Butcher v Southend-On-Sea Borough Council

Occupiers’ liability is determined by whether the occupier took such care as was reasonable in all the circumstances to keep visitors reasonably safe. The relevant factors are not a mandatory checklist. Their weight depends on the facts. The absence of previous accidents may assist an occupier, but it is not decisive. A hazard which developed over time may reasonably have been discoverable through ordinary inspection, even where no professional risk assessment was required. Where it was reasonably foreseeable that a visitor might inadvertently step off a path and lose balance because of a visible drop, a finding of breach was open to the trial judge.

Mrs Linda Mary Butcher was injured after stepping from a path beside council-owned sheltered housing and falling because of a drop between the tarmac and adjoining earth. The council rectified the depression shortly after the accident. His Honour Judge Yelton found the council liable under the Occupiers Liability Act 1957, but reduced damages by 50 per cent for contributory negligence.

The council appealed against liability. It argued that the judge had set the standard of care too high and had failed to weigh relevant matters, including the absence of previous accidents, an earlier premises audit and the limited size of the drop. The central issue was whether the finding of breach was one with which the Court of Appeal could properly interfere.

1. Appeal dismissed. The trial judge had made no error in finding the council liable. His finding of 50 per cent contributory negligence was not challenged.
2. Section 2(2) of the Occupiers Liability Act 1957 required consideration of whether, in all the circumstances, the council had taken reasonable care to see that visitors were reasonably safe. The duty was not an absolute obligation to prevent people falling.
3. The factors identified in Clerk & Lindsell, including the obviousness of the danger, warnings, lighting, fencing, the visitor’s characteristics and purpose, the occupier’s knowledge, the difficulty and expense of remedial work, inspection systems and professional advice, were matters for evaluation according to the facts. They did not constitute a checklist which a judge had to address item by item.
4. The absence of previous accidents was a factor in the council’s favour, but the prompt and inexpensive rectification of the depression was a factor against it, although liability was not to be assessed with hindsight. The premises were inspected regularly, and the drop was clear to those responsible for the property. The earlier audit did not establish safety because it was conducted two years before and the size of the depression at the relevant time was unknown.
5. It was reasonably foreseeable that a visitor, including an elderly resident, might leave the diagonal line of the path, step partly onto the adjoining ground and lose balance because of the drop. Once that finding was made, the conclusion that the council had failed to take reasonable care followed on the facts.
6. Beaton v Devon County Council was a decision on its facts. The judgments in that case did not lay down general principles governing the present appeal.

Lord Justice Kitchin agreed with Lord Justice Bean’s reasons.

• Court of Appeal (Civil Division): Appeal from the Southend County Court dismissed. The Court upheld the finding that the council was liable, leaving the 50 per cent finding of contributory negligence unchallenged.
• Southend County Court: His Honour Judge Yelton heard the personal injury claim on 12 September 2013 and found the council liable under the Occupiers Liability Act 1957, subject to 50 per cent contributory negligence.