England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Oldham County Court
His Honour Judge Armitage QC
60L04529

		Royal Courts of Justice Strand, London, WC2A 2LL
		17/12/2008

Sir Mark Potter P:

1. This is an appeal against the decision of HHJ Armitage QC on 12 November 2007 when he gave judgment dismissing the claim of the appellant (whom for convenience I shall call the claimant) for damages sustained while playing football with his son.
2. On 26 August 2003 the claimant was on holiday with his family at a caravan park, where they had a share in a van. The caravan park was owned and operated by the respondent defendants and it was common ground that the claimant was the lawful visitor of the defendants for the purpose of the Occupiers Liability Act 1957. The claimant and his son Thomas (almost 11 years old), with a friend of Thomas of similar age, were engaged in an informal kick-about game of football on a patch of grass which was part of the caravan park. There was a portable tubular goal frame set up on the grass by the defendant operators of the caravan park. While the claimant was keeping goal the framework tilted forward and fell on him, the cross bar causing nasty injuries to his jaw and teeth. He sued the defendants for negligence, alternatively breach of their common duty of care owed under the Occupiers Liability Act.
3. In addition to general allegations of failing to provide goal posts that were safe for users in the circumstances and to install or maintain the goal posts in such a manner that they would not present a danger to users, the relevant particulars of negligence and/or breach of statutory duty alleged:

c. Failing to undertake any or any adequate risk assessment in order that the dangers to users of the goal posts could be identified and/or minimised and/or a suitable system of use put in place.

d. Failing to devise and implement a system of inspection and/or testing to ensure that the goal was safe for users of the facilities.

e. Failing to ensure that the goal post was of such design and/or construction as to be free from risk of falling on players.

f. Failing to ensure that the goal was adequately supported by restraining pegs or otherwise and/or that the pegs used provided sufficient security for the goal to ensure that it would not fall over and/or constitute a hazard to users.

g. Failing to implement a system whereby the pegs could not be removed or loosened in order that the goal posts became insecure and dangerous, in particular given that the defendant knew or should have known that the pegs used to support the goal posts had been removed on other occasions by visitors to the site to use as tent pegs.

h. In the alternative, failing to ensure that the goal posts would not become insecure and/or dangerous if the pegs were removed or loosened.

i. Failing to warn users of the facilities that the goalposts were dangerous if not secured by pegs to support the posts.

k. Permitting the claimant to use the facilities when they were not safe by way of the loosened or absent pegs when the same presented foreseeable risk of injury to users, whether orally or by signage or otherwise.

4. The goal was purpose made by suppliers of sports equipment. It was made of metal tubing, and consisted of two uprights, a crossbar just under 4 feet high, and roughly triangular supports which ran backwards from each upright, along the ground, and thence returned diagonally up to the top of the uprights. The frame work was fitted with a net. The goal was intended to be moveable to different positions on the grass. However, it was one of a pair set up for use singly or together by persons practising shots or playing an end-to-end game and had been in situ for a number of years. The goal was designed to be anchored by pegs holding the bottom sections of the supports (and preferably also no doubt the back of the net) by being pushed or driven into the ground.
5. The Judge found that one of the boys scored a goal past the claimant as keeper. At the time the net of the goal was not in its correct position i.e. stretched between the members of the frame, but was hanging down curtain-like just behind the uprights. The claimant retrieved the ball from the net and, having done so, caught his foot in the netting and fell to the ground. As he lay on the ground the goal tilted and fell over forwards and the crossbar struck him in the face. The claimant's own recollection was that the accident had happened in a somewhat different way. However, the Judge held that his recollection, while genuine, was erroneous and preferred the recollection of the claimant's son who stated that the accident occurred as I have summarised it.
6. It was the evidence of the claimant that there were no pegs securing the supports (or the net) at the time and that as a result the goal had been able to topple forward. This was put in issue by the defendants. However, the Judge found that the goal could not have been properly pegged down at the time of the accident either along the supports or the bottom of the net, otherwise the accident would not have happened. The Judge's finding at paragraph 62 of his judgment was as follows:-

"It seems to me that it is much more likely than not that at the time when the claimant was injured this goal was not properly pegged down. It is not possible for me to find whether there was any particular number of pegs in any particular part of the system; that is to say, whether any part of the frame was pegged or whether any particular part of the net was pegged. The strong inference is that none of it was pegged on the basis that it actually fell over on the claimant's face in the circumstances that Thomas has described." (emphasis added).

