Maynard v Wigan Metropolitan Borough Council

Under the Occupiers’ Liability Act 1957, s 2(2), breach depends on whether a feature created a foreseeable risk of injury and whether it was reasonable to expect the occupier to discover and remedy it. A fall or complaint does not, by itself, establish danger. The court must assess the feature’s nature and size and form its own view of the risk. A hole deep enough to trap an adult’s foot may be inferred to be foreseeably dangerous, even if hidden, particularly where the occupier was warned. An appellate court may uphold an inadequately expressed judgment where its true factual and legal basis can be discerned from the judgment as a whole.

Mrs Maynard claimed damages after falling while crossing a grass verge outside her home. She alleged that her foot entered a hole for which Wigan Metropolitan Borough Council, as occupier, was responsible. The Council accepted the accident and its duty of care but denied breach.

HHJ Hodge QC found that Mrs Maynard had fallen after stepping into a hole, found a breach of duty, and reduced agreed damages of £3,000 by 50 per cent for contributory negligence, awarding £1,500. The Council appealed, arguing that the evidence did not establish the hole’s condition at the time and that the judge had wrongly inferred danger from the fall and complaints. The central issue was whether the judge’s findings and reasoning supported liability.

1. Appeal dismissed. Dame Janet Smith held that the Council’s breach of the common duty of care was established. Lord Justice Lloyd agreed with her reasoning and conclusion. The finding of 50 per cent contributory negligence was not challenged.

2. The correct approach under s 2(2) of the Occupiers’ Liability Act 1957 was to make findings about the nature and size of the hole, then decide whether it presented a foreseeable risk of injury and whether it was reasonable to expect the Council to discover and repair it. It was not permissible to infer that the hole was dangerous merely because Mrs Maynard fell. People can fall because of slight imperfections or without any imperfection. Nor did the complaints prove that the ground was foreseeably dangerous; they showed only Mrs Maynard’s perception. The judge had to form his own view from the accepted evidence.

3. Although the reasoning in paragraph 21 was flawed and the factual findings were insufficiently explicit, the judgment had to be read as a whole. The judge had accepted Mrs Maynard as an honest witness and had not rejected her account that her foot became stuck. His findings therefore implicitly established that the hole was sufficiently deep to trap her foot. That made it considerably more than two inches deep and supported the inference that it was foreseeably dangerous.

4. The danger could have been hidden, but the Council had been warned about it and could reasonably have been expected to rectify it. The appellate court could support the decision on the factual and legal basis that was discernible from the judgment, despite its lack of clarity. A rehearing was unnecessary.

• Court of Appeal (Civil Division) — In [2011] EWCA Civ 1694, dismissed the Council’s appeal and upheld the finding of breach and the £1,500 award.
• Wigan County Court — On 23 February 2011, HHJ Hodge QC found the Council liable, reduced agreed damages by 50 per cent for contributory negligence, and awarded £1,500.