Esdale v Dover District Council

This is an appeal from the order of HHJ Murdoch, QC, in Canterbury County Court on 13 May 2009. The judge dismissed the claim of Mrs Mary Esdale for damages for personal injuries sustained when she tripped on a footpath which was the responsibility of the defendant, Dover District Council. The judge held that the council had not been in breach of the common duty of care imposed on it by the Occupiers Liability Act 1957. Mrs Esdale now appeals that decision with the permission of Sir David Keene.

The council was the owner and occupier of a block of flats known as York House, Dover. Mrs Esdale lived in one of the flats. On 31 May 2006, at which time she had lived at York House for about eight months, she tripped and fell on a pathway which gave access to the building entrance. The pathway was about four feet wide and was bounded on one side by metal railings and on the other side by shrubs. On the side where it was bounded by shrubs, some scaffolding had been erected at the time, the bases of which were on the edge of the footpath.

As can be seen from the photographs in our bundle, the path was constructed partly of concrete and partly of tarmac. Where the two materials met there was, at the time of the accident, a change of level, like a small step running at a slight angle across the width of the path. Mrs Esdale was familiar with the path and told the court that she had previously noticed the change in level. She had not previously thought that it was dangerous, although she was of the view that the whole path was dangerous. However, she had not thought of reporting its condition to the council. Once she had suffered her accident, which resulted in quite nasty injuries, she reported the accident and the condition of the path to the council.

Mr West, who was employed by the council to inspect their premises and to make reports of defects which required attention, told the judge that the standard he applied on inspections, as a sort of rule of thumb, was that, if he found a defect which was more than ¾ inch in height of depth, he would report it for repair. However, this was a not a strict rule. He took other factors into account. He had inspected this footpath on several occasions in the past five years, which was the period for which he had been employed. He had not regarded it as requiring attention. He had reached that conclusion as a result of a visual examination rather than making a measurement.

He came to inspect the footpath when Mrs Esdale’s accident was reported. Even then, he did not measure the height of the defect. He remained of the view that it had not required repair. However, a note made by him after the inspection on his return to the office referred to the defect as a trip hazard, and it appears that he must have recommended that it should be rectified because, on 15 June 2006, a concrete fillet was inserted along the site of the defect so as to provide a sloping surface between the two different levels.

A claim was initiated by Mrs Esdale’s solicitors on 22 June 2006 in which it was alleged that the tripping point had been two inches in height. Perhaps for that reason a belated attempt was made to measure the height of the defect after the concrete fillet had been applied. There was at the hearing some argument about the height of the tripping point, but the judge found as a fact that it had been between ¾ and 1 inch. That finding is not now challenged on appeal.

The claimant adduced evidence that, in the past, residents had complained about the condition of the path. However, there were no records of any such complaints and Mr West said that he was unaware of any complaints during the past five years, the period of his employment. The judge accepted that there had been a complaint about 25 years ago, but not since then. There is no appeal from that finding of fact. There was also evidence that some users of the pathway were elderly and some disabled. However, there was no evidence that any other person has ever suffered a fall or any accident on this pathway.

The judge directed himself as to the requirements of Section 2(2) of the Occupiers Liability Act. He said that the council had to take such care as, in all the circumstances of the case, was reasonable to see that the visitor (the claimant in this case) would be reasonably safe in using the premises for the purposes for which she was permitted to be there. That was plainly a correct direction of law and it is not suggested otherwise. The judge considered whether the pathway with its defect was reasonably safe for the claimant. He reminded himself of the words of Steyn and Dillon LJJ in the case of Mills v Barnsley Borough Council [1992] PIQR 291, which was in fact a case under Section 40 of the Highways Act but which the judge considered to be helpful to the test he had to apply. I can summarise the effect of those dicta by saying that the court said that the duty of the authority was not to provide a perfect surface free of all irregularities; nor was there to be any rule of thumb that a tripping point of more than an inch was deemed to be dangerous and that one of less than an inch was not. The test was one of reasonable foresight of harm to users of the pathway. The question was whether a reasonable person would regard the defect in question as presenting a real danger. It was suggested in the appellant’s skeleton argument that the judge had been wrong to rely on this authority, but it is now accepted that he did not misdirect himself by his reliance on that case.