7. The Judge also heard and apparently accepted the evidence of the claimant and his wife that, about eight months after the accident on 8 April 2004, they went to the site again and found the goalpost pegged, but inadequately pegged, in that there were 5 pegs holding the net at the back of the goal but no pegs on the frame or supports themselves as recommended by the manufacturers. In that state, the goal would not fall over, because of the pegs along the net, but its centre of gravity was such that it could be tipped forward without much force until it was held by the net going taut, thus demonstrating the danger of tipping if adequate pegging was not in place.
8. So far as the existence of the risk of accident was concerned, the Judge found at paragraph 54 of his judgment that the makers of the goal recognised the risk of instability if the supports were not properly pegged down. Such risk would appear to have been obvious. At any rate, there was before the Judge manufacturer's literature relating to the type of goal in use in this case. It provided, as quoted by the Judge at paragraph 42 of his judgment:

"Important. All freestanding goals must be anchored"

And:

"A range of anchors for use with portable, freestanding and five-a-side goal posts … provide extra safety during unsupervised play by reducing the risk of misused goals toppling over."

9. The brochure illustrated a variety of pegs for anchoring the tubular side and back members of the goals, including pegs in heavy duty U-style, in relation to which the Judge stated that there was evidence that comparable devices had in fact been used.
10. The manufacturer's Assembly Safety and Maintenance Instructions included the instruction "Before use … check that all fittings are secure". It also provided under a heading "Safety" that:

"Freestanding goals must be anchored at all times … Where anchors are being used a risk assessment of suitability must be carried out. With grass type anchors poor conditions play an important part, as they may not hold adequately in certain ground conditions, therefore this type of fixing should only be used when quantitative evidence exists of their effectiveness under the worst predictable ground conditions".

11. As to the awareness of the defendants in relation to the risk, it does not appear to have been in issue that they knew of the need to supply and maintain pegs along the tubular sides in order to make the goal stable in accordance with the recommendations of the manufacturer.
12. In fact the defendants called no evidence from their directors or staff as to their system for pegging the goal posts, their knowledge or assessment of the risk of accident, or the frequency of their inspections. However, there was tendered in evidence a general risk assessment dated six months earlier relating to the children's play area generally. The description of the hazardous activity under assessment was headed "Children using the play equipment". It did not refer to use of equipment by adults who might be playing with children, but nothing seems to have turned on that. Under the heading "Measures that can be taken to avoid or reduce the risk, preventive and protective measures …", three relevant injunctions appear:

"1. Equipment specific risk assessment to be carried out and the maker's safety information to be incorporated in to the preventive and protective measures …

6. Performance of the play area to be monitored from time to time by staff to ensure it can be used safely.

7. Norwich Union – daily inspections of play area."

13. No specific reference to the installation or use of portable goal posts or the necessity, type or method of pegging required was made in the assessment and a proviso recorded that "this is only a proposed risk assessment as we cannot know all the site specific hazards". However it appeared from the signature on the assessment that it was in fact Mr Harrison the park manager who made and signed the risk assessments for the children's play area. In fact, as later appears, it was not Mr Harrison who carried out the daily inspection of the children's play area and the Judge did not accept that such inspections were carried out.
14. At paragraph 45 of his judgment, the Judge observed that the evidence in the case suggested that "in the ordinary way, anchored as the defendant chose to anchor them [the goals] were safe in use"; the issue was "whether, on the occasion when this accident occurred, the Defendant's system [which at that stage in his judgment the Judge had not described] had broken down to such an extent that it is to be held liable for its unsafety".
15. The evidence which the Judge found suggested that in the ordinary way the goals were safe in use, was set out at paragraph 35 of his judgment as follows:

