On 9 November 2016 the Court of Appeal provided important clarification of the test to be applied when determining whether an occupier might be liable under the Occupiers’ Liability Act 1957.

Mr Debell had been using a road owned by Rochester Cathedral. Concrete bollards had been erected at the end of the road to prevent cars from entering it. However, a car had hit one of the bollards, partially knocking it over and in the process lifting the road surface next to the bollard by about one inch, which protruded into the two-foot gap between the bollard and a wall by about two inches. As Mr Debell walked through this gap, he tripped on the raised pavement, sustaining injury.

At trial, the judge decided that the Cathedral was liable for the accident, on the basis that it was foreseeable that someone would trip on the damaged surface. He thought that the narrow gap made it all the more important that it was not in any way obstructed in a way that caused a danger. He gave judgment in Mr Debell’s favour. The Cathedral appealed against this judgment on the basis that the judge had applied the foreseeability test incorrectly.

The Court of Appeal decided the Cathedral was not liable for the accident. It said that whilst the test of liability included foreseeability of the risk of an accident, this does not mean that any foreseeable risk is sufficient to establish liability. It said that there will always be some weathering and wearing of roads, pavements and paths resulting in small divots, slopes or broken edges which might cause some kind of risk to the unwary and lead to accidents. The Court said that although the hazard in this case arose from damage to the bollard, the obligation on the occupier is to make the land reasonably safe for visitors, and not to guarantee safety.

The Court of Appeal said that 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, and that 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.

The Appeal Court decided that the Claimant had tripped on an extremely small piece of concrete which could not be said to pose a real danger to pedestrians, and that it was very unlikely in this case that a pedestrian would walk so close to the bollard or sustain injury if he did.

This decision reiterates that when a judge considers whether the danger complained of is sufficiently serious to require an occupier to take steps to eliminate it, the judge must also take a practical and realistic approach to the kind of dangers an occupier is obliged to remedy.

Case: Dean & Chapter of Rochester Cathedral v Leonard Debell (2016) Court of Appeal [2016] EWCA Civ 1094 9/11/2016