Business owners beware! Take reasonable steps or risk a personal injury claim.

This article discusses a recent case whereby the court found that as the Defendant’s employee had failed to report an issue with a passenger lift, they had not acted reasonably. Therefore, the Defendant had been in breach of s2 of the Occupiers Liability Act 1957.

The Background

The Claimant had been staying at one of the Defendant’s hotels. During her stay she used one of the lifts provided for customers. Whilst attempting to enter the lift, the Claimant alleged that the lift door shut unexpectedly, hitting her wrist causing her to sustain physical and psychological injuries. During the incident the Claimant’s bracelet broke. After the incident, the Claimant, her partner and an independent witness sought the assistance of the Duty Manager. Whilst providing ice and a drink, the Duty Manager informed the witness that there had been some prior issue with the lift. The Duty Manager completed an incident report form in which he recorded that he had checked the lift and found pieces of the broken bracelet. The Duty Manager tested the lift and provided evidence that as the lift correctly retracted when the sensors were broken, he did not feel like it was necessary to report that the lift had malfunctioned.

The Claim

The Claimant brought a claim against the Defendant on the basis that they had breached Section 2 (2) of the Occupiers Liability Act (“OLA”) 1957:

‘the common duty of care is a duty 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’

and/or had breached their common duty of care to the Claimant. In particular that the Defendant had breached their duty as they (1) had allowed the Claimant to use a lift that was defective, (2) had failed to properly maintain or service the lift, (3) failed to provide to the Claimant adequate warning regarding the lift and (4) had failed to provide signage to warn of the danger of using the lift.

The Defence

The Defendant put the Claimant to strict proof regarding the accident. The Defendant highlighted the multiple times that the lift had been used before and/or after to show that the lift had been fully working. The Defendant gave full disclosure of all their call out records, maintenance and service reports relating to the lift. These reports demonstrated that the lift had been serviced/maintained both pre and post-accident. There had been no reported issues with the lift which would show that the lift was not faulty.

The Judgment

Having heard the evidence of the witnesses and read the expert evidence of a GP, orthopaedic consultant and psychologist, the District Judge concluded that there was an impact which caused the Claimant injury and her bracelet to break which was consistent with the evidence of the Claimant and the independent witness. Secondly, the lift door shut suddenly and hit the Claimant’s right wrist causing injury and causing the bracelet to break but it did not trap the wrist.

Finally, the District Judge accepted the evidence relied on by the Claimant that there had been at least 1 incident in the preceding week which meant the lift door had malfunctioned. The District Judge found he could not believe that all 3 witnesses made up an assertion of a problem with the lift if something had not been said of this nature by the Duty Manager. The Defendant ought to have been aware that there was a problem with the lift that warranted a call to his engineers or maintenance team to inspect the lift subsequent to the inspection that had taken place a month prior to the accident. The District Judge found that had the Defendant called out their experts they could have identified any intermittent fault causing the lift door to shut suddenly.

The District Judge was satisfied that the Claimant had made out their case pursuant to Section 2 OLA 1957. The District Judge found that the Defendant had failed to take reasonable steps when it knew there was a problem to ensure that the Claimant was reasonably safe.

Conclusion

It is never enough in a case such as this to simply demonstrate that an accident has happened. A Claimant should be mindful of this before embarking on lengthy (and potentially costly) litigation. Within the current case it was not sufficient to show that the lift was defective the Claimant had to show some fault on the part of the Defendant. Despite there being no call out reports to show that the Duty Manager ever made a call to the maintenance company (and the records show members of staff, of equivalent status of the Duty Manager, made such calls) this did not establish that the Defendant had knowledge of any problems with the lift prior to the incident. Whether the Duty Manager reported the current incident is neither here nor there. In this case, the evidence of the Claimant, her partner and the independent witness that the Duty Manager had said there had been a previous issue with the lift was the definitive factor in concluding that there had been a breach of Section 2 (2) of the OLA 1957.