"[the pegging of the goal frames] ... is probably not a matter which Thomas really ever applied his mind to whilst he was playing football on this pitch from time to time; but the inference (and it seems to me it is a strong inference) to be drawn from his activity playing football on this pitch over a number of years very frequently, is because he has not observed the nets or the goals being displaced, that it probably did not occur. Yet, if they were being used, particularly by a large number of people, one would expect, it seems to me, if these goals were not pegged down in some way, not made stable in some way, that there would be some evidence not necessarily of accidents but of the goals having toppled over and having to be set up again which, would be a nuisance if one were playing football. There is no evidence of such incidents historically, certainly none known to the claimant and none revealed by the defendant, although it has revealed little. That suggests to me, strongly, that what occurred on this occasion should be regarded as a most unusual state of affairs. "

16. A director of the defendants (Dicken Knight) had responded to an enquiry after the accident from the Health and Safety Executive in a document the terms of which showed that the defendants were alive to the possibility that caravanners or their children might remove the pegs, and that this had happened on occasions in the past. The same report asserted that the defendants made it "part of our continual operation" to check the security of the pegs. However, the report did not deal with the detail of that continual operation and accepted that:-

"On this occasion when [the injured party] used the area the posts were not pegged, although some of the pegs were in the location."

The source of the assertion that some of the pegs were in the location was not clear.

17. The only evidence which the Defendants called came from an officer of the Health and Safety Executive, a Mr Blythe, who had come out to look at the scene some time after the accident in November. A transcript of his evidence is before us.
18. The gravamen of Mr Blythe's hearsay evidence as to the system of inspection, as recounted by the Defendants when he made his visit in response to a report of the accident, was that he questioned a number of people as to the system: Mr Knight (whom I have mentioned), Mr Holden (the Safety Officer) and Mr Shannon (the Assistant Manager) as a result of which three modes of inspection emerged so far as the "peg situation" was concerned.
19. Mr Shannon the assistant manager and supervisor of those who carried out the maintenance and upkeep of the park was responsible for putting in a weekly inspection sheet recording various safety checks in the boxes provided. There was in evidence a sheet signed by Mr Shannon for "week commencing 24 August" (the accident was on 26 August) which showed the boxes duly completed by the marking of "yes" or "no" answers to a series of printed questions. No box related as such to the state of the goal posts or pegs. All there was was a reference to "children's football area", which was recorded as safe. It appears that the record was written up as a weekly exercise by Mr Shannon though it is not clear whether he personally inspected the areas concerned. In cross- examination, Mr Blythe stated his view that a formal inspection once a week was insufficient and inadequate. However, he stated, and was closely questioned on, his understanding following his session with the defendants which was to the effect that 2 types of, or opportunity for, inspection were relied on by the defendants apart from any formal weekly inspection
20. The first was said to be by the employee who mowed the grass in the park which was done from a tractor. Mr Blythe spoke to that employee who said that he did not cut round the goal posts but gave them a good wide berth to avoid any pegs which might be lying around. The employee said that he was confident he could see from his tractor where the pegs were missing round the goal posts and, if they were, he would get down from his tractor and replace them. There was no evidence as to the interval at which such grass cutting took place, nor was it clear, given that the tractor driver avoided mowing close to the goal, to what extent the grass was in fact longer in the area of the posts than the rest of the grass, thus affecting the degree to which the pegs would be clearly detectable.
21. The second form of opportunity for inspection relied on as founding the assertion that daily inspections took place were said to be inspections by staff who either drove or walked past the area where the goal posts were situated.
22. Mr Blythe volunteered in evidence the opinion (as indeed appeared from the risk assessment) that a daily inspection of the pegs was necessary, and that he had been given to understand that the defendants made daily inspections. The Judge, however, rejected the defendants' assertion that they made daily inspections. He stated at paragraph 40 of his judgment:

