Trips and slips are a common occurrence and most lead to no more than temporary embarrassment with no long term effects. However, when an injury is suffered as a result of the trip what test will the court apply in determining the fault of an occupier?

It is established law that an occupier owes a common duty of care to ensure that all visitors are reasonably safe whilst lawfully on the premises (Section 2, Occupiers’ Liability Act 1957). Therefore for a claim to succeed, it will have to be established that the occupier has failed to guard against hazards which give rise to a foreseeable risk of injury.

Clearly, the presence of even a minor defect on a thoroughfare, however slight, poses a potential risk to pedestrians. However, case law in this area tells us that not all foreseeable risks give rise to a duty to take remedial action.

In Mills -v- Barnsley Borough Council [1992] PIQR 291, the claimant alleged that she had been injured as a result of catching her heel in a small hole in the road. The road consisted of paved slabs interspersed with paving bricks. One of the bricks had broken off leaving a hole which was two inches across at its widest and one and a quarter inches deep. The claim was dismissed on the basis that such small defects should be viewed as a circumstance of everyday life and should be expected by the public; ‘the liability is not to ensure a bowling green which is entirely free from all irregularities’ (LJ Dillon). Thousands of people had trodden the same path prior to the appellant suffering her accident without any difficulty.

James -v- Preseli Pembrokeshire District Council [1992] PIQR 114, went further and affirmed that the claimant must prove that the particular location in which she fell was dangerous – the condition of the pavement as a whole, even if in need of obvious repair, is irrelevant.

This line of authority was considered in the recent Court of Appeal case of Dean and Chapter of Rochester Cathedral -v- Leonard Bell [2016] EWCA Civ 1094. The claimant tripped whilst navigating a narrow path within the grounds of Rochester Cathedral. It was alleged that a small lump of concrete protruding from near a bollard had caused the accident. In dismissing the claim LJ Elias cited Mills and concluded that a visitor remains ‘reasonably safe notwithstanding that there may be visible minor defects on the road which carry a foreseeable risk of causing an accident or injury’.

The same principles would also appear to apply to private driveways. In a recent case, in which we successfully represented an NHS trust, the alleged accident arose in similar circumstances. The claimant was employed as a community staff nurse. In early 2013, at approximately 20:15, whilst calling on a patient in the community, she tripped and fell on the drive leading up to his property. The drive was constructed of ‘crazy paving’ with the exception of a small gravelled area designed to catch leaking oil from parked cars. The claimant alleged that this is what had caused her to trip. Proceedings were issued against both the trust, as the employer, and the occupier of the premises.

In his judgment DJ Wallace held that the alleged defect in the path, with a difference in levels of just over an inch, did not constitute a real source of danger and that it was not a risk which either defendant could have been expected to have reasonably guarded against.

The judgment can be seen, therefore, as a restatement of the above position and that in order to impose liability in such cases, a claimant may have to prove that the risk posed by the particular defect was more than a minor defect commonly found on many roads and pathways, i.e. there must be a real source of danger.

The law must also strike a balance between the nature and extent of the risk on one hand and the cost to the occupier of eliminating it on the other.

Whilst it would appear therefore to be well-established that mere foreseeability is insufficient to establish liability, the occupier needs to be aware that each case will be considered on its merits. As LJ Lawton observed in Rider -v- Rider [1973] 1 Q.B.506 ‘a stretch of uneven paving outside a factory probably would not be a danger for traffic, but a similar stretch outside an old people’s home... might be’.

Slips and trips are the most common cause of non-clinical claims for many of our client trusts. Whilst we would strongly encourage them to continue to have robust systems of maintenance and inspection of outside car parks and thoroughfares, as the above case law and recent experience demonstrates, there is nevertheless scope for arguing that any duty of care to ensure the safety of visitors, when it comes to minor defects, is qualified.