The judge considered whether the defect gave rise to a real danger. He said that the difference in levels was clear to see. He thought that it would be hard to characterise the defect as other than minor. It was not due to the path breaking up; the path had been as it was for many years. He observed that Mr West had inspected the path many times and had not thought the defect presented a significant danger. The judge considered that Mr West’s judgment, made on many occasions over the years by visual inspection, had been a reasonable one. Also, by instructing Mr West to inspect the pathway periodically, which he had done, and to report any defects found, the council had complied with its duty of care. Accordingly, the judge dismissed the claim.

Mr Littler, for the claimant, immediately asked for permission to appeal on the ground that, as it was the council’s policy to repair defects of more than ¾ inch, this defect should have been regarded as dangerous and should have been repaired. The judge refused permission. So did Sir Richard Buxton on consideration of the papers comprising the application for permission to appeal, which included other grounds. Sir David Keene thought that this single point was arguable and gave permission to appeal. He did not limit the scope of the appeal but encouraged Mr Littler, who appeared for the appellant, to focus on this single ground. Mr Littler has done so, and there is now no challenge to the judge’s findings of fact, nor is it said that he misdirected himself in his reliance on Mills v Barnsley.

The main focus of Mr Littler’s submissions has therefore been the argument which persuaded Sir David Keene to grant permission. He submitted that, where the council has, as a matter of policy, set a standard to be observed by its inspectors, it must follow that, if that policy is not complied with, the council has failed to take reasonable care and is in breach of the common law duty of care. At one stage during his submissions, Mr Littler submitted that the council’s policy, if not complied with, was determinative of the issue. Later in his submissions he accepted that it was not determinative, but submitted that it was an important factor which the judge had not taken into account, or had not taken sufficiently into account.

I cannot accept that submission. The test of whether, in all the circumstances, the council has taken such steps as are reasonable to see that visitors are reasonably safe does not depend upon what standards of safety the council sets itself as a matter of policy. The test to be applied is an objective one. The question, in effect, is: does the judge, as the embodiment of the reasonable person, think that the council has taken such steps as are reasonable, in all the circumstances, to keep the visitor -- the claimant here -- reasonably safe? What the council sets as a policy is certainly not determinative, although I would not go so far as to say that it is irrelevant. One can immediately see that the council’s policy could not be determinative. If the council had policy that footpaths need not be repaired unless there was a defect of more than two inches, no one would suggest that, if that policy were followed, it could be said that the council had taken such care as was reasonable. Conversely, if the council wished to set a very rigorous policy in an attempt to provide a high standard for its visitors, it would not follow that the standard of what is reasonable must be set at the same level.

The judge was not only entitled but obliged to form his own independent view of the dangerousness or lack of it on this defect in the footpath, and also whether the council’s decision, through Mr West, not to order its repair was consistent with taking reasonable care for the safety of visitors. In my view, the judge’s legal approach was correct. The actual conclusion which he reached was one which, in my view, he was entitled to reach. This was a matter of judgment for him and provided that he took all relevant matters into account and did not take irrelevant matters into account, this Court will not interfere with that judgment any more than it will interfere with an exercise of discretion. This is not an exercise of discretion but an exercise of judgment, but the judge’s view will command the respect of this court unless he has clearly erred.

In my view, he did not err in any respect. He certainly did not overlook the fact that the council had, through Mr West’s rule of thumb, made its decisions in accordance with a policy. He was entitled to conclude that, although Mr West had not pursued his own policy by measuring this defect and ordering its repair because it exceeded ¾ inch, that did not mean that the council had not taken reasonable care for the claimant’s safety. For those reasons I would dismiss this appeal.

I agree.

I also agree.