A recent Court of Appeal decision held that occupiers are not liable in negligence for failing to make other parties carry public liability insurance
Key points |
? A local authority is not automatically liable for negligence on the part of the organisers of a horse fair on its land ? Where a duty to prevent injury does not arise, neither does one to ensure that insurance for such injury is in place |
Readers will be well aware of the legal duties owed by occupiers of real estate to persons who, lawfully or unlawfully, enter their property. The common law obligations towards lawful visitors were simplified by the Occupiers’ Liability Act 1957. More radically, in 1984, parliament, acting on recommendations from the Law Commission, created a more limited (but nevertheless controversial) duty towards trespassers and other uninvited entrants, by passing the Occupiers’ Liability Act 1984.
That duty, for all the fury that it generated among landowners, has proved a far cry from the “trespassers’ charter” that was predicted. Moreover, it should be remembered that even the greater duty owed to lawful visitors does not guarantee safety. The occupier’s duty is merely the “common duty of care”, which means a duty to take reasonable care to ensure that the visitor will be reasonably safe in using the occupier’s premises for permitted purposes.
What amounts to reasonable care is a matter of fact, dependent on all the circumstances of a particular case. However, a recent decision of the Court of Appeal gives a clear indication of where some of the boundaries of liability may be expected to lie.
Liability for injury
Glaister v Appleby-in-Westmoreland Town Council [2009] EWCA Civ 1325; [2010] PLSCS 4 concerned an accident that occurred at the Appleby horse fair. This week-long annual event, which dates back to the middle ages, was originally a venue for the trading of horses and other livestock. In modern times, it has become a tourist attraction and includes not only horse-dealing but also informal racing of horses and light horse-drawn carriages, trade stands and so on.
As well as tourists, the fair attracts travellers, several thousand of whom come to Appleby every year. Most are accommodated on Fair Hill, which is owned by the council, although the activities of the fair extend to other land in private ownership and to parts of the highway. At peak times, as many as 45,000 spectators watch the racing along a stretch of highway that is temporarily closed for this purpose.
In June 2004, the claimant was standing with his wife and daughter on a grass verge, watching horses and carriages being raced along the road. Hearing a noise behind him, he turned and saw a stray horse whose tethering lead was hanging loose. Fearful for his family’s safety, the claimant attempted to take hold of the tether but, as he did so, the horse kicked him in the head, causing serious injury. His claim in respect of this injury was joined by claims on behalf of his wife and daughter, who alleged that they had suffered psychological damage from witnessing the accident.
The legal claims were brought against the defendant council, not as occupier (for the accident did not take place on its land) but, analogously, as the leading organiser of the horse fair. The evidence made it clear that, in this capacity, the council had been aware of safety issues and had considered procuring insurance to cover injuries to members of the public. However, at the relevant time, it had not done so.
The claimants succeeded at first instance, the judge ruling that the council was in breach of a legal duty to ensure that public liability insurance was in place. The Court of Appeal unanimously overturned the decision, in terms that clearly restrict the legal responsibilities of occupiers and others in a similar situation.
At first, the claimants argued that the council owed them a duty of care to ensure that arrangements were put in place, either by the council or by others, for the proper segregation and supervision of tethered horses. This argument was, however, abandoned and, in the Court of Appeal’s view, rightly so. As Toulson LJ pointed out, the council could hardly be under a duty to supervise horses on someone else’s land.
As to whether the council should have made others act responsibly, the court emphasised the undoubted position in English law that, generally speaking, one party is under no duty to prevent another party from negligently causing harm to a third. That principle has exceptions, namely: a relationship between A and B may be sufficiently close to mean that A has to protect B from C, or the relationship between A and C may be sufficiently close to mean that A has to prevent C from harming B. However, these exceptions are just that, exceptions to the general principle of non-liability.
Having thus abandoned their original claim, the claimants relied in the Court of Appeal on what they suggested was a separate duty, namely that of ensuring that there was in place a policy of public liability insurance sufficient to cover their injuries. Such a duty would of course be one stage removed from seeking to hold the council directly liable for personal injury caused by the negligence of a third party on the ground that the council should have foreseen and prevented it. It would instead be for the economic loss suffered as a result of the absence of a public liability policy, which the council could have taken steps to ensure was in place.
Novel territory
In rejecting this claim (and thus reflecting the usual reluctance of the English courts to impose liability in negligence for causing pure economic loss), the Court of Appeal clearly believed that it was entering novel territory. With respect, this hardly seems correct.
Earlier decisions by the Court of Appeal had rejected a duty, either to insure or to recommend insurance, on an employer sending an employee to a country without universal third-party motor insurance (see Reid v Rush & Tompkins Group plc [1989] 3 All ER 228), and on a school aware of the risk of injury to students on the sports field: see Van Oppen v Clerk to the Trustees of the Bedford Charity [1989] 3 All ER 389.
If the relationships between employer/employee and school/student are not sufficient to impose such a protective duty, it is not surprising that the claim against the council failed in this case.
John Murdoch, professor emeritus, Reading University
