Many villages, towns and cities host festivals. They vary in size from the small church fete, or village show, to large carnivals. Are the bodies that encourage attendance at such events, or that undertake some responsibility in relation to them, liable for the negligence of participants in the event or to ensure that appropriate public liability insurance is in place?
Glaister v Appleby-in-Westmoreland Town Council [2009] EWCA Civ 1325; [2010] PLSCS 4 concerned the Appleby Horse Fair, an annual event dating back to the Middle Ages. One of the spectators was kicked by a horse, suffering serious head injuries. He and his family, who witnessed the incident, sued the council for psychological injuries. They succeeded at first instance. The judge ruled that the council should have ensured that public liability insurance was in place because it took a leading role in relation to the fair.
The Court of Appeal reversed the decision. It ruled that the council did not occupy the land where the accident occurred, and did not cause or direct the activities that took place. Consequently, it was not responsible for them, and could not be held liable for damage caused by a third party for whom the council was not responsible (even though it could have foreseen that an accident might occur and could have insisted on insurance that would, no doubt, have been subject to conditions designed to enhance public safety).
The claim in this case was a novel one. It relied on the existence of a free-standing duty of care to ensure that public liability insurance was in place, and was for economic loss suffered in its absence. However, if the council had no duty to protect the claimant against the physical consequences of an accident caused by the negligence of a third party, the court decided that it would not be reasonable to hold the council liable for protecting the claimant against economic losses, which are more remote and are often irrecoverable.
The decision casts doubt on Gwilliam v West Hertfordshire Hospitals NHS Trust [2002] EWCA Civ 1041, in which the Court of Appeal decided that the existence of public liability insurance was relevant to the competence of contractors selected to provide a splat-wall for a summer fair (although, when selecting a contractor, a landowner need only ask about the existence of insurance and should not be expected to check the terms of the contractor’s policy).
Their lordships could simply have distinguished Gwilliam on the ground that, in that case, the defendant owned the land on which the fair was held and was therefore liable, under the Occupiers’ Liability Act 1957, to protect the safety of its visitors by exercising reasonable care when choosing contractors. However, the Court chose to align itself with the minority view expressed in that case, that public institutions should not be required to ensure that their contractors are insured because this would open the floodgates to claims against private landowners.
Allyson Colby is a property law consultant
