Clark v Bourne Leisure

[2011] EWCA Civ 753

Premises were reasonably safe for wheelchair users

The defendant (D) appealed against a decision in the County Court awarding the claimant (C) damages for an accident when she fell down steps whilst in her electronic wheelchair at a holiday park in Great Yarmouth.

C was visiting a bar area, which was on three different levels with a ramp on one side and two steps situated several feet apart on the other side. The parties agreed that the ramp provided a safe means of access for wheelchair users. C had used the ramp earlier in the evening but when she came to return to the lower level she used the steps by mistake. Her wheelchair tipped and she fell out, sustaining injury.

C alleged that the steps were a concealed hazard and the premises were not reasonably safe for a wheelchair user contrary to the Occupiers’ Liability Act 1957. D said that the steps were clearly visible and the change in levels was highlighted by a change in flooring material. The top step was wood and the second step (some 7 inches below) was carpeted. Both steps were edged with rubber and metal strip.

Court of Appeal held

Appeal allowed. C lost:

  • The judge had to make his own decision as to whether the premises were reasonably safe for wheelchair users. The Court of Appeal held that the trial judge had been influenced wrongly by D’s own safety manager, who appeared to concede that the highly patterned carpet made it difficult to see the change in level. In fact that concession related to the second step, not the first step where the claimant actually fell. In addition the trial judge thought that D had conceded, in correspondence, that the change in level required signage indicating the hazard; in fact that correspondence related to a misunderstanding when D thought C’s accident had taken place on the ramp, not the steps. Accordingly the judge’s decision could not stand.
  • The parties wanted the appeal court to rule on the matter rather than remit for retrial. The Court of Appeal held on the facts that, taking into account the general layout of the bar area with different seating areas, the change in level was obvious. The ramp was safe for wheelchair users. The stairs were not but they were visible and any wheelchair user taking reasonable care for his or her own safety would avoid using them. The premises were therefore reasonably safe for wheelchair users.

Comment

This is a further appeal court judgment highlighting the need for visitors to take care for their own safety rather than placing all the responsibility upon the occupier. See, for example, recent cases of Geary v Wetherspoon, Grimes v Hawkins and Hufton v Somerset CC.