OCCUPIER’S LIABILTY ACT 1957 – ANOTHER BLOW FOR CLAIMANTS … – MILL’S TEST REINFORCED

pi_catherine_duffy By Catherine Duffy

DEAN AND CHAPTER OF ROCHESTER CATHEDRAL and MR LEONARD DEBELL [EWCA]Civ 1094 – Lady Justice Hallett and Lord Justice Elias

Hearing date 25/10/16

LORD JUSTICE ELIAS

BACKGROUND

This was an appeal against a finding of negligence made by HHJ Coltart in Lewes County Court. The claimant was injured when walking within the precincts of Rochester Cathedral on 9th June 2010. He said that he had tripped and fallen over a small lump of concrete protruding from the base of a traffic bollard. The judge found for the claimant and awarded damages of £21,597.00 after a 20% reduction for contributory fault.

FACTS

The claimant and his wife were walking through the cathedral precincts. Mrs Debell was in front of her husband as they both attempted to go through a gap between a low wall with a coping stone on it and a bollard. Mr Debell tripped on something and fell, injuring his shoulder and bringing on a hernia.

The bollard was 1 of 2 bollards with a linked chain between them, designed to prevent traffic from entering the road. Pedestrians therefore had to enter via the relatively narrow gap between the bollard and wall which was about 2 feet wide.

The concrete was broken and fragmented and had partly been lifted out of the road surface. The largest piece was about 1 inch above the surface; it was still attached to the bollard and protruded into the gap by about 2 inches.

The Judge at first instance found that the Cathedral was liable for the injury:-

“I ask myself this question, did the state of the concrete give rise to the foreseeable risk of causing injury to a passer-by? In the particular circumstances of this case I find that this piece of concrete did give rise to a foreseeable risk of causing injury to somebody walking in the way that Mr Debell was. In order to negotiate this narrow gap, this piece of concrete , albeit only an inch high and perhaps protruding by no more than twice that amount, it was in this case foreseeable that somebody would trip on this particular piece of concrete, and so I find that liability has been established in this case.”

LAW

Section 1 of the Occupier’s Liability Act 1957 states that an occupier of premises owes a common law duty of care to all his visitors (except for some certain exceptions that don’t apply here).

In section 2 the common law duty of care is defined as follows:-

“The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.”

This duty includes an obligation on an occupier to remove dangers which have materialised, even though the occupier did not cause them; in this case the damage to the bollard had been caused by a visitor’s car.

When does inaction constitute a breach? There are a number of factors depending on the circumstances; however the overriding question is whether the visitor will be reasonably safe in using the premises.

The obligation on the occupier is to make the land reasonably safe for visitors, not to guarantee their safety. In order to impose liability there must be something over and above the risk of injury from minor defects. The law has to strike a balance between the nature and extent of the risk and the cost of eliminating it.

Lord Justice Elias referred to the Court of Appeal decision in the case of Mills v Barnsley Metropolitan Borough Council [1992] 1 P.I.Q.R P291.

Lord Justice Steyn:

“It is important that our tort law should not impose unreasonably high standards, otherwise scarce resources would be diverted from situations where maintenance and repair of the highways is more urgently needed, This branch of the law of tort ought to represent a sensible balance or compromise between private and public interest.”

Lord Justice Dillon agreed:

“The liability is not to ensure a bowling green which is entirely free from all irregularities or changes in level at all. The question is whether a reasonable person would regard it as presenting a real source of danger.”

Lord Justice Elias went onto say that the risk is reasonably foreseeable only where there is a real source of danger which a reasonable person would recognise as obliging the occupier to take remedial action. A visitor is reasonably safe notwithstanding that there may be some visible minor defects on the road which carry a foreseeable risk of causing an accident and injury.

GROUNDS OF APPEAL

Mr Walker QC, counsel for the Cathedral, put forward his principal argument that the judge misdirected himself as to the standard to be applied. The judge wrongly assumed that foreseeability of harm was enough without properly applying the concept. The judge did not refer to the need to strike a balance between the private right and the cost. Taking account of the size of the piece of concrete, the chances of someone walking so near to the bollard to risk tripping and the lack of any evidence that anyone had suffered this kind of accident either before or since, it was no more than a “fantastic possibility” that the accident would occur.

FINDINGS

Lord Justice Elias did not accept the submission that the risk of accident was a “fantastic possibility”; it was foreseeable in the same way that accidents resulting from other blemishes in the highway are foreseeable. Nor did Lord Justice Elias accept that the judge was obliged to address the balance between the claimant’s rights and the cost to the Cathedral of eliminating the risk.

Lord Justice Elias did however accept the submission that the judge did not apply the foreseeability test in the appropriate way. “There is no recognition … that not all foreseeable risks give rise to the duty to take remedial action. The judge had to apply the concept of reasonable foreseeability taking a practical and realistic approach to the kind of dangers which the Cathedral were obliged to remedy. Had he done that, I do not think that he could have reached the decision he did.”

“The question for the judge was whether the piece of concrete created a danger of a kind which the Cathedral authorities were required to address. Was its something more than everyday risk which pedestrians face from normal blemishes.”

Lord Justice Elias found that it was not open to the judge to find that the nature of the risk was such as to create “a real source of danger”. This was an extremely small piece of concrete which could not be said to pose a real danger to pedestrians and it would be very unlikely that a pedestrian would walk so close to the bollard, or that he would injure himself if he did. Accordingly, even if, contrary to Lord Justice Elias’s view, the judge did apply the right test, it was not open to the judge to conclude that the risk was “a real source of danger.”

The appeal was upheld.

NOTE

Counsel for the Cathedral also appealed on the following grounds:-

(i) The evidence did not support the conclusion that the accident was caused by the piece of concrete;

(ii) The Judge applied an inconsistent duty of care because he stated in the course of his judgement that whether the bollard was a potential danger required consideration of its location and dimensions;

(iii) The decision on contributory negligence ran counter to the judge’s findings on liability.

These submissions were rejected.

TIPS TO TAKE AWAY

  • This case is another blow to claimant’s involved in tripping accidents;
  • Not all foreseeable risks give rise to the duty to take remedial action;
  • When considering reasonable foreseeability you must take a practical and realistic approach to the kind of dangers which impose an obligation to remedy;
  • There must be something more than the everyday risks which pedestrians face from normal blemishes;
  • The question is whether the risk creates “a real source of danger”.
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