Glaister and Others v Appleby-in-Westmorland Town Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Toulson,Lord Justice Jacob,Master of the Rolls |
| Judgment Date | 09 December 2009 |
| Neutral Citation | [2009] EWCA Civ 1325 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2009/0649 |
| Date | 09 December 2009 |
[2009] EWCA Civ 1325
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MIDDLESBROUGH COUNTY COURT
Mr Recorder Storey QC
7DL01684
Royal Courts of Justice
Strand, London, WC2A 2LL
Master of the Rolls
Lord Justice Jacob
and
Lord Justice Toulson
Case No: B3/2009/0649
Michael Kent QC and Steven Snowden (instructed by Crutes LLP) for the Appellant
Philip Havers QC and Paul Kirtley (instructed by Messrs Donelly McArdle Adamson) for the Respondents
Hearing date: 25 November 2009
On 5 June 2004 Mr Geoffrey Glaister, the first claimant, suffered a serious accident at the Appleby Horse Fair. He had gone to the fair with his wife and daughter, the second and third claimants. They were standing on a grass verge on Long Marton Road, close to where horses were tethered, and were watching horses and carriages being raced, when Mr Glaister heard a commotion behind him. He turned to see what was happening. He saw an un-tethered horse close to him. The horse must have broken loose because its tethering lead was hanging loose. No one knows who the horse belonged to, where it came from or how it had broken free. Someone called to Mr Glaister to take hold of the tether. He was concerned for his family's safety and about what might happen if the horse strayed into the racing line, and so he tried to take hold of its lead. As he bent down to do so, the horse turned and kicked him in the head, causing him serious injury. The accident has left him with permanent disabilities and greatly reduced earning power. At the time of the accident he was aged 44.
Mr Glaister sued the Appleby-in-Westmorland Town Council ("the Town Council") and so did his wife and daughter. Their claim was in respect of psychological injuries allegedly brought on by the shock of the accident.
It was originally alleged on his behalf that the accident was caused by negligence on the part of the Town Council, in particular, in allowing horses to be tethered in close vicinity to other horses racing along the highway and failing to ensure that the tethered horses were properly supervised, but that part of the claim was abandoned. The action proceeded on an alternative claim that the Town Council negligently failed to take proper care to see that public liability insurance was arranged which would have covered the circumstances of the accident. The matter went to trial on that allegation. It was heard by Mr Recorder Christopher Storey QC in the Middlesbrough County Court on 3 and 4 July 2008 and 21 January 2009. Judgment was reserved and was delivered on 2 March 2009. The recorder found for the claimants on the issue of liability and gave judgment for damages to be assessed. The Town Council appeals against his judgment.
The facts
Appleby-in-Westmorland is a small town in Cumbria with a population of about 2500. The Appleby Horse Fair is an event which has been held for several centuries and probably since the middle ages.
The fair takes place each June. It lasts for a week. Historically it was an event for trading horses and livestock. The activities today include horse showing and selling horses, informal horse racing and "sulky" racing. A sulky is a form of carriage. There are also trade exhibitors. The event attracts several thousand travellers together with their horses and caravans. For many years a large number of the travellers have been accommodated on Fair Hill, which is owned by the Town Council, but the activities of the fair extend to other land in private ownership and to parts of the highway. In about 2003 a "flashing lane" for racing was built adjacent to Long Marton Road (but not used), and for many years it has been the custom of the highway authority to obtain a temporary road closure order covering Long Marton Road for the duration of the fair. The highway authority for Long Marton Road was Cumbria County Council and it duly obtained a road closure order for the 2004 fair.
For years the event has brought to Appleby large numbers of visitors and tourists who like to observe the gypsy caravans, buy from stalls, visit the markets which are set out and watch the horses. The peak daily attendance at weekends is around 45,000. Many visitors stand on the verge of Long Marton Road to watch the "flashing" of the horses, as Mr Glaister and his family were doing when he suffered his accident.