"The defendant … asserts through Mr Blythe on the basis of what he was told rather than through any witness that [the Defendant] has called from it own staff – that daily inspections were being made. Mr Blythe appears to have been persuaded by the evidence that there really were worthwhile daily checks. But, if one examines the evidence that he had for it, it seems to me to be exceptionally thin and what it amounts to is that there may have been casual checks by people who were doing other things – whether by simply walking along a nearby road … or when they were crossing the field, when they were mowing around the goal, whether with a tractor or with a strimmer. I do not know how often the grass was mown – in summer, no doubt, it was mown more often than in the autumn and in the spring – so that does not really help. But the evidence that this goal was checked for safety on a daily basis I find unconvincing. It may have convinced Mr Blythe but I am not satisfied that it is more likely than not that this goal was checked on a daily basis."

23. That said, however, the Judge implicitly rejected Mr Blythe's opinion and the requirement of the risk assessment that a daily inspection was necessary. He stated at paragraph 41 of his judgment:

"How often should it be checked? Clearly, Mr Blythe, with his responsibilities as Environmental Health Officer, took the view that a weekly check was inadequate; but he was satisfied on the basis of his investigation, that there was a daily check of some sort; and that did satisfy him, hence his conclusion. I do not apply the same test that he does. In fact, it is not entirely clear what test he was applying."

At the same time the Judge did not himself make clear what intervals would have been proper or whether he considered inspections at such intervals in fact took place. The form of his notably non-specific findings in that respect appears at paragraphs 56, 58 and 64 of the judgment.

"56. The position here, it seems to me, is that such evidence as there is – and I accept that it is not comprehensive – tends to show that the Defendant had taken some care over its selection and installation of this equipment. Otherwise the conclusion … drawn by Mrs Hall about the way in which these items had performed in the past could not reasonably have been drawn."

I pause to state in parenthesis that Mrs Hall had written a letter of complaint on 27 August 2003 in which she had stated:

"When the goalposts are securely fixed with the net pegs this does not happen. I believe that people take the pegs out for tent awnings?"

24. I continue with the quotation from the judgment:

"I return to the point that, as it seems to me, stands out from the evidence in this case very strongly and that is that this should be regarded as a disastrous but nonetheless isolated incident. There is nothing to suggest, on any previous occasion, either on that day or previous days during the stay or in the fortnight before, that Thomas or his friends had ever found that the goals were, from their point of view, not adequately secured. It seems to me that the conclusion to draw from that is that the Defendant should be found to have taken routine steps to see that these goals were safe in use for which they were intended and, to a certain extent, misuse because it seems to me quite likely that such equipment is, on occasions, misused, particularly by unsupervised children.

58. It seems to me, if it gave thought to the question that the defendant would be asking himself what he had to do, in relation to the installation and use of these goals and the maintenance of them, to see that children were reasonably safe in their use. That is why I mention the question of misuse, because it seems to me an occupier of premises in circumstances such as this must have in mind, that although the equipment is provided for use as a football goal, that they may, in fact, be used for other purposes; that they may be swung upon by children who are not playing football and who happen to see them as an interesting piece of equipment; that people might chase round them and crash into them. One only has to consider what children do (of all ages) when they are playing but not playing football. What there is in this case is a complete absence of evidence that, whether for the purpose for which they are intended or misused, that these goals were not routinely sufficiently secured so as to make them safe …(emphasis added)

64. … it seems to me, on the admittedly incomplete evidence which I have, that the proper inference to draw here is that the situation actually pertaining at the time when this accident occurred probably had not existed for very long. Whether it existed for more than 24 hours, of course, I am quite unable to say. It is wholly unlikely that it had persisted for a week on the basis of the single document that I have seen. Whether a daily inspection is required in the circumstances must depend on the degree of interference being suffered by the Defendant. There is no evidence here to suggest that the circumstances were that as soon as the situation was remedied or as soon as these goals were put out at the beginning of the season (if that is what occurred) that the pegging started to disappear either permanently or temporarily. Indeed, as I have said more than once now, it seems to me overwhelmingly likely that for overwhelmingly most of the time these goals were at least adequately secured by the pegs which were provided."

