Occupiers cannot extinguish their liability for lighting

Whilst increased energy prices continue to impact business’ bottom line costs, and organisations increasingly review unnecessary lighting and other energy usage as part of their ESG focus, a recent decision in the Sherriff Personal Injury Court in Scotland reinforces the importance of maintaining adequate lighting to ensure the safety of visitors.

In Karla Hodgson v Castlehill Housing Association Limited [2023] SC EDIN5, 2022 WL 18539287, the defender was found liable for the injuries sustained by the pursuer when she fell from the bottom step of a stairwell at the housing complex where she was a visitor. The handrail ended before the bottom step and thus she believed the steps ended at that point. The lighting did not extend to that step (something corrected post-accident when a dedicated light over the stairs was installed) and thus she had been unaware that there was a further step to navigate, causing her to fall, even though she accepted that she had used the steps before.

In support of their argument that they had taken reasonable care for visitors, the defender relied on their inspection regime and the fact that, aside from the pursuer’s fall, there had been no other accidents or complaints about the lighting. However, the judge rejected these arguments. The absence of lighting on the step meant the lighting levels at the accident locus fell below the British Standard, and were thus inadequate. Consequently, the unlit step constituted a danger. The Sherriff did not agree that the danger posed by such unlit steps should in and of itself automatically have been obvious to the defenders. However, the defender’s own inspector had used the steps at night, knew or ought to have known that others would use the steps at night and was on notice of the inadequate lighting. He had conceded that the steps were dark but “not dark dark”. The absence of accidents or complaints (which did not mean that no one had actually fallen in the past) was just one factor to be taken into account in all the circumstances. There was a “danger of which the defenders had actual knowledge” and thus a material risk of injury existed. The Sherriff therefore concluded that a reasonable occupier would have installed a dedicated light and thus the defender had not taken such care as was reasonable in all the circumstances of the case. Consequently, the defender was found liable, with no discount made for contributory negligence, on the basis that the pursuer had used the handrail whilst descending and was unable to see where she was walking due to the lack of light.

Given the energy consumption caused by lighting, some businesses have actively considered switching off lighting at night in corridors and car parks. However, it should be remembered that employers have statutory duties to ensure premises are adequately illuminated. Regulation 8 of the Workplace Health Safety and Welfare Regulations 1992 expressly dictates that “every workplace shall have suitable and sufficient lighting” with the definition of workplace being wide enough to cover any place within the premises to which such person has access while at work. As the Hodgson case illustrates, lighting is likely to be highly relevant to an occupier’s duty too under the Occupiers’ Liability Act 1957 to ensure that reasonable care is taken to ensure that visitors are reasonably safe. In addition, where an occupier has reasonable grounds to believe that a danger exists and that people may come into the vicinity of it, inadequate lighting (whether due to the failure to install or failure to have it working at the relevant time) may also fix the occupier with liability for trespassers too.

As case law shows, where lighting is subdued but does not affect the safe functional use of premises, this is likely to protect the occupier, particularly where supported by an appropriate risk assessment and a system of inspection/maintenance of the lighting to ensure it remains adequate and operative. Similarly, if premises are not known to be used at night, this may equally protect an occupier who fails to ensure adequate lighting, particularly if other measures are taken. In most cases, however, illumination is likely to be an integral safety requirement.

However, for employers and occupiers keen to satisfy their legal liabilities whilst minimising energy consumption, the Department of Energy & Climate Change’s Guide to Energy Efficiency contains some useful things to consider:

• Install timer switches;
• Review external/security lighting;
• Install movement sensors to ensure lights only come on when people are in the vicinity;
• Consider lighting zones with different switches so the minimum area required is lit;

Whilst concerns around energy consumption are real and legitimate, they will provide no defence for those with responsibilities for people and places who fail to protect them through sufficient lighting. Safety must remain the paramount consideration ahead of saving cost, but there are ways of ensuring both.