Successful Court of Appeal defence

The decision of the Court of Appeal highlights the obligation on a visitor to take reasonable care for their own safety as against ‘usual dangers’. The decision gives clarity on the duty of the visitors and customers to pay due care and attention and watch where they are going.
 
The Court of Appeal stated that life is full of dangers which may cause injury. Small children develop by encountering and learning to avoid things that can be fallen off, bumped into, tripped over or knocked down. In the common law of occupiers’ liability, ordinary everyday dangers are described as “usual” and as such, do not attract liability. 

A good example of a usual danger is a flight of stairs.  One can fall down a staircase and suffer injury if one does not take reasonable care for one’s own safety.  The common law duty of an occupier to a visitor was to use reasonable care to prevent damage from unusual danger which he knows or ought to know. Such a danger is one which the visitor would neither expect nor anticipate and thus may not be able to guard against by taking normal care.  
 
The Occupier’s Liability Act does not refer to unusual dangers, but the occupier’s duty is to take reasonable care to ensure that a visitor does not suffer injury from a danger on the premises.  This is conditioned by the care a visitor should take for their own safety.  Such care by a visitor is to be expected in the context of usual dangers on the premises precisely because such dangers are to be expected. In the absence of such care by the visitor, the occupier will not be liable.
 
Conversely, a visitor taking care may not prevent accidents from unusual dangers simply because they are unexpected.  The Court of Appeal highlighted that the distinction between usual and unusual dangers remains relevant and often central to the occupier’s liability. 
 
The plaintiff had tripped over a footpath on the forecourt of the defendant’s fuel station suffering injury. The High Court found in their favour and awarded damages.  The Court of Appeal noted the feature over which the plaintiff fell (a footpath) is to be found everywhere, and very commonly in fuel stations. Anybody crossing the street encounters precisely the same danger or hazard and that it could not by any stretch of the imagination be described as “unusual”.
 
The Court of Appeal also decided that the plaintiff must have anticipated the danger presented by the footpath not just because it was a usual danger, but also because she knew about it. It was there to be seen when the Plaintiff drove in to the service station. It was there to be seen when she got out of her car beside the pavement. It was there to be seen when she walked towards it. It is clear therefore that the plaintiff cannot have been taking reasonable care for her own safety in failing to see the footpath over which she fell.

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