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Burden of proof in Occupiers’ Liability Act claims

The council was not liable for an accident at its swimming pool when the claimant was unable to provide any evidence as to the cause of her fall.

Annette Gilmore v Sefton MBC

Summary

The council was not liable for an accident in the changing room of its swimming pool when the claimant was unable to provide any evidence as to the cause of her fall.

Facts

The claimant slipped in the changing area. She slipped and fell again as she tried to get up. Her case was that the locus was particularly slippery and hazardous as a result of a substance that was not merely water. She also alleged that wet floor signs were not present. The leisure centre undertook two formal checks of the changing area every hour. There were also staff members walking in and out of the changing area throughout the day who would identify any hazards. Wet floor signs were permanently in place throughout the changing area and the floor tiles were of standard construction with adequate drainage.

Judgment

The claim was dismissed. The fact the claimant was unable to adduce any evidence as to the cause of her fall was effectively fatal to her claim. The judge did not accept the claimant’s assertion that the substance was more than just water and emphasised that it was for the claimant to prove that there was a danger in the state of the premises that caused her fall. In any event it was held that the council’s system was sufficient to discharge its duty of reasonable care under OLA 1957.

Comment

As with all tripping and slipping claims, the burden rests with the claimant to prove the cause of the accident. If the claimant is unable to prove a danger in the state of the premises under OLA 1957 (or a section 41 breach if it is a claim under the Highways Act 1980) then the claim may well fall at the first hurdle.

Weightmans LLP’s Local Government Team acted for Sefton MBC in this case.