Occupiers’ Liability Act 1957 – Common duty of care – Foreseeable risk – Appellants held liable for injuries suffered by respondent when tripping over lump of concrete protruding from traffic bollard – Proper application of test of foreseeability of risk in relation to tripping hazards – Whether judge erring in application of test – Appeal allowed
The respondent injured his shoulder and suffered a hernia when he tripped and fell while walking within the precincts of the appellants’ cathedral. He claimed to have tripped over a small lump of concrete that protruded from the base of a traffic bollard, which was one of two that had been placed on a road leading into the cathedral precincts, with a linked chain between them, in order to prevent traffic from entering the road. Because the road was blocked, pedestrians had to enter through a relatively narrow gap, about 2ft wide, between the bollard and a low wall to the side. The concrete in which the bollard was embedded was broken and fragmented and had been in part lifted out of the road surface, with the largest piece raise about one inch above the surface and protruding into the gap by about two inches.
The respondent succeeded in the county court in a claim for damages against the appellants for his injuries. Damages of £21,597 were awarded for breach of the appellants’ duty of care under the Occupiers’ Liability Act 1957, although the respondent was found to be contributorily negligent to the extent of 20%.
The judge found that, while the appellants did their best to prevent parking in the area, cars nonetheless parked there and a car would occasionally hit a bollard, knocking it out of the vertical and causing the concrete on which it was embedded to rise and fracture. He also found that, when pedestrians had to walk between parked cars, that might cause them approach the 2ft gap at an angle, as the respondent had done. He considered that the narrowness of the gap made it all the more important that it was not in any way obstructed in a way that caused a danger. He concluded that the state of the concrete gave rise to a foreseeable risk of causing injury to a passer-by walking in the way that the respondent had done, so that liability under the 1957 Act was established. The appellant appealed on the issue of liability.
Held: The appeal was allowed.
(1) The 1957 Act included an obligation to take steps to remove dangers that had materialised, even though the occupier did not cause them. There were various factors which, depending on the circumstances, might be relevant when determining whether inaction constituted a breach of the duty of care. These included the likelihood of the risk of injury; whether there was a system in place to identify the danger so that it could be removed speedily; and the difficulty and cost of removing the danger. The overriding question was whether the visitor would be reasonably safe in using the premises.
(2) Tripping, slipping and falling were everyday occurrences on the roads and pavements. No highway authority, or occupier of premises like the cathedral, could possibly ensure that the roads or the precincts around a building were maintained in a pristine state and, even if they were, accidents would still happen. The law did not seek to make the highway authority or the occupier of land automatically liable for injuries caused by tripping accidents. The obligation on the occupier was to make the land reasonably safe for visitors, not to guarantee their safety. In order to impose liability, there had to be something over and above the risk of injury from the minor blemishes and defects which were habitually found on any road or pathway. The law had to strike a balance between the nature and extent of the risk, on the one hand, and the cost of eliminating it, on the other.
(3) A breach of duty by failure to maintain was only established where there was a danger to traffic or pedestrians in the sense that danger might reasonably have been anticipated from its continued use by the public. Although reasonable foreseeability of harm was a prerequisite of liability, that did not mean that any foreseeable risk was sufficient. The state of affairs might pose a risk which was more than fanciful, and yet did not attract liability if the danger was not eliminated. A visitor might be reasonably safe notwithstanding that there might be visible minor defects on the road which carried a foreseeable risk of causing an accident and injury: Mills v Barnsley Metropolitan Borough Council [1992] PIQR P291 and James v Preseli Pembrokeshire District Council [1993] PIQR P114 applied.
In that regard, it was not necessary to apply a two-stage test, asking first whether there was foreseeability of harm and, second, whether a reasonable person would regard it as presenting a real source of danger. Instead, the test was reasonable foreseeability, but recognising the particular meaning which that concept had in that context. The risk was reasonably foreseeable only where there was a real source of danger which a reasonable person would recognise as obliging the occupier to take remedial action. Ultimately, it was an exercise of judgment for the trial judge to decide whether the danger was sufficiently serious to require the occupier to take steps to eliminate it. Provided the judge had properly directed himself, the appeal court could only interfere if he had reached a judgment which he could not reasonably reach on the evidence.
(4) The judge had been entitled to find, on the evidence, that the respondent’s accident was caused by the piece of concrete. The finding of causation was a matter for the judge, on which he had reached an obvious and common sense conclusion displaying no conceivable error of law.
The judge had properly taken the view that whether the bollard was a potential danger required consideration of its location and dimensions. The likelihood or foreseeability of harm might well depend on the use made of the road where the accident occurred: Rider v Rider [1973] QB 505 applied.
The judge’s decision on contributory negligence was consistent with his findings on liability. The duty of care was not only for the careful pedestrian but also for the inattentive or careless one who might well not notice a hazard in the road. Every finding of contributory fault involved a recognition that the accident occurred because of some fault on both sides. The fact that the respondent should have taken greater care to identify the risk, and thereby avoid the accident, was not inconsistent with a finding that the appellants should have taken reasonable care to eliminate the risk.
(5) However, the judge had misdirected himself as to the proper application of the foreseeability test. His judgment contained no recognition that not all foreseeable risks gave rise to the duty to take remedial action. The judge had to apply the concept of reasonable foreseeability by taking a practical and realistic approach to the kind of dangers which the appellants were obliged to remedy. Had he done that, he would not have reached the same decision. The question for the judge was whether the piece of concrete created a danger of a kind which the appellants were required to address. It was not open to the judge to find that the concrete present a danger above the everyday risk which pedestrians inevitably faced from normal blemishes. It was an extremely small piece of concrete which could not be said to pose a real danger to pedestrians. It was very unlikely that a pedestrian would walk so close to the bollard, even approaching it at an angle, or that he would injure himself if he did. Although the respondent’s accident was unfortunate, it was not one for which the appellants should be liable.
Ronald Walker QC (instructed by Plexus Law) appeared for the appellant; David Pittaway QC and Robert Percival (instructed by Davis, Simmonds & Donaghey, of Gillingham) appeared for the respondent.
Sally Dobson, barrister
Click here to read a transcript of Debell v Dean and Chapter of Rochester Cathedral.
