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Occupiers’ liability: Debells ring out for a practical approach to foreseeability

Debell v Dean and Chapter of Rochester Cathedral
9.11.16
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 [2016]. 

Background

The case considers the application of the reasonable foreseeability test to claims brought under the Occupiers’ Liability Act 1957.

Facts

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.

Appeal

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.

Decision

  • 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 [1992] 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”. 

Comment

  • This is a tripping claim brought under the Occupiers’ Liability Act 1957 and, as such, had a good deal in common with previous decisions, such as Mills brought under the Highways Act 1980.  Indeed it was accepted by Counsel for both parties that essentially that same test as applied in Mills should be applied in the circumstances of this case. The decision on reasonable foreseeability, however, has wider application than just tripping claims and applies to all occupiers’ liability claims where injury is caused as a consequence of minor defects.

  • In Mills it is apparent that Steyn LJ was very much influenced by the need to ensure that the law should not impose unreasonably high standards upon the local authority which would divert scarce public resources away from more urgent needs.  As he noted “the risk was of a low order and the cost of remedying such minor defects over the country would be enormous”.

  • In this case, however, Elias LJ has shifted the emphasis from what he calls this “heightened foreseeability test”.  He specifically rejected the submission that the Court was obliged to address the balance between the rights of the Claimant and the cost to the Cathedral of eliminating the risk (which may have been low).  Rather, what needed to be considered was the cost in terms of time and money of having to identify and remedy faults of this nature which needed to be considered.  This could arguably reduce the need for occupiers to demonstrate a robust system of inspection and maintenance – at least in respect of minor defects.

  • The approach that “accidents do happen” and the decision in this case that the defective concrete was essentially just one of those things that pedestrians need to get on with and expect, is very welcome.  It is not, however, carte blanche for occupiers to fail to address obvious dangers and each case will, as ever, turn upon its own facts.  The duty remains a duty to “take such care as in all the circumstances is reasonable to see that a visitor will be reasonably safe”.  What can be taken from the decision, however, is that a visitor may still be reasonably safe even if the premises are not perfect.

Contact

For further information please contact Liz Harrison, Associate on +44 151 907 3419 or at liz.harrison@dwf.law

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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.

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