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Esdale v Dover District Council

The significance of a local authority's intervention policy when considering a claim under s.2(2) of the Occupiers' Liability Act 1957.

The Court of Appeal has recently given judgment in the case of Esdale v Dover District Council in which Alexander Macpherson appeared for the successful respondent. The appellant sought damages for personal injury after having tripped on a path outside her home. The local council was the occupier of the path, and had instructed an inspector to carry out regular maintenance inspections of it. The council's inspector adopted a policy of putting down changes in level for repair whenever they exceeded ¾ inch, and at trial his evidence was that on a visual assessment the defect in question had not exceeded this criterion.

HHJ Murdoch QC at first instance found as fact that the change in level exceeded ¾ inch and that it had had these dimensions for a period of several years over which the inspector had been carrying out his inspections. However, the trial judge also found as fact that the path was reasonably safe, and that accordingly there was no breach of s.2(2) of the Occupiers' Liability Act.

The claimant appealed, contending that the fact that the change in level exceeded the criterion which the council inspector used to determine whether a repair was required meant that the council could not have taken reasonable care to ensure that the path was reasonably safe.

The Court of Appeal dismissed the appeal. Smith LJ gave the leading judgment, and held that the test of whether a defendant council has taken reasonable steps to see that visitors are reasonably safe does not depend upon the safety standards which the council itself has set as a matter of policy. The test is an objective one, and the judge was obliged to form his own independent view of the reasonable safety of the relevant premises. The fact that the relevant defect exceeded the level at which the council's own policy stated that it should be repaired was not determinative of the issue of breach of duty under the Act, and the judge was entitled to find that the path was reasonably safe despite this being the case.

Alexander Macpherson was instructed by Anne Wilson of Vizards Wyeth.


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