Dean and Chapter of Rochester Cathedral v Mr Leonard Debell
| Jurisdiction | England & Wales |
| Judge | Lord Justice Elias,Lady Justice Hallett |
| Judgment Date | 09 November 2016 |
| Neutral Citation | [2016] EWCA Civ 1094 |
| Docket Number | Case No: B3/2015/1499 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 November 2016 |
[2016] EWCA Civ 1094
Lady Justice Hallett
and
Lord Justice Elias
Case No: B3/2015/1499
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BRIGHTON COUNTY COURT
HIS HONOUR JUDGE COLTART
3YK59972
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Ronald Walker QC (instructed by Plexus Law) for the Appellant
Mr David Pittaway QC and Mr Robert Percival (instructed by Davis, Simmonds & Donaghey) for the Respondent
Hearing date: 25 October 2016
Approved Judgment
This is an appeal against the finding of liability for negligence made by HH Judge Coltart in the Lewes County court on 14 April 2015. The respondent, whom I shall call the claimant as he was below, was injured when he was walking within the precincts of Rochester Cathedral on 9 June 2010. He said that he had tripped and fallen over a small lump of concrete protruding from the base of a traffic bollard. The judge found for the claimant and awarded damages of some £21,597.00, after a 20% reduction for contributory fault. The damages finding is not challenged if, contrary to the Cathedral's submissions, the finding of liability is sustainable.
The judge described the circumstances of the accident as follows:
"I find that on 9 th June 2010 the claimant and his wife had parked their car in Minor Canon Row in Rochester and were walking through the cathedral precincts to get to the High Street where they were meeting friends for lunch. The route they took, took them up College Yard. It is a route that they had used on a number of occasions before, this meeting with friends for lunch being a fairly regular occurrence for them at the time, happening perhaps as often as once a month. As they got to a point in College Yard, Mrs Debell was in front of her husband and they both went through or attempted to go through a gap between a low wall with a coping stone on top of it and a bollard. [The judge then referred to certain photographs showing the path taken and the positioning of the bollard]. As I say, Mrs Debell went through the gap, her husband unfortunately tripped on something and fell injuring his shoulder and bringing on a hernia."
The bollard in question was one of two bollards placed at the end of a road with a linked chain between them designed to prevent traffic from entering the road. It was because the road was blocked that pedestrians had to enter via the relatively narrow gap between the wall and the bollard which was about two feet wide.
The judge referred to certain photographs which showed that the concrete was broken and fragmented and had been in part lifted out of the road surface. The largest piece was raised about one inch above the surface. (A photograph showed that it was the diameter of a ten pence piece.) It was still attached to the base of the bollard and protruded into the gap by about two inches.
The judge referred to the fact that although the Cathedral did their best to prevent cars parking in the area, cars were so parked and occasionally a car would hit a bollard knocking it out of the vertical and causing the concrete on which it was embedded to rise and fracture, as in this case. The presence of cars also meant that pedestrians were often required to walk between the cars which might cause them to approach the two feet gap at an angle. As the judge found, that was what the claimant did here. The judge considered that the fact that the gap was narrow made it "all the more important that it is not in any way obstructed in a way that causes a danger".
He then went on to consider whether the Cathedral was liable for the injury and concluded that it was. He summarised his reasons as follows:
"So I ask myself the question, did the state of the concrete give rise to the foreseeable risk of causing injury to a passer-by? In the particular circumstances of this case I find that this piece of concrete did give rise to a foreseeable risk of causing injury to somebody walking in the way that Mr Debell was. In order to negotiate this narrow gap, this piece of concrete, albeit in itself only an inch high and perhaps protruding by no more than twice that amount it was in this case foreseeable that somebody would trip on this particular piece of concrete and so I find that liability has been established in this case. "
The law
Section 1 of the Occupiers' Liability Act 1957 states that an occupier of premises owes a common law duty of care to all his visitors (save for certain immaterial exceptions not applicable here). The common law duty of care is then defined by section 2 as follows:
"The common duty of care is 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 purposes for which he is invited or permitted by the occupier to be there."
This duty includes an obligation on an occupier of premises to take steps to remove dangers which have materialised, even though the occupier did not cause them. In this case the damage to the bollard was caused by a visitor's car, but if the damaged bollard was a danger to a visitor on the premises so as to render the premises not reasonably safe, there would be a duty of care to eliminate the danger and make it safe.
When does inaction constitute a breach of the duty of care? There are a number of factors which, depending on the circumstances, may be material when determining that issue. They may include 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 is whether the visitor will be reasonably safe in using the premises.