25. Having thus decided on the basis set out that the situation had not existed for very long, (whether or not more than 24 hours, less than a week), the Judge went on to consider to whether, on the balance of probabilities, negligence had been established in the following terms:

"65. It seems to me in the circumstances, therefore, that it would be wrong – and I do not do it – to condemn the Defendants as having failed to use reasonable care to see that the Claimant was reasonably safe. It is clear that he was not reasonably safe at the time that this accident occurred. I concentrate on whether reasonable care had been taken. In my judgment, there had been: in the provision of appropriate equipment; the provision of what appears in practice to be appropriate stabilising items and at least some effort made to deal with the question of interference. That is plain from Mr Knight's reply in the report form. There was a recognition of a problem and there were countermeasures. On this occasion they proved to be insufficient; but for the reasons which I have given, I dismiss the claim." (emphasis added)

26. In sum, therefore, the Judge held that the defendants did take "some care" to ensure the equipment was safe without making any clear findings or having any first-hand evidence as to the extent of that care. Furthermore, he rejected the risk assessment of Mr Harrison, the defendants own responsible manager. He also (for reasons which are not apparent) rejected the assessment of Mr Blythe, the safety inspector, that a daily inspection was necessary, without considering or formulating more precisely what was required or the implications of the judge's own criticisms of the defendants' asserted system of inspection. He avoided the necessity to do so by finding that the accident was a disastrous but isolated (i.e. highly unusual) incident (see paragraph 24 above) in relation to which there was no evidence to show that the pegs had not been only very recently removed. In this respect he simply found that the goal had been unstable for 'not very long', and on that basis, it had not been proved by the claimant that the defendants' system (whatever it was) was inadequate in failing to detect and correct the absence of pegging. Accordingly, he found for the defendants.
27. In attacking the Judge's finding that the claimant had not proved the fault or at any rate operative fault in respect of his accident, Mr Cooper for the claimant first of all takes the point that the Judge wrongly placed the burden of proving that the respondent's system of inspection and replacement of the pegs was inadequate on the claimant, when, on the facts of the case, the evidential burden of proof of the adequacy of the system had swung to the defendants. It is Mr Cooper's submission that the facts of the accident are comparable to those in Ward v Tesco Stores Ltd [1976] 1 All ER 219, frequently relied upon in cases of this kind, but unfortunately not cited to the Judge in the course of submissions.
28. In that case the plaintiff had slipped on some yoghurt which had been spilt on the floor of the defendants store and was injured. At the trial the defendants gave evidence of frequent inspection and sweeping of the supermarket floor with instructions to the staff to clear up spillages wherever they were noticed, but they did not adduce any evidence as to when the store had last been brushed before the plaintiff's accident. There was no evidence before the Court as to whether the floor had been brushed a few moments before the accident or as long as an hour or an hour and a half earlier so that the Court was left without information on what was an important matter. In those circumstances the trial judge considered that prima facie the accident would not have happened, had the defendants taken reasonable care and the Court of Appeal held that he was justified in taking the view on the probabilities that the spillage had been on the floor long enough to have been cleaned up by a member of the staff.
29. In the context of that case, Megaw LJ observed at 224a-g:

"It is for the plaintiff to show that there has occurred an event which is unusual and which, in the absence of explanation is more consistent with fault on the part of the defendants than the absence of fault; and to my mind the learned judge was wholly right in taking that view of the presence of this slippery liquid on the floor of the supermarket in the circumstances of this case; that is that the defendants knew or should have known that it was a not uncommon occurrence; and that if it should happen, and should not be properly attended to, it created a serious risk that customers would fall and injure themselves. When the plaintiff has established that, the defendants can still escape from liability. They could escape from liability if they could show that the accident must have happened, or even on the balance of probability would have been likely to have happened, irrespective of the existence of a proper and adequate system. In relation to the circumstances, to provide for the safety of customers. But if the defendant wished to put forward such a case, it is for them to show that, on the balance of probability, either by evidence or by inference from the evidence that is given or is not given, this accident would have been at least equally likely to have happened despite a proper system designed to give reasonable protection to customers. That, in this case, they wholly failed to do. Really the essence of counsel for the defendant in any possible argument – and he did not shrink from it – was: "never mind whether we had no system at all; still, as the plaintiffs failed to show that the yoghurt was spilt within a few seconds before the accident, she must fail. As I have said, in the circumstances of this case, I do not think that the plaintiff, to succeed, had to prove how long it was since the defendants' floor had become slippery. ..…

