Robinson v (1) North Yorkshire County Council and (2) Richmondshire District Council

This is an interesting case where BLM acted for the successful second defendant. Here, the court considered the issue of foreseeability and whether there is any requirement to guard against obvious risks even if the risk could result in serious injury occurring.

The facts

On 31 March 2012, the claimant went by coach with a group of friends to Doncaster Races for his brother’s stag party.

The claimant’s evidence was that following the day out with his group of friends, the coach called in at Richmond on the way home and the claimant, along with the rest of the stag party, purchased and drank more alcohol. The claimant alleged that towards the end of the night the coach was no longer parked where he had alighted so he went to look for it.

The claimant walked along Millgate, which led into a short cul-de-sac called Castle Terrace, which went past a few houses before reaching a footpath around the castle.

On the left hand side of Castle Terrace there was a railing along part of the retaining wall. The railing had been installed by the first defendant. Approximately six feet from the end of the railing there were some steps leading from Castle Terrace to an unfenced pathway along the top of the retaining wall down Millgate. The second defendant owned these steps and the unfenced pathway, which had been in situ for over 100 years as evidenced by historic photographs.

The claimant alleged that as he was walking along Castle Terrace with his left hand on the railing, he failed to appreciate that the railing stopped and he fell approximately 2.5 metres into Millgate sustaining severe spinal injuries.

Allegations

The claimant brought a claim against the first defendant alleging that they had created a trap by erecting a railing that finished alongside a 2.5 metre drop. It was submitted that members of the public who did not know the area or required support could follow the railing and then go off the edge if they did not know that the railing finished. The claimant argued that it would not have cost much for a railing to have been fitted to all of the retaining wall and a sensible risk assessment would have identified this high risk of injury.

The claimant pursued the second defendant on the basis that they failed to co-operate with the first defendant in order to enable a fence to be installed on the pathway. It was argued that both the steps and the pathway were unsafe and should have been closed off to members of the public, particularly as there was no fencing.

Decision

HHJ Gargan concluded that the claimant’s behaviour had been significantly affected by the amount of alcohol that he had consumed that day. It was found that there was sufficient street lighting and members of the public could reasonably see where the railing ended and that there was a drop. It was held that the claimant had not realised that the railing ended because he was extremely drunk and had been relying on the railing for guidance and to keep him upright.

It was also noted that no concerns had been raised about the lack of fencing and there had been no previous accidents of this nature.

HHJ Gargan dismissed the claim against the first defendant on the basis that there was an obvious drop of approximately 2.5 metres which was easily identifiable. Also it was concluded that the railing was not a trap or enticement because there was no serious risk of injury because the drop was obvious and so was the end point of the railing.

The claim was dismissed against the second defendant on the basis that they were neither the highway authority nor the occupier of the land where the claimant had fallen. HHJ Gargan held that it was not fair, just and reasonable to extend a duty of care at common law to the second defendant.

It was concluded that although the second defendant was the owner of the land, which the steps ran over, this was not enough to create a duty of care. It was held that the second defendant was not under an obligation to make a positive offer to stop up the steps and to encourage the first defendant to build a fence on the highway, when they were not responsible for the land.

HHJ Gargan also concluded that any duty of care owed could not be more extensive than the duty that an occupier would owe to visitors. It was held that even if the second defendant had been the occupier, there was not a sufficiently significant risk of injury for breach of duty to be established under the Occupiers’ Liability Act 1957.

As a result, the claim was dismissed against both defendants.

It is interesting to note that if the claimant had been successful then contributory negligence would have been assessed at 85%. HHJ Gargan stated that due to alcohol the claimant “… had rendered himself unable to appreciate the ordinary features of his surrounding environment … and that is why he did not see the drop at the end of the fence.

What this means for you

This case shows that just because there is a risk that serious injury could occur does not mean that the risk is sufficiently foreseeable to warrant it being guarded against. In this case, the second defendant was correctly found to not be the occupier of the land where the claimant had fallen. Also, the court made clear that had they been the occupier then liability would not have attached because the danger was obvious and the railing was not a trap or an enticement.

The court applied the principles in Edwards v London Borough of Sutton [2016] EWCA Civ 1005 and Tomlinson v Congleton BC [2003] UKHL 47, in respect of landowners not being under a duty to protect or even to warn against obvious dangers. Here, it was seen that the drop was an obvious danger both during the day and during the night, which the claimant ought to have been aware of.

In this case, the claimant was extremely drunk when the accident occurred and was heavily reliant on the railing to offer him support and assistance. Also, the railing did not run along the complete length of the retaining wall but it was not defective and/or in a state of disrepair.