Determining duty of care is not always a straightforward matter
The recent case of Rogerson -v- Bolsover District Council in the Court of Appeal demonstrates that determining which of the parties is required to prove their case is not as straightforward as it might seem. Generally, the claimant, who makes the claim, must prove everything while the defendant has to prove absolutely nothing. However, this case revolved around a tenant who, while mowing her lawn, stepped on an inspection cover that collapsed, causing her injuries. Her tenancy agreement revealed that the landlord was obliged to maintain the exterior of the property.
The tenant was required to demonstrate that the landlord had an inadequate inspection regime and was therefore liable under to the Defective Premises Act of 1972. To support this view, a chartered civil engineer reported that the cover was between 40 and 60 years old and corroded, and that a relatively straightforward pressure test would have revealed the defect. The accident occurred in 2014 and the council relied upon evidence from inspections undertaken in May 2013 and January 2014.
Importantly, the court decided the onus was on the landlord to show that duty of care under the Act had been complied with and, although the initial trial concluded the defect was not known to the landlord, the court ruled that the council should have been aware of the defect as it was a clear and obvious safety risk.
This contrasts with another Court of Appeal case, that of Cook -v- Swansea City Council in 2017. In that case, which involved slipping on ice in an unmanned car park, the claimant alleged that the local authority should have gritted the car park whenever the weather forecast predicted cold or icy weather. However, the council operated a reactive system of gritting only if a member of the public reported seeing ice on the car park surface. Nonetheless, the court concluded that the council had not breached its duty to the claimant. The cost of implementing proactive steps and taking preventative measures would have been disproportionate to the risk and would have directed resources away from areas where there was more urgent need.
These two contrasting decisions highlight the need to consider all the circumstances and legislation before deciding whether to press on with a claim.
Garry Sleet. Senior Litigation Executive. Personal Injury department.George Ide