ABSENCE OF RISK ASSESSMENTS LEADS TO JUDGMENT FOR DEFENDANT BEING OVERTURNED: THE SECOND PART OF POWELL -v- WATFORD BOROUGH COUNCIL
The first part of the decision of Mr Justice Jay in Powell -v- Watford Borough Council  EWHC 2283 (QB)was considered in detail in the previous post. Mr Justice Jay held that a peremptory order had not been complied with and the defence was struck out. The case had gone to trial and the defendant been successful. Mr Justice Jay went on to consider whether the finding on liability was appropriate. The claimant’s appeal against the decision of the trial judge in favour of the defendant was also successful.
- In a case relating to an injury suffered as a result of glass on the ground in the defendant’s park the claimant had specifically pleaded a failure to carry out a proper risk assessment.
- The defendant did not specifically respond to that assertion in the defence. Nor did it plead that if a risk assessment had been carried out it would have made no difference.
- The trial judge found for the defendant at trial on the basis of a system explained by workmen responsible for the upkeep of the park.
- There was no evidence of any risk assessments.
- On appeal it was held that the failure to deal with the issue of risk assessments meant that the finding in favour of the defendant should be overturned.
- The claimant, then aged 12 was injured by broken glass when playing in the grass play area a park operated by the defendant.
- At one stage the defence was struck out because of a failure by the defendant to comply with a peremptory order.
- That striking out was set aside. At that hearing, when it was held that the trial on liability would proceed, the claimant obtained permission to amend the particulars of claim to plead, specifically, a failure on part of the defendant to properly assess the risk.
- The defendant did not file an amended Defence.
- The matter proceeded to trial where the defendant was successful.
- Mr Justice Jay allowed the claimant’s appeal on the issue of the defendant’s failure to comply with the peremptory order.
- However he went on to consider the second part of the claimant’s appeal which related to the trial itself.