ON APPEAL FROM WIGAN COUNTY COURT
(HIS HONOUR JUDGE HODGE QC)
Strand, London, WC2A 2LL
B e f o r e :
DAME JANET SMITH
|- and -
WIGAN METROPOLITAN BOROUGH COUNCIL
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr David Calvert (instructed by Russell & Russell) appeared on behalf of the Respondent.
Crown Copyright ©
Dame Janet Smith:
"...a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor, in this case Mrs Maynard, would be reasonably safe in using the grassed area for the purposes for which she was permitted by the Council to be there."
"It is, on the face of it, surprising that someone in the position of Mrs Maynard should have seen fit to complain about an indentation in the grassed area of the kind shown on the photographs taken on 15th July 2010 by the trainee solicitor acting for the Claimants, Mr Clark, as depicted in pages 152 and 146 of the trial bundle where, in accordance with Mrs Maynard's oral evidence, I marked the area of indentation of which complaint was being made. I do find it a little difficult, at first sight, to accept that she should have seen fit to complain about something of that kind. But, nevertheless, on the totality of the evidence, I accept her evidence that she did so complain. There is no evidence that the Council did anything in response to those complaints. I accept that the indentation would not have been apparent as a source of danger to the Council's grass cutting operatives assessing the situation for a different purposes. However, Mrs Maynard had drawn the matter to the Council's attention; and, on the totality of the evidence, the Council have done nothing about it."
"Compellingly though those submissions were presented to the court, I find that I cannot accept them. I have already indicated that Mrs Maynard struck me as a truthful witness, as, indeed, did her husband. I have already accepted that she had complained about the hole. I acknowledged that her perception of it as a potential source of danger is, no more than Ms Curran's view, not binding on the court. But the fact and reality of the matter is that I am satisfied that it was as a result of stepping into this hole that Mrs Maynard suffered her fall. That, to my mind, indicates, whatever the precise dimensions of the hole at the time of the accident, that it was a potential and, in the event, an actual source of danger. Had there been no complaints to the housing office, then it may well be that I would not have found that there was any breach of the occupiers' common duty of care under the 1957 Act. But I have already accepted that complaints were made; and, on the evidence, nothing was done in response to those complaints. As a result, Mrs Maynard suffered a fall. In those circumstances it seems to me that she has made out her case on liability."
Thereafter the judge dealt with contributory negligence, with which this court is not concerned.
Lord Justice Lloyd:
Order: Appeal dismissed