Establishing causation in personal injury claims where there has been an inadequate system of inspection: Hall v Holker Estate Co Ltd [2008] EWCA Civ 1422

June 3, 2021

Chris Richards

When bringing a personal injury claim, you will almost always have to prove that the Defendant has done something wrong. However, this is not enough. You will have to also prove that the wrongdoing of the Defendant caused the injuries. Most of the time, this is straightforward. A driver crashes into another car and injures the other driver. There is no question that it is the accident which has caused the injuries. If the driver had not been negligent, the other driver would not have been injured.

Things get more complicated where there is a hazard which has developed spontaneously. There are many different examples. A customer in a supermarket might drop some yoghurt on the floor and forget to tell anyone. If someone comes across the spillage, they may fall and hurt themselves. The surface of a road might wear away over time to the point where it becomes dangerous.

The courts have recognised that the way to deal with hazards which develop spontaneously is to have regular inspections. The owner of a supermarket might send a cleaner around the supermarket once every hour to check for spillages. The highway authority which is looking after a particular highway may send inspectors out every so often to check the condition of the highway.

Sometimes, you will be able to prove that the system of inspection which was in place was inadequate. The inspections which were taking place may not have been happening frequently enough. The inspections may not have been thorough. The inspections may not have been taking place at all. For whatever reason, the system of inspection may be so inadequate that it constitutes a breach of duty.

However, the Defendant can then turn the tables on the Claimant. The Claimant has to prove that the breach of duty caused the accident. The Defendant can say – how do you know that an adequate system of inspection would have prevented the accident? Let’s think about that spilled yoghurt in the supermarket. You have no idea when the yogurt was spilled. How could you? You weren’t there to see it spilled. The yoghurt could have been spilled a few moments before the accident happened. You have no idea whether a proper system of inspection would have detected the spillage before the accident.

Does this mean that in any case where there has been a failure in a system of inspection the Claimant will not be able to establish causation? Not quite. The courts have recognised that Claimants may find it difficult (if not impossible) to prove that a reasonable system of inspection would have prevented an accident. They are not the ones who are in control of the place where the accident happened. They are not the ones who can comment on the frequency with which hazards arise. They are not the ones who can comment on the system of inspection in place. This is really something for the Defendant. One might think that it is the Defendant who would have the evidence to prove that a reasonable system of inspection would not have prevented the accident.

The Court of Appeal dealt with this issue in the case of Ward v Tesco Stores Ltd. [1976] 1 W.L.R. 810. The case involved a claimant who had slipped on the contents of a yoghurt pot which had spilled onto the floor of the supermarket. The supermarket knew that spillages were taking place. The supermarket also knew that spillages may pose a danger to customers. The Court of Appeal held that it was for the defendant to provide evidence to show that the claimant would have slipped on the yoghurt even had there been an adequate system of inspection in place. Megaw LJ held as follows:

“It is for the plaintiff to show that there has occurred an event which is unusual and which, in the absence of explanation is more consistent with fault on the part of the defendants than the absence of fault; and to my mind the learned judge was wholly right in taking that view of the presence of this slippery liquid on the floor of the supermarket in the circumstances of this case; that is that the defendants knew or should have known that it was a not uncommon occurrence; and that if it should happen, and should not be properly attended to, it created a serious risk that customers would fall and injure themselves. When the plaintiff has established that, the defendants can still escape from liability. They could escape from liability if they could show that the accident must have happened, or even on the balance of probability would have been likely to have happened, irrespective of the existence of a proper and adequate system. In relation to the circumstances, to provide for the safety of customers. But if the defendant wished to put forward such a case, it is for them to show that, on the balance of probability, either by evidence or by inference from the evidence that is given or is not given, this accident would have been at least equally likely to have happened despite a proper system designed to give reasonable protection to customers. That, in this case, they wholly failed to do. Really the essence of counsel for the defendant in any possible argument – and he did not shrink from it – was: “never mind whether we had no system at all; still, as the plaintiffs failed to show that the yoghurt was spilt within a few seconds before the accident, she must fail. As I have said, in the circumstances of this case, I do not think that the plaintiff, to succeed, had to prove how long it was since the defendants’ floor had become slippery.…

As regards the decision of Devlin J in Richards v WF White & Co, to which Lawton LJ and Ormerod LJ have referred, I agree with Lawton LJ that that case has to be looked at in relation to its very special facts. When the learned judge said ‘but to make out a prima faciecase of negligence in a case of this sort, there must, I think, be some evidence to show how long the oil had been there’, I am confident that he did not intend to lay down any general principle. It is, to my mind, not a part of the law, as I have said, that in this case the plaintiff has failed merely because she is unable to disprove that the yoghurt fell on the floor within a few seconds of the time that she trod on it.” [page 816]

This case involved a slipping accident. One obvious question is whether the principle in the case of Ward v Tesco Stores Ltd. should be restricted to slipping accidents or whether it has a broader application.

