Clark v Bourne Leisure Ltd

Under the Occupier’s Liability Act 1957, the question is whether premises are reasonably safe for the users who may reasonably be expected to use them, not whether they are completely risk-free. The court must make its own assessment. The occupier’s or manager’s view may be relevant but is not determinative.

Premises may be reasonably safe for wheelchair users where a safe ramp is available and nearby steps are sufficiently visible and apparent that a wheelchair user taking reasonable care would avoid them. A claimant’s admissible hearsay account may support a finding about their state of mind, although reliance on such evidence alone carries risk.

Brenda Clark, who used an electric wheelchair, was injured at Bourne Leisure’s holiday park after driving towards steps which she believed were a ramp. The Norwich County Court held that the premises were not reasonably safe under the Occupier’s Liability Act 1957 and found Bourne Leisure liable, subject to a reduction for contributory negligence.

On appeal, the Court of Appeal considered whether the trial judge was entitled to find that Mrs Clark had mistaken the steps for a ramp and whether the steps were sufficiently visible for wheelchair users. It also considered the significance of the manager’s evidence and pre-action correspondence.

1. Appeal allowed; claim dismissed. The Court of Appeal unanimously allowed Bourne Leisure’s appeal and dismissed Mrs Clark’s claim. Lord Justice Elias and Lord Neuberger MR agreed with Dame Janet Smith’s judgment.
2. The trial judge was entitled to find, on the balance of probabilities, that Mrs Clark had approached the steps believing that she was about to descend a ramp. The accident report was admissible hearsay, and Bourne Leisure had not challenged its reliability or accuracy. It provided only slender support, and the claimant had taken a real risk by not giving evidence herself.
3. The applicable statutory question was whether the premises were reasonably safe for wheelchair users. The judge had to form his own view. The occupier’s or manager’s opinion could be relevant, but could not determine the issue. The trial judge had been wrongly influenced by a mistaken understanding of the manager’s evidence concerning which step was difficult to see.
4. The pre-action correspondence did not amount to a concession that warning signs or hazard tape were necessary. The parties had largely been at cross-purposes, and any such concession would in any event have had limited relevance to the court’s independent assessment of safety.
5. The Court of Appeal assessed the photographs itself because they were the only relevant evidence on safety. The ramp was an entirely safe means of changing levels. Although the steps were not safe for wheelchairs, their position and change in level were sufficiently apparent from the layout, seating areas, change of surface, and nosing. A wheelchair user taking reasonable care would avoid them. The premises were therefore reasonably safe for wheelchair users, and it was unnecessary to determine the alternative argument on contributory negligence.

• Court of Appeal (Civil Division): On 30 June 2011, the appeal was allowed and the claimant’s claim was dismissed: [2011] EWCA Civ 753.
• Norwich County Court: District Judge Sparrow’s order of 27 September 2010 held that the claimant was entitled to recover damages from the defendants, with a one-third reduction for contributory negligence.