Abigail Jennings, Senior Associate of DWF Law LLP represented the Defendants. Daniel King of DWF Chambers represented the Defendants at trial. DWF Law LLP were instructed in turn by NFU Mutual.
Background and circumstances of the accident
Ms. West, a children's author and caterer, attended an author's retreat at the Defendants' rental cottage premises commencing on 8th November 2019. On the night of the accident, she tripped over a boulder in the car park while returning to her cottage after smoking a cigarette. The Defendants admitted that Ms. West was a lawful visitor and so they owed a duty of care under the Occupiers Liability Act 1957.
Issues and evidence
The Court had to determine whether the boulder represented a danger or a trap for lawful visitors and if the Defendants breached their duty of care.
We argued that the boulder was not placed on a normal pedestrian traffic route, that the boulder was there to be seen (and Ms. West reasonably knew about the presence of the same), and that adequate lighting was provided. The Claimant argued that her choice to deviate from the normal walking route, which she had used minutes earlier, was due to her intoxicated state.
Evidence included photographs demonstrating the layout of the property, evidence of lighting conditions provided by Mr and Mrs Blantern, and Ms. West's state of intoxication. CCTV footage showed Ms. West's movements and the lighting conditions at the time of the incident in the car park.
Findings
Intoxication
The Court considered the amount of alcohol Ms. West had consumed. While Ms. West claimed to have had only two glasses of wine, the court found this implausible based on witness testimony and photographs. The court concluded that Ms. West was likely under the influence of alcohol to a greater degree than she claimed, which impaired her judgement.
Awareness of boulders
Ms. West claimed she was unaware of the boulders' presence, despite having visited the premises several times before. The court found it difficult to accept that she would not have noticed the boulders, especially since she had to pass three larger boulders first before she stumbled over the smaller one.
Lighting conditions
The court examined the lighting conditions in the car park. Ms. West claimed the area was poorly lit, and her friend acting as a witness said that it was 'pitch black'. However extensive CCTV footage showed several motion-activated lights which were lit at the time of the accident, in addition to other permanent lighting. The court concluded that the lighting was adequate and that the car park was not as dark as Ms. West and her witness described.
Route
The Court found that the larger boulders already passed would have reasonably alerted Ms. West to the fact that the "fence route" was not as accessible as the route she had just taken. The Court did not therefore consider that the route taken by Ms. West was reasonably foreseeable. The Claimant also accepted that she was taking a shortcut when the incident occurred. The Defendants had undertaken a risk assessment and had a health and safety policy, albeit this did not separately identify any risk from the boulders (or any other specific potential hazard) and just assessed the outdoor area in general terms.
Submissions
The Claimant made three principal submissions, of inadequate lighting, failure to warn of the hazard and failure to make a suitable risk assessment of the hazard. The Claimant placed reliance on the case of White Lion Hotel v Deborah James [2021]. It was submitted that there was a foreseeable risk of injury which had not been mitigated.
Our primary case was that the boulder did not represent a danger or a hazard in the circumstances; they were in obvious positions, not on a foreseeable walking route and were effectively no different to a bollard. They were also well lit and there to be seen. The Defendant pointed to the fact that the Claimant had walked passed two of the boulders before the incident and must have known about them from her numerous visits to the car park in daylight. They were not therefore a hazard or trap in the circumstances. Our secondary case was that an adequate risk assessment had been carried out. In particular the lighting system was regularly checked and properly maintained. Finally, if the Claimant succeeded then a high level of contributory negligence was appropriate due to intoxication and inappropriate footwear.
Judgment
The Court concluded that the boulder did not represent a hazard or danger in its position. Further even if there was evidence that this was a regularly used and so a foreseeable route, which was not in this case, the duty to keep visitors reasonably safe would be limited to the provision of reasonable illumination, and no further warning such as a notice of luminous paint would be required. The Defendants had in place more than adequate lighting. The Court considered that to require more than this 'would amount to a counsel of perfection which was unnecessary in the circumstances'.
The Court confirmed that had the boulder been established as a hazard, given that Ms. West knew or ought to have known about the presence of the boulders and had consumed a sufficient amount of alcohol to impair her judgment, a 50% finding of contributory negligence would have been appropriate.
The judgment of HHJ Wood is useful to defendants and their insurers, as it clarifies the extent of the duty owed by occupiers to visitors on their premises. It also assists with assessments of contributory negligence due to intoxication.
Author: Abigail Jennings
