The first part of the decision of Mr Justice Jay in Powell -v- Watford Borough Council [2017] 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.


“26. In her extremely detailed and diligent extempore judgment, which I will now turn to analyse, HHJ Melissa Clarke addressed the issues in a systematic and sensitive Let me try and summarise the judgment in this manner without being needlessly prolix. The accident happened when Alfie was twelve. He now of course is either 17 or 18. We are concerned with a recreational area as to which the judge had far better photographs than those which are available to me as copies in the bundle. It is called the Leavesden Green Recreation Park. That area is in reasonably close proximity to a shelter, a bench and rubbish bin. One can picture the scene.  It is a sort of scene with which this court is well familiar in the area within and just outside the metropolis.   We are concerned here with Watford.
27. What happened is that Alfie dived to  grab a football or tried to collect   It had just moved away from the immediate area of the makeshift pitch.  He put his hand on the ground  close to the shelter near one of the bins, or perhaps it was the only bin, and unfortunately cut his hand against a shard of broken glass. There  was evidence from the claimant’s mother and from the claimant, and the judge did not dispute their honesty as witnesses.  The claimant’s mother had taken photographs of the area the following day, which was the Saturday, since 13 April 2012 is a Friday. There were photographs taken by the claimant’s solicitor somewhat later. The defence called one live witness, who was Mr Mark Davenport, who was working as a parks operative at a reasonably junior level with respect to him, employed by Watford at one stage and by Veolia at a later stage.  He  was described apparently as a leading  hand.  The evidence from Mr Davenport (and it seems clear that he was an impressive witness) went to the system which was in place. According to the judge (and this is where she is summarising the position at paragraph 36 of her judgment), the system was as follows (this relates to the collection of litter and the removal of hazards such as broken glass). There was a system of weekly inspections which attended the clearing of the bins, and during such inspections operatives were expected to remove rubbish which was in the area including broken glass. There were ad hoc visits by park rangers and also out-of-hours cover, which is dealt with in a witness statement of Mr Howard. The park’s north area  team, of which Mr Davenport was part, could  return to  the area  in the event of complaints. In the summer months and in school holidays there were frequent complaints, and he  sometimes returned up  to three times a day to remove glass.  During the summer months too employees came to cut the grass, and they were required to keep an eye open for shards of broken glass and report what they had found.
28. The conclusion of HHJ Melissa Clarke was that this was a reasonable and proper system and was vouched by the oral evidence of Mr Davenport. The judge clearly understood that there was a striking absence of written evidence, and she refers to that at some length at paragraphs 31 to 34 of her judgment, but she does say that the evidence of Mr Davenport was There was  no evidence from Mr Davenport’s colleague, a man called Brendan,  since  he  no longer worked for the local authority or Veo lia, and I can see why the judge did not draw an adverse  inference  in relation to  that failure.  There  was a written witness statement, which went in under the Civil Evidence Act because the  man was apparently unwell, from Mr Ben Howard of Veolia Environmental Services, and he gave corroborative evidence really in relation to the system.  So the judge’s first finding was that this was a proper system.
29. Her second finding was that it was properly implemented on the The basis of that finding was that she concluded on the available evidence (and indeed there was documentary evidence to support this) that Mr Davenport and his colleague Brendan attended the park on the morning of Friday, 13 April.   The plan was that they should empty the bin and do their inspections the previous day, but for some reason that did not happen. But that is not a point which avails anybody really apart from the defendant.  This accident happened  later that afternoon. I am not sure that the precise time has been given, but it matters not.  There  was evidence from photographs (the ones I have mentioned, taken by Alfie’s mother the morning of the Saturday, or certainly on the Saturday) which showed a considerable amount of broken glass and detritus in the area of the bin. However, the judge concluded on all the evidence that it was more probable than not that this glass and detritus had arisen between the bin collection on the Friday morning and the time the photographs were taken and by implication, therefore, that any relevant glass which was there in the instant before the accident occurred on the Friday afternoon had been placed there by whatever means after Mr Davenport and Brendan had done their job properly that morning.   That was the judge’s conclusion having regard to all the evidence.
Speaking entirely personally, that conclusion as to implementation of the system was slightly generous to the defendant, but quite rightly no ground of appeal has been advanced in relation to it. This is because ultimately that is a question of fact, and it could not be said that the judge has reached a perverse conclusion.