I dealt with an interesting case recently which involved a defective piece of gym equipment. The Claimant had been using the gym at his place of work. The Claimant’s employer had provided the gym equipment. The Claimant’s employer needed to make sure that the Claimant was reasonably safe when using the equipment. Unfortunately, a cable on the gym equipment had weakened over time. The cable eventually snapped. The end result was that a heavy bar ended up falling onto the Claimant’s head. The Claimant suffered a nasty head injury. We were able to prove that the safety inspections being carried out by the Defendant were totally inadequate. However, the Claimant was not in a position to say when the cable had started to fray. The Defendant argued that the Claimant could not prove that a reasonable system of inspection would have prevented the accident.

What could the Claimant do? The Claimant could attempt to rely upon the principle in the case of Ward v Tesco Stores Ltd. However, the Defendant would undoubtedly try to argue that the principle in the case was only relevant for slipping accidents. Was there anything which proved that the principle in the case of Ward v Tesco Stores Ltd was of broader application?

Happily, yes there was!

We referred the court to the decision of the Court of Appeal in the case of Hall v Holker Estate Co Ltd. [2008] EWCA Civ 1422. This case involved a claimant who was injured whilst playing football with his son. The goalpost had collapsed and struck the Claimant on the face. The reason for the goalpost collapsing was that pegs had been removed. The pegs had been removed by unknown third parties. The removal of pegs was a known risk. This was also something which could happen from time to time. The risks associated with the removal of pegs were such that a regular system of inspection was necessary. The defendant had failed to prove that a regular system of inspection was in place. The Court of Appeal agreed that the principle in the case of Ward v Tesco Stores Ltd. should apply. The Court of Appeal hence found that the evidential burden had passed to the defendant to show that the accident would have been likely to occur even with an adequate system in place. The defendant failed to do so and the claim was successful. Sir Mark Potter held as follows:

“In attacking the Judge’s finding that the claimant had not proved the fault or at any rate operative fault in respect of his accident, Mr Cooper for the claimant first of all takes the point that the Judge wrongly placed the burden of proving that the respondent’s system of inspection and replacement of the pegs was inadequate on the claimant, when, on the facts of the case, the evidential burden of proof of the adequacy of the system had swung to the defendantsIt is Mr Cooper’s submission that the facts of the accident are comparable to those in Ward v Tesco Stores Ltd [1976] 1 All ER 219, frequently relied upon in cases of this kind, but unfortunately not cited to the Judge in the course of submissions.” [paragraph 27]


“Mr Cooper submits by way of analogy on this case that, once the claimant had proved (as the Judge held) that the accident occurred because of want of safety at the time of the accident (i.e. because of the removal of the pegs), which was a not uncommon occurrence and created a risk of injury through use or abuse against which the defendants were obliged to guard, the onus was on the defendants to show that the accident did not arise from any want of care on their part. This they failed to do by failing to show that they had any or any effective system of inspection, let alone one which, if properly effective, would not have prevented the accident.” [paragraph 30] 


The judgments in Ward v Tesco do not of course relieve the claimant of the overall burden of proof. He must show that the occurrence of the accident is prima facie evidence of a lack of care on the part of the defendant in failing to provide or implement a system designed to protect the claimant from risk of accident or injury. In such circumstances, as made clear by Lawton LJ at 222d-e: “Such burden of proof as there is on defendants … is evidential, not probative. The trial Judge thought that prima facie this accident would not have happened had the defendants taken reasonable care. In my judgment he was justified in taking that view because the probabilities were that the spillage had been on the floor long enough for it to have been cleaned up by a member of the staff.” [paragraph 33]


“In my view, it is clear that he did so, and that having found (i) that the accident was caused by a want of safety (the absence of pegging) at the time (see paragraph 6 above). (ii) that this was a known risk (see paras. 8 and 10-12 above) against which counter measures by way of regular inspection and appraisal were called for (see paras. 12 and 16 above), and (iii) that the defendants had accepted (and rightly accepted) a duty of regular inspection during the day to check that the pegs were in place, but had failed to prove that the system was in operation at the time (see paras. 16-22 above), he should have gone on to find that (iv) there was no basis for holding that the accident would have been likely to have happened irrespective of the existence of a proper and adequate system.

In so stating, I adopt the approach of Megaw LJ in Ward v Tesco, while bearing in mind the distinction to which I have referred in paragraph 34 above.” [paragraphs 35 and 36]

This case is an important example of the principle in the case of Ward v Tesco Stores Ltd. being applied in a case which did not involve a slipping accident. With the help of this authority, we were able to argue that the Defendant was the one who should provide the evidence to show that a reasonable system of inspection would have prevented the accident. The Judge agreed that the Defendant had failed to do so and the claim was successful. This was an excellent result and the Claimant recovered over £14,000 in damages and costs.

N.B. This article is provided for information purposes only and does not constitute legal advice. Chris will be more than happy to advise with any specific queries.