The recorder found that there was no one body which had exclusive control over the fair, but that over the last 40 years various attempts had been made by combinations of public bodies to exert some control over it. There was a committee called the Appleby Fair Joint Committee ("the Fair Committee") and another committee called the Appleby New Fair Joint Committee ("the New Fair Committee"). The Fair Committee was composed of representatives of the Town Council and the travellers. The recorder said that this committee existed largely to be the recipient of an informal grant of a licence to use Fair Hill for the duration of the fair and to administer matters arising from the grant. It controlled the activities on Fair Hill.
The New Fair Committee comprised representatives of the Town Council, Eden District Council, Cumbria County Council, Cumbria Police, Cumbria Fire Service, DEFRA, the RSPCA, Appleby Chamber of Trade and the travellers. It had no formal constitution. Its chairman was Mr Alan Morgan, who was a member of both the Town Council and Eden District Council. It held meetings at about 6 month intervals before and after each year's fair. The recorder found that the New Fair Committee itself had no duties or powers to direct operations relating to the conduct of the fair, but its various constituent members had different statutory powers and duties which bore on different aspects of the fair, such as environmental issues, highway safety and fire precautions. He found that the Town Council "was the leading body in the Fair's organisation at the time of this accident"; but, having observed that the constituent members of the New Joint Committee had different powers and responsibilities, he did not attempt to define the particular powers or responsibilities of the Town Council. Perhaps this was unnecessary, since no allegation was being made that the Town Council was to blame for the accident.
The minutes of the New Fair Committee showed that the committee discussed various health and safety issues. The recorder noted in his judgment that Mr Morgan, who was called as a witness by the Town Council, agreed in cross-examination that in 2003 it was appreciated that the "primary connection of the fair was with Fair Hill, but the fair activities spread well beyond Fair Hill" and that "there were serious safety concerns with serious injuries having incurred". He was questioned about a minute of Eden District Council in 2003, which referred to the fair being urgently in need of management control and the possibility of income being used for a variety of purposes including "insuring the event". The recorder said that he regarded as particularly significant an answer given by Mr Morgan that "we were considering insurance to cover all ills arising from the event as a whole, but the problems were getting the cover and finding an insurer".
The Town Council encouraged visitors to the fair by promoting it on its website.
The claimants called evidence from an insurance broker who said that it would have been possible to have arranged joint insurance cover for the various councils and authorities involved in the organisation of the fair in respect of their public liability risks, i.e. risks of liability for injury or damage caused by their negligence, but such cover would not have extended to the liabilities of individual participants at the fair, such as trade exhibitors.
The defined issue
The pleaded case was that the Town Council owed a duty to visitors to the fair to ensure, as a condition or prerequisite of permitting travellers and gypsy horse dealers to use Fair Hill as a caravan site and tethering ground for horses for sale, that "there existed Public Liability insurance against the risk of injury to members of the public attending the Fair". The pleading did not specify who were to be the insured parties. Before the trial counsel for the parties agreed that the crucial issue could be defined as follows:
"Was D under a duty of care to ensure that appropriate public liability insurance in respect of negligent acts or omissions by participants in the Fair was in place?"
The agreed minute also recorded that the claimants contended that the Town Council should have done so by way of a condition of the licence for the use of Fair Hill and not that there was a duty on the part of the Town Council itself to obtain or effect such insurance.
The agreed definition of the issue left unclear what precisely was meant by the expression "participants in the Fair", i.e. whether it included those who had come to show, race or sell horses or whether it was limited to bodies which had some responsibility for organising aspects of the fair.
The judgment
The recorder held that the Town Council owed visitors to the fair a duty to take reasonable steps to ensure the placement of the kind of public liability insurance which the broking evidence showed would have been available.
He found that if the Town Council had made the grant of a licence to the Fair Committee for the use of Fair Hill conditional on such insurance being in place, the...
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