Introduction

Both the legal press and national newspapers have been keen to report on two recent personal injury claims. Cole v Davis & Ors and Siddorn v Patel & Anor received considerable coverage as, in both cases, the claimant’s claim was dismissed.

Hailed by the media as ‘an outbreak of common sense’ it was suggested that judges were finally taking a stand over the compensation culture which threatens to destroy the British way of life (The Daily Mail - 2 March 2007).

It remains questionable, however, whether or not these decisions are in fact response to the public perception that ‘compensation culture’ is rife or whether the judiciary are merely following previously set authorities and the fundamental principles of the law of negligence. As queried in the title, are the recent judgments good news or just old news?

Cole and Siddorn

The facts of Cole and Siddorn have been widely reported, however, for ease of reference deserve repeating.

In Cole v Davis & Ors [2007] EWCACiv 396 the claimant, whilst walking across a village green in East Dean, fell into a hole and broke her leg. Proceedings were issued against the owners of the green, the Local Council and the Royal British Legion.

The Royal British Legion, organisers of the annual village fete held on the green, had dug the hole in 1999 to house a maypole. At the end of the fete the hole had been filled in with wood, soil and stones. The hole was exposed at the time of the claimant’s accident, however, the cause of the exposure was unknown.

At trial the District Judge dismissed the claim against the owners of the green and the council but found against the Royal British Legion on the basis that it had breached it’s duty of care to the claimant for failing to ensure that the hole was adequately filled in. The Royal British Legion appealed this decision.

On appeal it was held that the removal of the infill had caused the accident and, as the cause of the exposure was unknown, there was no evidence that the legion had breached it’s duty of care to the claimant.

Occupiers breathed a similar sigh of relief when judgment was given in Siddorn v Patel & Anor [2007] EWHC 1248 (QB). The claimant was the tenant of the first floor flat rented from the defendant. On the night of the accident there was a party at the flat and the claimant, together with five or six others, climbed through windows in the flat to access the adjoining garage roof “to dance”. The claimant inadvertently stepped on a perspex skylight and fell through it.

The claimant claimed that the defendants were negligent and/or in breach of the duty of care under s1 Occupiers Liability Act 1984 by, inter alia, failing to warn the her about the condition of the skylight nor warn her not to go out there.

The defendants argued that s1 OLA1984 did not apply as the danger had arisen from an activity rather than from the condition of the roof. It was noted that the claimant was a sensible and educated adult who had gone onto the roof in the dark when under the influence of drink.

The court agreed with the defendants and held that the danger referred to in s1 OLA 1984 had to be due to the state of the premises and not the claimant’s activity. In the present case there was no evidence that the perspex covers had been in a state of disrepair and, in any event, the claimant did not have permission to go onto the roof. The claimant’s claim was dismissed.

Previous authorities

The following two examples suggest that the courts are merely following established authorities.

The House of Lords decision in Tomlinson v (1) Congleton Borough Council (2) Cheshire County Council [2003] UKHL 47 was firm in establishing that it would be unreasonable to impose on public authorities a duty to protect persons from self inflicted harm when taking voluntary risks in the face of an obvious danger. In this case the claimant dived into a shallow lake sustaining serious injuries when he struck his head. A sign by the lake read “Dangerous Water. No Swimming”. It was not denied that the claimant had ignored the sign thus becoming a trespasser rather than a visitor.

At first instance the claimant’s claim was dismissed. On appeal, however, it was held that the risk was one which the defendants might reasonably be expected to offer trespassers some protection. The failure of warning signs to curtail the extent to which the risk of injury was being run led to the conclusion that the defendant owed the claimant a duty of care. The posing of notices (shown to be ineffective) was not sufficient to discharge this duty.

The House of Lords reversed this decision. In the same reasoning as Siddorn it was held that there was no risk to the claimant from the state of the premises or from anything done or omitted to be done on the premises and the defendant owned no duty of care under the Occupiers Liability Act 1984. The risk of the claimant striking his head on the bottom of the lake arose from a natural feature of the lake. The characteristics of the lake were obvious to the claimant and he did not need to be warned about obvious risks.

The approach taken does not significantly alter when a minor is involved.

In Keown v Coventry Healthcare NHS Trust [2006] EWCA Civ 39 the defendant appealed against the County Court decision that it was liable for the personal injuries suffered by the claimant. The claimant, who was 11 at the time of the accident, had been climbing the underside of a fire escape when he fell and suffered injuries. The fire escape was in part of the hospital grounds used by the public as a means of going between the streets on the other side. At first instance the District Judge held that there existed a danger due to the state of the premises within the Occupiers’ Liability Act 1984 and as such the defendant was liable.

On appeal it was noted that applying previous authorities would have found in favour of the defendant if the claimant was an adult. Premises that were not dangerous from the point of view of an adult could be dangerous for a child and whether they were was a question of fact and degree. The trial judge had found that the claimant did not only appreciate that what he was doing was dangerous, but that there was a risk of falling. In the circumstances it could not be said that the claimant had suffered injury by any reason of danger due to the state of the premises and, consequently, the threshold requirements of s1 OLA 1984 were not met. The defendant’s appeal was allowed.

The law of negligence

It is worth remembering that in reaching their judgments the judiciary are merely applying the established laws of negligence. In order to be successful in a claim for negligence the burden of proof is on the claimant to prove three things:

a) the defendant owed him a duty of care and

b) the defendant breached the duty of care and

c) the breach of duty of care caused damage to the claimant.

S1 Compensation Act 2006 notes that when considering what standard of care is reasonable in a claim for negligence the courts can take into account whether requiring particular steps to be taken to meet the standard of care would prevent or impede a desirable activity from taking place. The aim of this section was to help ensure that normal activities are not prevented because of the fear of litigation and excessively risk adverse behaviour. 1

Conclusion

It would appear that, despite their headline grabbing status, the cases of Cole and Siddorn have not altered the law in any way. Previous authorities illustrate that the approach taken by the courts is not is not to compensate in situations where the claimant cannot establish liability and, in reaching these decisions, the judiciary are merely applying the established principles of the law of negligence.

Returning to the original question it would appear that the judgments, whilst extremely useful for defendant practitioners, are, in fact, just old news.