Kicked into touch

In the second of a two-part series on recent occupiers’ liability cases, Tony Cawley explains how having a system of inspection and maintenance – even if contracted out – can make a difference.

In Khan v LB Hammersmith & Fulham [2010] Mayor’s & City of London Court, the claimant claimed damages for injuries sustained as a result of an incident whilst he was playing football with some friends, in April 2008, in a communal caged football court. The ball was kicked out of the court and whilst he was retrieving it the claimant alleged that the gate to the caged court struck him on the head causing a laceration injury.

The claimant's case

The claimant's claim alleged breach of statutory duty under the Occupiers' Liability Act 1957 and common law negligence.

The claimant alleged that at the time of the incident there was a problem with the opening of the gate in that the metal bolt, on the bottom exterior of the gate, would lower down and drag along the paved area outside the court and catch on a raised paving stone and recoil the gate.

Whilst attempting to exit the court to retrieve the ball the claimant allegedly attempted to open the gate but it snagged immediately. The claimant used a little more force to open the gate thus causing it to swing open away from him and to his right. It then hit the raised paving stone and the gate recoiled with such force so as to strike the claimant on his left forehead.

The alleged part of the gate which struck the claimant was the sliding horizontal bolt situated approximately half way up the gate some 52.5 inches from ground level.

The defendant's case

The defendant relied on the fact that, at all material times, the caged football court was subject to a reasonable system of inspection and maintenance.

The defendant had contracted out the provision of inspection and maintenance services from 1 July 2007 to RoSPA Playground Management Ltd. As part of that contract, the football court was to be inspected on a quarterly basis and a full annual inspection was to take place.

The inspector attended the court on 12 February 2008 to carry out the full annual inspection and a quarterly inspection was carried out 11 days after the alleged accident on 7 May 2008. On neither occasion were there any problems reported regarding the gate.

In cross-examination the inspector accepted that, on the basis of the photographic evidence before the court, there appeared to be a difference in level of the paving stones but added that the bolt would either slide over it (as evidenced by the grooving in the stones due to dragging over time) or that it would stop the gate. The inspector did not accept that the gate would recoil to strike the claimant.

The Court also heard that the claimant was 70 inches tall and yet the bolt which struck him was only 52.5 inches from ground level.

The claimant could not explain how the gate opened away to the claimant's right yet the injury was on the left hand side of his head.

The judgment

The judge held that on the balance of the evidence she was not satisfied that the claimant had made out his claim.

The judge held that she had concerns as to the veracity of the claimant's evidence and did not find him to be a cogent witness.

In particular, the claimant failed to prove that the gate would have recoiled with such force as alleged, he had failed to explain how the significant difference in height resulted in the horizontal bolt striking his forehead and he failed to explain how he was struck on the left hand side of his head.

The trial judge held that the claimant had not made out his claim and dismissed his claim for damages and ordered the claimant to pay the defendant's costs.

Comment

It is the duty of an occupier to ensure that so far as is reasonably practicable its visitors are free from the risk of injury. Contracting out to a company for the provision of a system of regular inspections, can really impress the Court as here, but only if it is well run.

Wherever there are obvious evidential discrepancies such that an early assessment of a claimant's credibility can be undertaken, defendants should not deterred from adopting a robust, yet realistic defence to the claim

Tony Cawley of Barlow Lyde & Gilbert LLP acted for the successful defendant in this case. He can be contacted on 020 7643 7801 or This email address is being protected from spambots. You need JavaScript enabled to view it..

Part one can be read here: An inspector calls