Cole v Davis-Gilbert – desirable activities

[2007] EWCA Civ 396

In 2001 the claimant broke her leg after falling into a hole on a village green created by a maypole. She sued the Royal British Legion (RBL) who had organised the fete when the maypole had last been used in 1999. Even though he accepted that the hole had been filled in after the fete, the judge found RBL liable. This decision was reversed by the Court of Appeal. There was no evidence as to how it had opened up again although the court presumed that children were to blame. The judge had not considered whether any inadequate infilling of the hole was causative of the claimant's accident. The true cause of the accident was the removal by some unidentified person of the plug applied after the fete in 1999 and causation was not established against RBL.

Comment: this is a straightforward case in which it was clear that neither negligence nor causation had been proved against RBL. It has nonetheless attracted attention because of the spirit of the judgments, in which the Court of Appeal extolled the virtues of village life. Section 1 of the Compensation Act was not mentioned by the court nor whether maypole dancing is a “desirable activity”, but the tone of the decision provides a foretaste of the approach the courts are likely to take when determining whether an allegedly negligent defendant should have taken particular steps to meet a standard of care. When deciding what is a “desirable activity” we can assume that Court of Appeal judges are likely to share John Major’s hope that "fifty years on from now, Britain will still be the country of long shadows on county cricket grounds, warm beer, invincible green suburbs, dog lovers, pools fillers and old maids bicycling to Holy Communion through the morning mist".