Edinete Marshall v Westmoreland and Furness Council
There is no doubt that a high duty is expected when it comes to playground surfaces, but should compensation be paid in respect of a minor difference of level between playground surfaces? At a recent trial on behalf of Westmoreland and Furness Council and their insurers Maven, we took the judge to the playground to see for himself.
Circumstances
The claimant was a visitor at a playground with her husband and grandchildren when she walked past a swing set towards her grandson and tripped and fell due to a 'significant difference' in level on the ground. The claimant fell head first into the perimeter railings and sustained a laceration to her forehead, resulting in a scar.
The playground in question had been subject to an arson attack in 2021, meaning the wet pour surface surrounding the swing set had to be re-laid up to existing concrete. The defendant local authority subcontracted the relaying works to a reputable independent contractor.
Liability
The claimant brought a claim both in negligence and/or the Occupier's Liability Act 1957.
Liability was denied by the defendant. The matter went to trial before Barrow-in-Furness County Court on the 13 February 2026. The defendant submitted the issues came down to the following three points:
- Was the difference in height between the re-laid wet pour tarmac and the existing concrete dangerous?
- Did the difference in height cause the claimant's accident?
- Did the defendant act reasonably in entrusting the works to the independent contractor?
The defendant denied the difference in height was dangerous. The 'defect' in question was a gentle slope which chamfered downwards. There was no tripping or sharp edge. The defendant submitted it undertook weekly and quarterly inspections, none of which identified any tripping hazards. The playground was also inspected by RoSPA and the defendant's insurers. No tripping hazards were identified, and the surface was found to meet European Standards.
The claimant was put to proof regarding the mechanism of her fall. Her evidence suggested the point of her fall to where she eventually hit her head on the railings was C.8 meters. The defendant submitted it was inherently unlikely any alleged difference in height on one side of the play area could cause the claimant to have an accident on the other side of the playground.
The defendant submitted it acted reasonably in all the circumstances in entrusting the works to the subcontractor.
Trial/findings
The trial started somewhat unusually with a trip to the playground by the judge and both counsel. There is little doubt that the judge actually seeing the gentle slope in person had much more effect than any number of photos or videos seeking to capture the nature of it. On return to the court, the trial proceeded in more conventional fashion with the witnesses and submissions by both sides.
The judge found entirely in favour of the defendant on all counts:
- There was/is no danger. The 'defect' was a small incline which is there to be seen.
- The judge could not understand the mechanism of the accident and how the claimant could fall and lunge so far forward.
- The defendant acted reasonably in all the circumstances, and did act reasonably in entrusting the work to an independent contractor.
In conclusion, when defending unmeritorious trip claims with no post-accident repair, defendants should always consider suggesting a direct viewing of the accident locus by the judge as the most powerful way to get across the defence case.
For more information or advice, please contact our Public Sector Team.
