Picture this – you are walking home from work along a public footpath, happily listening to your audiobook or music when all of a sudden, your toe hits a rise in the pavement and the next thing you know you are flat on your back, surrounded by the faces of concerned strangers asking if you are OK. Unfortunately, you are not. Your arm has been fractured and it will require several surgeries to fix, resulting in months off work, lost income, medical bills, and severe pain and discomfort. You need to claim personal injury compensation, but who do you sue? Alternatively, what if you slipped on a wet shop floor of a franchise outfit and suffered extensive back injuries? Is the owner of the store liable, or should you bring a claim against the franchise company?

The crux of the “who do I sue” question comes down to establishing who owed you a duty of care. To succeed in a personal injury claim, you need to prove, on the balance of probabilities that:

a) The Defendant owed you a duty of care,
b) They breached that duty, and
c) This resulted in you suffering damage.

A duty of care can be owed via statute or common law. For example, an employer has a statutory duty under the Health and Safety at Work etc Act 1974 to “ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.” In the interests of brevity, when it comes to duty of care owed by statute, this article will focus on the Occupiers’ Liability Act 1957 (the Act).

What does the Occupiers’ Liability Act 1957 cover?

Section 2(2) of the Act provides that the duty of care owed by the occupier is to ‘take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there’.

‘Occupier’ is not defined in the legislation; however, it is settled law that an occupier is someone who exercises control over the premises, which includes buildings, sea vessels, vehicles, aircraft, and even parks. Most importantly for discovering who a claim can be brought against, an occupier does not have to reside at the premises. This means they could be a landlord, a company that owns the business where the accident happened, or a local authority.

The case of Lewis v Wandsworth London Borough Council [2020] EWHC 3205 (QB) illustrates the breadth of circumstances that may fall under the Act. The Claimant was hit in the eye with a cricket ball whilst walking through her local park. Although she lost her claim following an appeal where the High Court ruled that the Defendant, a local authority, was not under a duty to warn others using the park that a cricket game was taking place, all parties accepted that the Defendant owed a duty of care under section 2 of the Act.

It is possible for an occupier to discharge their duty of care by warning visitors of a particular hazard. This is why you regularly see ‘caution – wet floor’ signs in supermarkets and shops. An occupier may avoid liability for a slip, trip, or fall, if you, as a visitor, consent to the risk, for example, by entering a construction site which has a clear notice of the possible dangers present within.

Who owes a duty of care at common law?

The starting point for establishing a duty of care at common law (i.e., by the Courts as opposed to law which is held in legislation), is contained in what is probably the most famous case in English law – Donoghue v Stevenson [1932] AC 562. Lord Atkin, in his legendary delivery of the Court’s decision stated:

“The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question” [emphasis added].

The Courts have developed several tests over the past 90 years since the decision in Donoghue v Stevenson to establish who owes a duty of care. Most begin with the three-fold test in Caparo Industries v Dickman [1990] 1 All ER 568, in which the Court must ask:

• Was the damage which occurred foreseeable?
• Is there a sufficiently proximate relationship between the parties?
• Is it fair, just, and reasonable in all the circumstances to impose a duty of care?

Although there have been minor flirtations by the Supreme Court to retreat from the three-stage Caparo test, it still remains good law and the standard measure for establishing whether or not the Defendant owed the Claimant a duty of care.

Concluding comments

It is important to note that businesses and local authorities take out comprehensive public liability insurance to cover legal costs and compensation payments should a personal injury or damage to property claim be brought against them. Therefore, once you identify the Claimant, in most cases, it is their insurer that will be paying the compensation award should you win your case.

Establishing who owes a duty of care if you are injured due to a slip, trip, or fall can be a challenging task, and given that under the Limitation Act 1980, a claim must be brought within three years of the negligence occurring, it is vital that you instruct an experienced Solicitor as soon as possible. They will swiftly establish who was legally responsible for providing a duty of care and whether or not they breached their duty.

Our team has decades of combined experience in successfully advising and representing clients in personal injury cases caused by slips, trips, and falls. We are sympathetic and understanding and are here to help you every step of the way.

Call us on 01 625 667166 or email us today to discuss your claim.