Après Lounge Ltd v Wade

Negligence – Occupier’s liability – Duty of care – Respondent injured after slipping on spilt drink in bar – Respondent claiming damages for personal injury against appellant owner alleging negligence and breach of duty under section 2(2) of Occupiers’ Liability Act 1957 – County court allowing claim – Appellant appealing – Whether judge erring in law – Appeal allowed The respondent visited the appellant’s bar, the Après Lounge, in Leicester city centre. The premises had two floors, each containing a bar. The ground floor was long and narrow and connected the street entrance with an outside garden area at the rear for use by customers.  The lower level bar ran along the right-hand side on entry from the street, and there was a shelf on the left hand opposite wall. The area between the bar and the wall was a narrow (about 2m) thoroughfare. As the respondent was getting ready to leave at about 12.30am, she slipped on some liquid (almost certainly a spilt drink) on the wooden floor of the downstairs indoor bar. She fell to the floor, twisting her ankle and foot, and was helped up by a customer. She left the bar and did not report the fall to the bar’s staff. She was in pain and visited hospital the following day and discovered that she had suffered a fractured metatarsal. The respondent brought a claim against the appellant in negligence and under the Occupiers’ Liability Act 1957. She claimed the appellant had failed to devise, institute and/or maintain any or any adequate regime for the inspection of the premises; had caused or permitted the floor to become wet; and failed to ensure the floor was kept dry and safe for visitors. The county court found for the respondent in her claim for personal injuries and awarded her £4,104.67 plus costs. The appellant appealed the decision on liability. Held: The appeal was allowed. (1) In an action for negligence the claimant had to allege, and had the burden of proving, that the accident was caused by negligence on the part of the defendants. That was the issue throughout the trial and, in giving judgment at the end of the trial, the judge had to decide whether the court was satisfied on a balance of probabilities that the accident was caused by the negligence the defendants; if it was not so satisfied, the claimant’s action failed. The formal burden of proof did not shift: Henderson v Henry E Jenkins & Sons [1970] AC 282 considered. The claimant had to show they slipped on something that ought not to have been on the ground, and an evidential burden then shifted to the defendants to show that they took all reasonable steps to see that the floor was kept reasonably safe as required by section 2(2) of the 1957 Act. The question of what amounted to such care, as in all the circumstances of the case was reasonable, depended upon assessing, as in the case of common law negligence, not only the likelihood that someone might be injured and the seriousness of the injury which might occur, but also the social value of the activity which gave rise to the risk and the cost of preventative measures. Those factors had to be balanced against each other: Tomlinson v Congleton Borough Council: [2003] PLSCS 203; [2004] 1 AC 46 considered. (2) The claimant had to show there had occurred an event which was unusual and which, without an explanation, was more consistent with fault on the part of the defendants than the absence of fault. Defendants could escape liability if they could showed that the accident must have happened, or even on the balance of probability would have been likely to have happened, even if there had been a proper and adequate system, in relation to the circumstances, to provide for the safety of customers: Turner v Arding & Hobbs Ltd [1949] 2 All ER 911, Ward v Tesco Stores Ltd [1976] 1 WLR 810, Dawkins v Carnival plc [2011] EWCA Civ 1237 and Hassan v Gill [2012] EWCA Civ 1291 considered. In the present case, the respondent slipped on a spilt drink. Hence, there was prima facie negligence because bars should not have spilt drinks on their floors. Also, causation was not seriously in issue as the respondent slipped because of the spilt drink. The principal issue was whether the appellant, by its evidence, could show on a balance of probabilities that it had taken such care as in all the circumstances of the case was reasonable to see that the respondent was reasonably safe on its premises, thus evidentially negating the appellant’s case on negligence: Laverton v Kiapasha [2002] EWCA Civ 1656 considered. (3) What was required both by the common law and by section 2 of the 1957 Act was the exercise of reasonable care. Overall, the appellant had operated a well-planned and properly executed system on the night of the accident which discharged its duty under section 2(2). It was not possible, and the law did not require, the occupier of premises to take measures which would absolutely prevent any accident from ever occurring. The judge was not required to conjure up a different inspection regime that he thought would theoretically have satisfied section 2(2), and then ask himself whether, on that basis, causation could still be proved on the basis it would have prevented the accident. Having regard to the realities of running a late-night bar, the system of floor inspections by the appellant was sufficient to fulfil its statutory duty under section 2(2).  Its inspection system was proactive. Although the bar was dark and the respondent could not have been expected to spot the specific danger which befell her, the evidence established that the appellant’s system had been one of continuous monitoring, with the result that every area was checked at least every 10 to 15 minutes. (4) The court was satisfied that the judge fell into error when he held that the appellant’s system of inspection of the floor had not been reasonable in all the circumstances to keep the respondent reasonably safe, as required by section 2(2) of the 1957 Act. The appellant was not in breach of its duty of care under section 2(2). The only conclusion the judge could properly have come to was that the appellant had satisfied its duty under section 2(2). The judge was wrong to find for the respondent. His judgment would be set aside and there would be judgment for the appellant. Jamie Hill (instructed by Kennedys Law LLP) appeared for the appellant; Simon Dawes (instructed by Easthams) appeared for the respondent. Eileen O’Grady, barrister Click here to read a transcript of Après Lounge Ltd v Wade