As regards the decision of Devlin J in Richards v WF White & Co, to which Lawton LJ and Ormerod LJ have referred, I agree with Lawton LJ that that case has to be looked at in relation to its very special facts. When the learned judge said 'but to make out a prima facie case of negligence in a case of this sort, there must, I think, be some evidence to show how long the oil had been there', I am confident that he did not intend to lay down any general principle. It is, to my mind, not a part of the law, as I have said, that in this case the plaintiff has failed merely because she is unable to disprove that the yoghurt fell on the floor within a few seconds of the time that she trod on it.' "

30. Mr Cooper submits by way of analogy on this case that, once the claimant had proved (as the Judge held) that the accident occurred because of want of safety at the time of the accident (i.e. because of the removal of the pegs), which was a not uncommon occurrence and created a risk of injury through use or abuse against which the defendants were obliged to guard, the onus was on the defendants to show that the accident did not arise from any want of care on their part. This they failed to do by failing to show that they had any or any effective system of inspection, let alone one which, if properly effective, would not have prevented the accident.
31. It should be noted in relation to Ward v Tesco that, while the observations of Megaw LJ were made in general terms and are frequently relied on in cases involving slipping or other accidents in circumstances where a temporary lapse in the safety of particular premises has occurred, they were uttered in the context of a case where the Judge had inferred (in the absence of any direct evidence) that on the balance of probabilities the spillage had been on the floor long enough for it to have been cleaned up by a member of staff: see per Lawton LJ at 222e.
32. Lawton LJ, with whose judgment and reasoning Megaw LJ agreed, stated at 222a-c that the case was no more than an application of the principle enunciated in the classical judgment of Erle CJ in Scott v The London and St Katherine Docks Co (1865) 3 H&C 596-601:

"But where the thing is shown to be under the management of the defendant or his servants, and the accident as such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants that the accident arose from want of care"

The Judge (in Ward v Tesco) having found that to be the position, the Court of Appeal rejected the defendant's submission that it was incumbent upon the plaintiff to show that the yoghurt had not fallen on the floor only a short time before she trod on it.

33. The judgments in Ward v Tesco do not of course relieve the claimant of the overall burden of proof. He must show that the occurrence of the accident is prima facie evidence of a lack of care on the part of the defendant in failing to provide or implement a system designed to protect the claimant from risk of accident or injury. In such circumstances, as made clear by Lawton LJ at 222d-e:

"Such burden of proof as there is on defendants … is evidential, not probative. The trial Judge thought that prima facie this accident would not have happened had the defendants taken reasonable care. In my judgment he was justified in taking that view because the probabilities were that the spillage had been on the floor long enough for it to have been cleaned up by a member of the staff."

