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Articles | Mon 19th Dec, 2016
In this recent case the Court of Appeal examined the correct application of the reasonable foresee-ability of harm test in cases of occupiers liability.
The decision at first instance
The defendant cathedral appealed against a finding of liability for negligence made by HH Judge Coltart in the Lewes County court on 14 April 2015. The claimant had been injured whilst walking within the precincts of Rochester Cathedral on 9 June 2010. The Judge at first instance found that he had tripped and fallen over a small lump of concrete protruding from the base of a traffic bollard as he attempted to go through a gap between a low wall and the bollard. The judge concluded that the state of the concrete gave rise to the foreseeable risk of causing injury to a passer-by and thus that the cathedral was liable for the injury. He awarded damages of some £21,597.00, after a 20% reduction for contributory fault.
The cathedral’s primary ground of appeal was that the judge misdirected himself in respect of the foreseeability of harm test. It argued that he wrongly assumed that foreseeability of harm was enough without properly applying that concept and in particular, he made no reference to the need to strike a balance between the private right and the cost to the cathedral of removing the risk.
Pursuant to section 1 of the Occupiers’ Liability Act 1957 an occupier of premises owes a common law duty of care to all his visitors which is expressed in section 2 of the Act as “a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purpose for which he is invited or permitted by the occupier to be there”. This includes an obligation on an occupier to take steps to remove dangers which materialise, even though the occupier does not cause them.
The overriding question a court must ask itself when determining whether an occupier has discharged its duty is whether the visitor would be reasonably safe in using the premises. In answering that question the law must strike a balance between the nature and extent of the risk and the cost of eliminating it. In Mills v Barnsley MBC  P.I.Q.R. P291 (applied) the failure to maintain the highway 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.
However, the Court of Appeal went on to say that whilst there must be a reasonable foreseeability of harm, that does not equate to all foreseeable risk being sufficient to establish liability (James v Preseli Pembrokeshire DC  P.I.Q.R. P114 applied). The exercise for the trial judge is ultimately one of judgment in deciding whether the danger complained of was sufficiently serious to require the occupier to take steps to eliminate it.
The Court of Appeal found that the trial judge had failed to apply the foreseeability test appropriately in such a way as to amount to misdirection. The judge had not recognized in his judgment that not all foreseeable risks give rise to the duty to take remedial action. Elias L.J. said, “The judge had to apply the concept of reasonable foreseeability taking a practical and realistic approach to the kind of dangers which the Cathedral were obliged to remedy. Had he done that, I do not think that he could have reached the decision he did.” The Court of Appeal found that the piece of concrete complained of was extremely small and could not be said to pose a real danger to pedestrians and therefore even if he had applied the right test, the conclusion he had reached was not open to him.
The case serves as a gentle reminder of how a court should address the question of foreseeability of harm in determining whether occupiers have discharged the duty of care under the 1957 Act, and that as Elias L.J noted unfortunate accidents do happen but that does not necessarily mean the occupier should be liable.
Article written by Thomas Mountford.