Occupiers’ liability: Debells ring out for a practical approach to foreseeability
Debell v Dean and Chapter of Rochester Cathedral
Court of Appeal
The Court of Appeal has revisited the meaning of reasonable foreseeability in the context of claims brought under the Occupiers’ Liability Act 1957. Taking a practical approach, the Court has found that a visitor may still be reasonably safe, meaning that an occupier will not be in breach, notwithstanding the presence of minor defects which carry a foreseeable risk of causing an accident. Liz Harrison draws out the facts, findings and implications in Debell v Dean and Chapter of Rochester Cathedral .
The case considers the application of the reasonable foreseeability test to claims brought under the Occupiers’ Liability Act 1957.
The Claimant, Mr Debell, was injured when he tripped as he was walking through the precincts of Rochester Cathedral. At the end of the road were two bollards with a chain between them used to prevent traffic from entering the road. There was a gap between one of the bollards and a low wall through which the Claimant and his wife attempted to walk.
Unfortunately, at some point prior to the accident, the bollard had been damaged so that the concrete into which it was embedded had broken and was raised out of the road surface. The concrete was raised approximately 1 inch above the surface and protruded into the gap between bollard and wall by approximately 2 inches. As the Claimant was making his way through the gap he tripped on the protruding concrete and sustained a shoulder injury and hernia.
First instance decision
HHJ Coltart sitting at Lewes County Court considered that the small protruding piece of concrete did give rise to a foreseeable risk of causing injury to someone walking in the way the Claimant was and therefore considered the Cathedral to be in breach.
He found the Claimant to be contributory negligent and apportioned liability 80/20 in his favour.
The Cathedral’s principal ground of appeal was that the Judge had misdirected himself as to the standard to be applied.
In addition, the following grounds were raised:
That the Judge applied an inconsistent duty of care by stating that consideration of the bollard as a potential danger depended upon its location – this was dismissed as incorrect as a matter of law. Citing the 1973 Court of Appeal case of Rider v Rider, Elias LJ stated that foreseeability of harm may well depend upon the use made of a road where an accident occurred.
That the evidence did not support the conclusion that the accident was caused by the concrete and that the decision on contributory negligence was contrary to the finding of liability – both of these grounds were also dismissed.
In allowing the appeal on the ground that the Judge had misdirected himself as to the standard to be applied, Elias LJ referred to the previous decision in Mills v Barnsley Metropolitan Borough Council  which was a tripping case brought under s.41 of the Highways Act 1980 regarding duty to maintain the highway. In Mills, Steyn LJ had concluded that “the test of dangerousness is one of reasonable foresight of harm to users of the highway”.
In applying the principles in Mills to this case, Elias LJ considered that “the critical question is when danger can reasonably be said to have been anticipated”. He emphasised that whilst the test is one of “reasonable foreseeability of harm this does not mean that any foreseeable risk is sufficient” going on to note that this is so even where the risk is more than “fanciful”.
Ultimately he concluded that it was a matter for the trial judge to consider whether a danger is sufficiently serious to require the occupier to take steps to eliminate it. On that basis he concluded that the trial judge had misdirected himself in failing to recognise that not all foreseeable risks give rise to a duty upon an occupier to take remedial action, rather than taking a “practical and realistic approach” to the kinds of dangers that an occupier was obliged to remedy. Ultimately the question in this case was whether the concrete presented a “real danger” which was more than the “everyday risk which pedestrians inevitably face from normal blemishes”.
For further information please contact Liz Harrison, Associate on +44 151 907 3419 or at firstname.lastname@example.org
This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.