34. In this respect it is again to be noted that in Ward v Tesco, the Court was concerned with a defendants' appeal against an inference which had been drawn by the Judge in accordance with the principle enunciated by Erle CJ, whereas this is a claimant's appeal complaining of a failure by the Judge to draw such an inference and thus that the claimant had failed to satisfy the overall burden of proof. The reality of this appeal is that we are obliged to examine his judgment and decide whether it is clear that the Judge erred in that respect.
35. In my view, it is clear that he did so, and that having found (i) that the accident was caused by a want of safety (the absence of pegging) at the time (see paragraph 6 above). (ii) that this was a known risk (see paras. 8 and 10-12 above) against which counter measures by way of regular inspection and appraisal were called for (see paras. 12 and 16 above), and (iii) that the defendants had accepted (and rightly accepted) a duty of regular inspection during the day to check that the pegs were in place, but had failed to prove that the system was in operation at the time (see paras. 16-22 above), he should have gone on to find that (iv) there was no basis for holding that the accident would have been likely to have happened irrespective of the existence of a proper and adequate system.
36. In so stating, I adopt the approach of Megaw LJ in Ward v Tesco, while bearing in mind the distinction to which I have referred in paragraph 34 above.
37. In the ultimate analysis, the reason for the Judge's finding that the claim had failed was not that care had been taken in setting up or effecting a proper system of inspection (quite the contrary) but simply that the claimant had not proved the situation prevailing at the time of the accident had existed for "very long" (whether more or less than 24 hours) which, in this context, meant a sufficient time to be detected and rectified by the defendant operating an efficient system of inspection (as to the nature of which the Judge made no finding).
38. In my view, the conclusion drawn by the Judge that the defendants "should be found to have taken routine steps to see that the goals were safe in use … and, to a certain extent, misuse" (see para. 56 of the judgment quoted at para. 24 above) was unsupported by the facts as he found them. Nor was he justified in drawing the inference which he appears to have drawn as to the effectiveness of the measures taken by the defendants, by reason simply of the absence of evidence of other accidents of the kind which occurred.
39. His conclusion that the defendant should have been found to have taken routine steps to see that the goals were safe in use was first that there was nothing to suggest, on any previous occasion during the day or the previous days during their stay, that Thomas or his friends had found that the goals were from their point of view not adequately secured. Their failure to notice or complain about the absence of pegs does not appear to me to justify the inference that routine steps were taken to see that the goals were safe, but simply suggests that no tipping accident had previously occurred during the kick-arounds which had taken place. There was in fact no reason to suppose that from the boys' point of view the goalposts were other than doing their job until the highly unusual circumstances of the accident. Nor, given what the Judge found to be a highly unusual occurrence, did the absence of previous serious accidents indicate that the pegs were regularly in place. It was the defendant's own case that the pegs were on occasions removed. The very point of the pegging was to prevent instability arising from misuse or unusual occurrence. The Judge's wider comment (at para. 35 of his judgment) that there was a general absence of evidence that the goals were not routinely sufficiently secured, similarly depended upon the absence of any evidence of previous complaint to the defendants. Such complaint would only be likely to be made if actual injury occurred, as opposed merely to instability manifesting itself at some time in the course of the play, but in relation to which children would be unlikely to complain. This passage of the Judge's reasoning seems to me to merit the observation that absence of evidence of an occurrence is not the same as evidence of its absence, as to which no evidence was called by the defendants who were in a far better position than the claimant to provide the information.
40. In any event, the Judge was in error when he said that there was a complete absence of evidence that the goals were not routinely sufficiently secured as to make them safe. On the one occasion when, somewhat later, an inspection occurred in relation to the accident it was apparent that the manufacturers' recommendation and requirement that the frame should be securely pegged was not in operation and that there were simply some pegs placed along the netting at the back which permitted the goalposts to tip forward to the extent of the "play" in the netting. There was no reason to infer from that that the defendants routinely inspected to see that the manufacturer's safety requirements, which called for pegging of the frames and not the net, were in place.
41. In my view, the Judge should have approached the case upon the broad basis that assuming the pegs had at some time earlier been properly in place along the frame, in accordance with the manufacturers directions, (as to which there was no direct evidence), but that they had been removed by campers for their own purposes, the probabilities were that the situation had existed at least throughout the day and that, if the daily system of inspection to ensure the pegs were in place (which the safety inspector regarded as necessary and the defendants purported to carry out), had actually been carried out, then the absence of pegging would have been detected and the pegs replaced .
42. In this connection, I would only add that, in my view, the Judge was in error to ignore the effect of the only evidence which came from the defendants via Mr Blythe, who was called by them to speak to their state of knowledge and the adequacy of their system of inspection and considered a system of daily inspection to be necessary. Having criticised Mr Blythe for not being clear what test he was applying, the Judge fell into the self-same error for which he had criticised him.
43. I would allow the appeal and give judgment for the claimant for damages in the agreed sum of £41,500.

Lady Justice Arden:

44. I agree with this judgment

Lord Justice Hughes:

45. I also agree with this judgment