Criminal lawyers are often asked how they can bring themselves to defend people who they know are guilty. Actually, I am asked that not infrequently too... But the more common dinner party accusation aimed at civil common law lawyers is: "Pft! Nanny state! People can sue for anything nowadays! Don't people have to take some responsibility for themselves?" I have two responses to this. My usual one is to disappear behind my glass of wine before changing the subject. The other is to say that yes, people bring some ridiculous claims, but it doesn't necessarily mean they win. The newspaper reading nation has been shocked by publicity about some of the claims brought by police officers injured in the course of their duties that have been pursued. I don't know any lawyers in our line of business who have.
One has the impression that the Court of Appeal were perhaps a little vexed by the case of Tacagni v Cornwall County Council and ors. Judgment was handed down yesterday. Ms Tacagni sued various parties. Her claim was dealt with under the Occupiers Liability Act 1957. After consuming eight drinks over a "long" evening Ms Tacagni was walking home in the dark with her partner. They had no torch and she was wearing uncomfortable shoes. The pair walked along a raised pathway that ran approximately two metres above and alongside a road until they decided that it was too dark and turned back. Ms Tacagni's partner left her to go and call a taxi. Ms Tacagni set off on her own, using a fence to guide her along the path. Following the line of the fence Ms Tacagni left the path, crossed 4.8 metres of grass and fell off the edge of the raised section onto the road below. The fence had been erected around an area of the pathway's retaining wall which had collapsed in 2001. The Court at first instance heard some evidence from the Defendant about concerns one of its employees had had about whether the fence was sufficient to protect cyclists and children. The judge was obviously swayed by this criticism and found for the claimant, with a two thirds deduction for contributory negligence.
The Court of Appeal allowed the local authority's appeal and dismissed Ms Tacagni's claim. Their lordships concluded that the evidence as a whole did not warrant the judge's finding that the local authority had unreasonably failed to guard against the risk of accident that in fact befell Ms Tacagni. It was hard to envisage that a person would be using the fence as a guide and that it would not have been obvious to them that they were departing from the path and crossing a significant portion of the grass. Accordingly, the evidence did not warrant the conclusion that the local authority had breached its common duty of care. The judge had left out a material factor in his evaluation: the degree of care that was to be expected of an ordinary visitor under s.2(3) of the Act.
So next time you find yourself at a dinner party being harangued about the state of the law and the fact that people are not expected to take care for themselves you can disappear behind your glass of wine secure in the knowledge that, for the purposes of the Occupiers Liability Act 1957 at least, from time to time the courts conclude that yes they do.