This particular accident in this case involved a pedestrian using a footpath. Tripping, slipping and falling are everyday occurrences on the roads and pavements. No highway authority or occupier of premises like the Cathedral in this case could possibly ensure that the roads or the precincts around a building were maintained in a pristine state. Even if they were, accidents would still happen; it is part of the human condition. There will always be some weathering and wearing away of roads, pavements and paths resulting in small divots, slopes or broken edges which might provide some kind of risk to the unwary and lead to accidents. The law does not seek to make the highway authority or the occupier of land automatically liable for injuries caused by such accidents. The obligation on the occupier is to make the land reasonably safe for visitors, not to guarantee their safety. In order to impose liability, there must be something over and above the risk of injury from the minor blemishes and defects which are habitually found on any road or pathway. The law has 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.
These points were brought out by the decision of the Court of Appeal in Mills v Barnsley Metropolitan Borough Council [1992] 1 P.I.Q.R P291. The appellant claimed that she had been injured as a result of catching her heel in a small hole in the road. The road consisted of paved slabs interspersed with paving bricks. One of the bricks had broken off leaving a hole which was two inches across at its widest and one and a quarter inches deep. The case was brought under the Highways Act 1980. By section 41 the authority is under a duty to maintain the highway. The authorities, including the judgment of Steyn LJ in Mills itself, establish that the failure to maintain is only established where there is a danger to traffic or pedestrians in the sense that danger may reasonably have been anticipated from its continued use by the public. Counsel accepted that essentially the same test should be applied in the circumstances of this case under section 2 the 1957 Act.
The critical question is when danger can reasonably be said to have been anticipated. The Court of Appeal (Dillon and Steyn LJJ) considered this question in Mills and overturned a finding of liability made by the county court judge. Lord Justice Steyn gave a judgment in which he said this:
"…The short point is whether the judge was right in these circumstances in regarding this as a danger to women. Like the judge, I do not consider that it would be right to say that a depression of less than one inch will never be dangerous but one above will always be dangerous. Such mechanical jurisprudence is not to be encouraged. All that one can say is that the test of dangerousness is one of reasonable foresight of harm to users of the highway, and that each case will turn on its own facts. Here the photographs are particularly helpful. In my judgment the photographs reveal a wholly unremarkable scene. Indeed, it could be said that the layout of the slabs and the paving bricks appears to be excellent, and that the missing corner of the brick is less significant than the irregularities and depressions which are a feature of streets in towns and cities up and down the country. In the same way as the public must expect minor obstructions on roads, such as cobblestones, cats eyes and pedestrian crossing studs, and so forth, the public must expect minor depressions. Not surprisingly, there was no evidence of any other tripping...
To continue reading
Request your trial
-
Mr Philip James Clay v TUI UK Ltd
...Ltd [2008] UKHL 13, [2008] 1 AC 884; Spencer v Wincanton Holdings Limited [2009] EWCA Civ 1404 and Debell v Rochester Cathedral [2016] EWCA Civ 1094. We have also considered Clerk & Lindsell on Torts (22 nd ed.) at 2–105 to 2–130 and McGregor on Damages (19 th ed.) at 8–033 to 8–077. 25 As......
-
Kanwarjit Singh Juj v John Lewis Partnership Plc
...repeatedly, the absence of a need to take precautions, or warn, against obvious risks ( Edwards; Rochester Cathedral v Debell [2016] EWCA Civ 1094). In the Respondent's submission, misjudging a kerb constituted one such example. That, trite, principle had been illustrated, neatly in Edward......
-
Mitchell v North Somerset Council
...and the Court of Appeal has said on more than one occasion that each case will turn on its own facts. In a recent case, Dean and Chapter of Rochester Cathedral v Debell [2016] EWCA Civ 1094, the Court of Appeal said at paragraph 16: "In the end it is an exercise of judgment for the trial ju......
-
Miss Nikola Jayne Williams v Shropshire Council
...of harm only and did not include the assessment of dangerousness required by Dean and Chapter of Rochester Cathedral v Debell [2016] EWCA Civ 1094; third, the Judge had failed to take into account that at trial the respondent's case had been that it was the slope in the step which presente......
-
Street Equipment
...[1992] 1 PIQR P291 4. Lewis v Wandsworth Borough Council [2020] EWHC 3205 (QB) 5. Dean & Chapter of Rochester Cathedral v Debell [2016] EWCA Civ 1094 The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific...