knowledge 30 November 2017 |

No Liability For Occupier Where Visitor Does Not Take Reasonable Care

In Byrne v Ardenheath Company Ltd¹ the Court of Appeal overturned a significant award of damages in the High Court in a personal injuries case where the plaintiff had slipped and fallen in the car park of a shopping centre owned and managed by Ardenheath.  The Court of Appeal held that Ardenheath could not reasonably have been responsible for Ms Byrne’s fall under the terms of the Occupiers Liability Act 1995.

In the High Court, Hanna J had found the defendants liable in negligence for Ms Byrne’s fall. On the evidence of the plaintiff’s expert, an engineer, the High Court found that there was a design fault in the car park and that Ardenheath ought to have provided additional pedestrian exits to ensure Ms Byrne’s safety.  The court did however then reduce the award of damages by 40% due to Ms Byrne’s contributory negligence in taking a short cut out of the car park by walking down a sloping grassy verge in wet conditions with unsuitable footwear.

On appeal, Irvine J stated that although an appellate court will generally be unwilling to disturb an award of damages made at first instance, it may do so if there is an error in the award so serious as to amount to an error of law.

In this case, it was first necessary to establish whether liability was owed by Ardenheath to the plaintiff at all.  Section 3 of the Occupiers Liability Act 1995 states as follows regarding the liability owed by occupiers towards visitors to their property:

"(1) An occupier of premises owes a duty of care (“the common duty of care”) towards a visitor thereto except in so far as the occupier extends, restricts, modifies or excludes that duty in accordance with section 5.

(2) In this section “the common duty of care” means a duty to take such care as is reasonable in all the circumstances (having regard to the care which a visitor may reasonably be expected to take for his or her own safety and, if the visitor is on the premises in the company of another person, the extent of the supervision and control the latter person may reasonably be expected to exercise over the visitor's activities) to ensure that a visitor to the premises does not suffer injury or damage by reason of any danger existing thereon."

The Court of Appeal therefore had to assess whether the defendants had taken “such care as is reasonable in all the circumstances” to ensure that Ms Byrne did not suffer any injury. Irvine J set out the criteria used by the appellate court in assessing this as examining the probability of an accident occurring, the gravity of an injury likely to be caused by the risk posed, and the cost of eliminating that potential risk.  Having taken these factors into account, the court concluded that the risk posed by the layout of the car park was minimal and that Ardenheath was entitled to assume that a visitor to the property would exercise reasonable care for their own safety in exiting the car park. The court therefore concluded that Ardenheath was not liable for the injuries sustained by Ms Byrne, and allowed Ardenheath's appeal.

Irvine J noted in her judgment that “Judges should be careful when interpreting statutory provisions such as s. 3 of the 1995 Act to ensure that they do not inadvertently and contrary to the intention of the legislature by their judgments end up denying children the joy of running down a grassy slope in a public park on a dry summer day or the golfer the pleasure of playing to an elevated green surrounded by a grassy bank.”

Irvine J also urged caution by courts in assessing expert opinion as evidence, indicating that when the court is not dealing with a complex specialist field of activity, a trial judge should “bring ordinary common sense to bear” on their assessment of the evidence.

The Court of Appeal’s endorsement of personal responsibility and of common sense and reasonableness to apply in the assessment of occupiers’ liability to third parties will be welcomed by owners and occupiers.