17.12.08

Court of Appeal overturns first instance decision in favour of Defendant relating to football incident.

Facts: On 26 August 2003 Mr Hall was on holiday with his family at a caravan park operated by Holker Estate Co Ltd. Mr Hall and his son were having an informal game of football on an area of grass. A portable tubular goal frame was set up but was not properly pegged down. Whilst Mr Hall was keeping goal he caught his foot in the netting and fell to the ground. The frame tilted forward and fell on him. Mr Hall sued Holker for negligence, alternatively breach of their common duty of care owed under the Occupiers' Liability Act. At first instance the Judge found that whilst the frame had not been properly pegged down at the time of the accident, this situation would probably not have existed for “very long”. Holker did take “some care” to ensure the equipment was safe and Mr Hall had not proved that their failure to replace the missing pegs as a result of an inadequate system of inspection.  

Held: The approach of the Court of Appeal in Ward v Tesco (1976) was adopted. The accident was caused by a want of safety at the time (i.e. the absence of pegging). The Judge had erred in reversing the burden of proof, wrongly placing the onus upon Mr Hall to prove Holker’s system of inspection was inadequate. Once Mr Hall had demonstrated that the accident occurred due to missing pegs, the evidential burden of proof passed to Holker to show they had a proper system in place, implemented to afford reasonable protection to visitors to the park and that the accident would have been likely to occur irrespective of such a system being in place. On the facts, Holker had failed to demonstrate they had taken reasonable and adequate steps to address the risk. Further, there was no basis for holding that it was likely the accident would have occurred irrespective of the existence of a proper and adequate system.  

Comment: This Judgment serves as a reminder that in cases of this nature, it is for a defendant occupier to demonstrate by evidence or reasonable inference, that (a) reasonable systems of maintenance and inspection were in place; and (b) on the balance of probabilities, despite the existence of such systems, it is likely the accident would have occurred in any event. Practically, this requires the identification of risks and the implementation of systems of maintenance and inspection to reasonably deal with such risks. It also highlights the importance of preserving evidence in order to establish these issues.