Debell v Dean and Chapter of Rochester Cathedral
The Court of Appeal considered an occupier’s obligations in respect of ensuring the reasonable safety of visitors and whether the safety of visitors should be guaranteed. The Court of Appeal specifically gave guidance on an occupier’s duties in relation to defects and whether a foreseeable risk gave rise to an automatic duty to repair.
Mr Debell and his wife were walking through the cathedral precincts to get to the High Street where they were meeting their friends for lunch. The route which they used took them through the college yard and they approached a point where there was a narrow gap between a low wall and a bollard. Mr Debell followed his wife through the gap in single file and as he did so, he fell over a small lump of concrete protruding from the base of the bollard. Mr Debell suffered a hernia and an injured shoulder as a result of the accident and brought a claim against Rochester Cathedral.
Mr Debell’s claim was heard at Lewes County Court on 14 April 2015 where he was awarded damages in the sum of £21,597, after a 20% reduction had been made for contributory negligence. The judge held that Rochester Cathedral was liable for the accident on the basis that the piece of concrete had given rise to a foreseeable risk of injury to Mr Debell when he was walking through the narrow gap.
Rochester Cathedral appealed the decision suggesting that the evidence presented before the judge did not support that the accident was caused by the piece of concrete. It was also submitted that the judge had applied an inconsistent duty of care because a potential danger could not be safe in one place when unsafe in another. It was also advanced by Rochester Cathedral that the judge’s decision on contributory negligence conflicted with its findings in respect of liability. It was specifically asserted that because Mr Debell did not see the piece of concrete, this supported that it was too small for it to have presented a foreseeable risk of injury.
The Court of Appeal considered whether the piece of concrete created a danger of a kind which Rochester Cathedral was required to address. In particular, it was considered whether the protruding concrete presented more than an everyday risk and whether there was a real source of danger.
The Court of Appeal found that the piece of concrete was extremely small and could not be said to pose a real danger to pedestrians. Also the bollard, which the concrete protruded from, was not seen as being positioned in such a way that people would be required to walk closely by it, even when approaching it from an angle. The Court of Appeal concluded that although Mr Debell had walked close to the bollard, it was not foreseeable that he would injure himself as he did.
The Court of Appeal allowed the appeal finding that the piece of concrete did not give rise to a real source of danger and that the judge had not taken a practical and realistic approach when applying the concept of reasonable foreseeability. It was held that if the judge had taken a practical approach then they would have appreciated that not all foreseeable risks give rise to a duty for an occupier to repair.
It is interesting to note that the Court of Appeal applied the principles set out in Mills v Barnsley Metropolitan Borough Council (1992), in respect of an occupier being under a duty to make the land safe for visitors but not being under a duty to guarantee their safety. The Court of Appeal concluded that liability could only be imposed if there is something over and above the risk of injury from minor blemishes and defects, because these are found on any roads or pathways. In particular, the Court of Appeal gave consideration to the need for a balance to be struck between the nature and extent of the risk compared to the costs of eliminating it.
Also the Court of Appeal stressed that it is reasonably foreseeable that any defect however trivial could create a risk of injury but this does not mean that the defect is a real source of danger because the question of foreseeability and the question of what constitutes danger are not one and the same.
What this means for you
The Court of Appeal took a common sense approach in respect of the level of responsibility which an occupier owes to visitors. It should be noted that occupiers have a duty of care under section 2 of the Occupiers’ Liability Act 1957 to ensure that visitors are reasonably safe when using the premises. However, this case confirms that an occupier’s duty of reasonable care does not extend to repairing minor defects or blemishes, such as small dints, gaps or ridges, which are found on any road or pathway.
Occupiers’ should ensure that defects on their land, which go beyond every day defects and blemishes, are repaired. Also, just because a defect has been present for a long period of time does not mean that it is minor, nor does it constitute a danger in need of repair.
It is recommended that occupiers carry out frequent inspections to ensure that any notable defects are identified and then promptly repaired. However, it should be noted that a court will balance the nature and extent of the risk of injury posed by a defect against the costs of eliminating it. In any event, a defence in respect of the costs of repairing a defect should not be relied upon where the defect is more than trivial and goes beyond what is normally found on roads or pathways.
Although this case is positive in terms of an occupier not being liable to remedy trivial defects and blemishes, it should not be taken to mean that an occupier does not have a duty to maintain or inspect their premises. In particular, a defect may be considered trivial but there may be a risk of deterioration causing the defect to become a danger giving rise to a duty to repair. As a result, occupiers should bear this in mind and should look at taking action to repair any visible defects, even if arguably trivial, in order to minimise the risks of visitors injuring themselves whilst at their premises.