court judge had applied the correct objective standard and was entitled to find that the council had taken reasonable care.
2. Canterbury County Court: HHJ Murdoch QC dismissed the personal injury claim on 13 May 2009. He held that the council had not breached the common duty of care imposed by section 2(2) of the Occupiers Liability Act 1957.