Après Lounge Limited v Nicolle Wade

Under section 2(2) of the Occupiers’ Liability Act 1957, an occupier must take reasonable care to keep visitors reasonably safe. The duty does not require measures capable of preventing every accident or constant surveillance of the premises.

In assessing reasonableness, the court must consider all the circumstances, including the nature of the risk, the likelihood and seriousness of injury, the activity giving rise to the risk, and the cost and practicality of further precautions. In slipping cases, a claimant retains the legal burden of proving negligence, although proof of an unusual danger may create a prima facie case requiring an evidential response from the occupier.

The claimant was injured after slipping on a spilt drink on the wooden floor of the defendant’s late-night bar. She brought a claim in negligence and under the Occupiers’ Liability Act 1957.

The County Court found that the defendant operated a system involving staff checks at intervals of 10 to 15 minutes, but held that the system was inadequate in the circumstances. Judgment was entered for the claimant. The defendant appealed on liability, arguing that the judge had imposed too high a standard, failed to address causation, and acted unfairly by deciding the case on an issue not properly argued.

1. Appeal allowed. The County Court’s judgment was set aside and judgment was entered for the defendant.
2. The appellate court would not interfere with the trial judge’s evaluative conclusions unless he had fallen into error. The judge did so by treating the defendant’s system as one involving checks only every 10 to 15 minutes.
3. The accepted evidence established continuous monitoring by several members of staff who continually walked around the bar, with every area checked at least every 10 to 15 minutes. Staff were trained to respond immediately to spillages. That was a proactive and reasonable system in the circumstances.
4. Section 2(2) imposed a doubly qualified duty: reasonable care to ensure that visitors were reasonably safe. It did not impose an absolute obligation to prevent any spilt drink from being present or require constant surveillance. Requiring such measures would be a counsel of perfection and would go beyond the statutory duty.
5. The authorities on slipping cases established that the legal burden remained on the claimant, although proof of a hazard may create a prima facie case. The occupier may displace that case by showing that it operated a reasonable system. The court must assess the system in the circumstances of the particular premises.
6. The defendant did not rely on a separate argument that the accident would have happened even with a proper system. Accordingly, the judge was not required to devise a hypothetical alternative system and determine whether it would have prevented the accident. Causation remained the claimant’s burden, but it was not the issue requiring determination on these facts.
7. The alleged procedural unfairness could not properly be resolved without a transcript. It was unnecessary to determine that ground because the appeal succeeded on the substantive grounds.

• High Court (King’s Bench Division): appeal against the judgment of His Honour Judge Hedley in the County Court at Leicester on 17 November 2021. Appeal allowed and judgment entered for the defendant.