Expert Witness Journal Issue 68 August 2026 - Flipbook - Page 45
by alcohol. Those are facts of life for a hotelier and
form part of the context in which the safety of the
premises must be assessed.
A feature which was lawful when constructed may
nevertheless present an unacceptable risk many
years later, particularly where the use of the premises
has changed, the exposed population is di昀昀erent, or
a straightforward and inexpensive improvement is
available.
There was a clear parallel with compulsory military
accommodation. The claimant was not engaged in
an inherently dangerous recreational activity of the
kind considered in Tomlinson v Congleton Borough
Council. He was in the common area of the place in
which he was required to live.
The evidence supporting the 昀椀nding that the
balustrade was dangerous was formidable.
The balustrade was approximately 900 mm high,
around 200 mm below modern guidance for common
landings. Photographs ( see above taken from the
case report) demonstrated its height relative to the
claimant, who was tall but, as the Court noted, not
“freakishly tall”. The Army’s own witness accepted
that the risk shown by the photograph was obvious.
Alcohol and horseplay among young soldiers were
known features of life in the accommodation.
Army witnesses accepted that young soldiers
drinking in barracks, going out drinking and
engaging in frolic or play昀椀ghting were familiar
occurrences. One witness described such behaviour
as having existed for as long as the Army itself.
The King’s Regulations also recognised service
accommodation as personnel’s own space away
from working routines, while requiring the Army
to continue ful昀椀lling its obligations as a responsible
employer.
The post-accident risk assessment categorised the
likelihood of a fall as “common, regular or frequent
occurrence” and the potential severity as including
fatalities or major injury. The Ministry’s learning
account concluded that the balustrade had not
been high enough to prevent the fall. A subsequent
Authority Notice of Change recorded that low
balustrades across the retained estate posed a severe
risk of occupants falling over them.
This did not mean that the Ministry was required
to prevent every act of horseplay. It meant that the
foreseeable behaviour of those living in the building
formed part of the factual context in which the
adequacy of the guarding had to be assessed.
Old construction is not a complete
answer to present danger
The Court of Appeal accepted that the Building
Regulations were not retrospective. It did not treat
modern guidance as imposing a direct statutory
obligation to reconstruct every balustrade in an
older building.
Instead, it treated modern regulations and standards
as evidence of accumulated professional knowledge
and practical experience about sensible safety
precautions. The Building Regulations represented
the consensus of current professional opinion about
appropriate design and construction. Conversely,
compliance with standards applicable at the date
of construction did not mean that a building could
never subsequently be assessed as presenting an
unacceptable risk.
Frazer-Nash Consultancy
Frazer-Nash Consultants are able to work remotely by video conference or as required for
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Frazer-Nash Consultancy, formed in 1971, is a leading, independent consultancy with over
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sectors with special expertise in vehicle roll over.
Areas of expertise include
That is the correct analytical route. Historic
compliance is relevant, but it is not conclusive
forever. An employer or occupier must keep safety
under review by reference to:
1.
the present use of the building;
2.
the characteristics of its users;
3.
changes in professional knowledge;
4.
the likelihood and gravity of injury; and
5.
the availability and cost of precautions.
Vehicle rollover
Transport Accidents
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Vehicle stability
Structures
Dynamics
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Fluids
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Safety and Reliability Engineering
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Fork lift trucks and mobile cranes
Railway accidents
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Industrial Accidents and Disputes
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Safety standards assessment
Guards, fail-safe design
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Explosions and blast
Our senior staff can supply unbiased assessments for a range of technical problems – from brief
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and arbitration, including expert testimony in court.
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EXPERT WITNESS JOURNAL
43
AUGUST 2026