30. The real point which was advanced before me today by Mr Exall (although he did advance other points) relates to the failure to  undertake proper risk assessments.   The  issue of risk assessments or the lack of them had been clearly and squarely pleaded in the amended Particulars of Claim, paragraphs 5(e) and (f).  There  was no application to amend the defence.  Mr Exall’s argument proceeded along the following path: that an adverse inference should have been drawn from the failure to call any live witnesses relating to risk assessments and failing to disclose any relevant documents relating to risk assessments. The burden here had shifted from the claimant to the defendant because the claimant had discharged it, or at least the evidential burden; see Ward v Tesco Stores [1976] 1 WLR 810. That much was not in dispute. Mr Exall’s submission was that it was not for the claimant to speculate exactly what risk assessment should have been carried out and what appropriate action should or might have been taken pursuant to such assessments. He mentioned generally without prejudice to that case that there could have been more detailed written policies.  More proactive steps could  have been undertaken. Remedial action in relation to what was known to be a quite significant problem, certainly at certain times of year could have been taken. Moreover, Mr Exall submitted that the burden moved to the defence in relation to causation.
31. Ms Allen’s submission was that risk assessments were not a significant issue at trial; that the way the case really went off before the judge was on the two principal issues, namely: first, was there a proper system generally, and secondly, was that system implemented? It was not put to the judge that the absence of a risk assessment was or was not
32. In my judgment the issue of risk assessments was before the court, not merely in the amended pleadings but also in the claimant’s skeleton argument. The extent to which it was addressed by Ms Allen is not altogether clear.
33. I do not consider that the absence of an amended defence is critical to the correct analysis. The real point here though concerns that of  causation.  This is because in my judgment it is plain that the lower court should have been proceeding on the basis that no risk assessments were carried out. There was no evidence that any risk assessments were carried out. It is not a question therefore of drawing adverse inferences. There was simply an absence of evidence. Furthermore, I think it is fair to say on a proper reading of paragraphs 31 to 34 of the judgment that the judge was well aware that no risk assessments were carried out.
34. The real question therefore is: to what extent was that or might that have been causative? I raised in argument the possibility that the  highest really the case could even arguably be put was that there should be inspections by these operatives at certain times of year once a day rather than once a week. On the chronology, the position would be rather different if a six-day gap had elapsed between the inspection and the acc ident, but on the facts of this case, we know that the accident took place on the very day of the In my judgment it is simply not tenable to say that there should be inspections on a systematic basis twice a day.  That would place to  high an obligation. Even so, these are really my — I will not say speculative – musings; they are my opinions and inferences based on my own assessment of the facts. It is not the way the case was run below by the defendant. Instead, in the defence, we have a general non-admission in relation to causation; see paragraph 6. We do not have a specific positive case pleaded in relation to causation, and even if a risk assessment had been carried out, it would have made no difference.
35. Even though I personally think that that case might have been quite strong on causation, I cannot conclude that it was so irresistibly strong that I must find for the defendant, or rather the respondent to this appeal on that basis. Instead, we have, I reiterate, a failure to carry out a risk assessment, which the judge could clearly have stated but did not.    Causation would ordinarily flow from that unless a positive case was put up, and it was not. And on that narrow basis in my judgment I consider that the appellant’s appeal has been made out in relation to  the  failure  to carry out a risk assessment.
36. Other points were made by the In my judgment they have no force. It is quite true that the defence pleaded, “[a]t no time prior to  the claimant’s alleged accident did the defendant receive any reports of glass in the area where the alleged accident occurred”. That pleading in fact was immediately contradicted by the witness statements which were served back in 2015. I do not think  that the case proceeded on the basis of the pleadings, as I am sure the judge noted. It proceeded on the basis of the witness evidence. Strictly speaking, an application should  have been made to amend the defence, but in my  view nothing really turns on that.
37. Next, the point is made that the judge failed to consider whether the policy in place was sufficient to meet the nature of the risks she found. Well, subject to Mr Exall’s point about risk assessments, on which he succeeded, the judge’s findings and conclusions are in my judgment unimpeachable. She has  found in terms that this was a proper system on the basis of the evidence she heard. True it is that it came from someone rather low down the metaphorical food chain, but I can see no reason why the judge was not entitled to base her conclusions on that, subject, I reiterate, to the question of risk assessment.
38. Then the final ground in my judgment adds nothing to the main ground.
39. So I uphold the claimant’s appeals really on both notices of appeal. As for the procedural appeal against the order of HHJ Harris of 18 October 2016, my conclusion is that the defence should have remained struck out and judgment should have remained entered to the claimant. As for the substantive appeal, my conclusion is that the order of HHJ Melissa Clarke should be overturned on an admittedly quite narrow point, namely the way the judge dealt with the issue of risk assessments in the circumstances of the case.”