Occupiers Liability and highways claims converge

News | Thu 17th Nov, 2016

In Edwards v London Borough of Sutton (2016) EWCA Civ 1005 McCombe LJ expressed the view that “not every accident (even if it has serious consequences) has to have been the fault of another; and an occupier is not an insurer against injuries sustained on his premises”. That case involved a catastrophic injury caused by the claimant falling from a bridge. No duty was owed because, inter alia, any risk posed by the premises was entirely obvious. Yet underlying the judgment is the clear theme that the standard of care to be imposed upon occupiers should not be set at an unreasonably high level. It is interesting, therefore, to note that in the case of Rochester Cathedral v Debell (2016) EWCA Civ 1094, handed down only a few months after Edwards, the Court of Appeal took a similar approach to very minor defects at the opposite end of the scale of seriousness. In Debell the Claimant tripped over a small lump of concrete protruding from the base of a traffic bollard on the Cathedral grounds. He sustained relatively modest physical injuries. The judge concluded that the state of the concrete gave rise to the ‘foreseeable risk’ of causing injury and that liability must therefore attach. The Court of Appeal held that the case law which had developed under section 41 of the Highways Act 1980 was equally applicable to Occupiers Liability tripping claims. Although the ultimate test was one of ‘reasonable foreseeability’, this had a specific meaning in tripping accidents of this nature and therefore became a test of ‘heightened foreseeability’ which required a ‘real source of danger’. It was not relevant to consider whether it would have been unduly burdensome on the occupier to remove the particular defect which had caused this accident, but instead the focus should be on whether it would be unreasonable to impose an obligation to identify and remove all defects of this nature across this and other premises. On the facts, the trial judge had failed to recognise this important distinction and had applied a bare test of foreseeability. He should have recognised that the lump of concrete posed no greater risk than that “which pedestrians inevitably face from normal blemishes”. Accordingly, the appeal was allowed.

As a point of principle, there is some comfort to be drawn from the judgment for Claimants. The Defendant had attempted to argue that the trial judge’s conclusion that the Claimant was nevertheless 20% contributorily negligent for failing to see and avoid the defect was inconsistent with the finding that the defect was a real source of danger. This submission was roundly rejected by Elias LJ, who noted that:

“…it fails to recognise that the duty of care is not only for the careful pedestrian but also the inattentive or careless one who may well not notice a hazard in the road. Every finding of contributory fault involves a recognition that the accident occurred because of some fault on both sides, a typical state of affairs in these cases. The fact that the claimant should have taken greater care to identify the risk and thereby avoid the accident is not remotely inconsistent with a finding that the Cathedral authorities ought to have taken reasonable care to eliminate the risk”.