Case No: B3/2015/1499
Neutral Citation Number: [2016] EWCA Civ 1094
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BRIGHTON COUNTY COURT
HIS HONOUR JUDGE COLTART
3YK59972
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 09/11/2016
Before :

LADY JUSTICE HALLETT

and

LORD JUSTICE ELIAS

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Between :

	DEAN AND CHAPTER OF ROCHESTER CATHEDRAL	Appellant	
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	MR LEONARD DEBELL	Respondent	

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Mr Ronald Walker QC (instructed by Plexus Law) for the Appellant
Mr David Pittaway QC and Mr Robert Percival (instructed by Davis, Simmonds 
& Donaghey) for the Respondent

Hearing date : 25 October 2016

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Judgment
Lord Justice Elias:

1.	This is an appeal against the finding of liability for negligence made by HH Judge Coltart in the Lewes County court on 14 April 2015.  The respondent, whom I shall call the claimant as he was below, was injured when he was walking within the precincts of Rochester Cathedral on 9 June 2010.  He said that he had tripped and fallen over a small lump of concrete protruding from the base of a traffic bollard. The judge found for the claimant and awarded damages of some £21,597.00, after a 20% reduction for contributory fault. The damages finding is not challenged if, contrary to the Cathedral’s submissions, the finding of liability is sustainable.
2.	The judge described the circumstances of the accident as follows: 
“I find that on 9th June 2010 the claimant and his wife had parked their car in Minor Canon Row in Rochester and were walking through the cathedral precincts to get to the High Street where they were meeting friends for lunch. The route they took, took them up College Yard. It is a route that they had used on a number of occasions before, this meeting with friends for lunch being a fairly regular occurrence for them at the time, happening perhaps as often as once a month. As they got to a point in College Yard, Mrs Debell was in front of her husband and they both went through or attempted to go through a gap between a low wall with a coping stone on top of it and a bollard. [The judge then referred to certain photographs showing the path taken and the positioning of the bollard]. As I say, Mrs Debell went through the gap, her husband unfortunately tripped on something and fell injuring his shoulder and bringing on a hernia.”
3.	The bollard in question was one of two bollards placed at the end of a road with a linked chain between them designed to prevent traffic from entering the road. It was because the road was blocked that pedestrians had to enter via the relatively narrow gap between the wall and the bollard which was about two feet wide.
4.	The judge referred to certain photographs which showed that the concrete was broken and fragmented and had been in part lifted out of the road surface.  The largest piece was raised about one inch above the surface. (A photograph showed that it was the diameter of a ten pence piece.) It was still attached to the base of the bollard and protruded into the gap by about two inches.
5.	The judge referred to the fact that although the Cathedral did their best to prevent cars parking in the area, cars were so parked and occasionally a car would hit a bollard knocking it out of the vertical and causing the concrete on which it was embedded to rise and fracture, as in this case. The presence of cars also meant that pedestrians were often required to walk between the cars which might cause them to approach the two feet gap at an angle. As the judge found, that was what the claimant did here. The judge considered that the fact that the gap was narrow made it “all the more important that it is not in any way obstructed in a way that causes a danger”.
6.	He then went on to consider whether the Cathedral was liable for the injury and concluded that it was. He summarised his reasons as follows: 
“So I ask myself the question, did the state of the concrete give rise to the   foreseeable risk of causing injury to a passer-by? In the particular circumstances of this case I find that this piece of concrete did give rise to a foreseeable risk of causing injury to somebody walking in the way that Mr Debell was. In order to negotiate this narrow gap, this piece of concrete, albeit in itself only an inch high and perhaps protruding by no more than twice that amount  it was in this case foreseeable that somebody would trip on this particular piece of concrete and so I find that liability has been established in this case. ”
The law 
7.	Section 1 of the Occupiers’ Liability Act 1957 states that an occupier of premises owes a common law duty of care to all his visitors (save for certain immaterial exceptions not applicable here). The common law duty of care is then defined by section 2 as follows:
“The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.”
This duty includes an obligation on an occupier of premises to take steps to remove dangers which have materialised, even though the occupier did not cause them. In this case the damage to the bollard was caused by a visitor’s car, but if the damaged bollard was a danger to a visitor on the premises so as to render the premises not reasonably safe, there would be a duty of care to eliminate the danger and make it safe. 
8.	When does inaction constitute a breach of the duty of care? There are a number of factors which, depending on the circumstances, may be material when determining that issue.  They may include the likelihood of the risk of injury; whether there was a system in place to identify the danger so that it could be removed speedily; and the difficulty and cost of removing the danger. The overriding question is whether the visitor will be reasonably safe in using the premises.
9.	This particular accident in this case involved a pedestrian using a footpath. Tripping, slipping and falling are everyday occurrences on the roads and pavements. No highway authority or occupier of premises like the Cathedral in this case could possibly ensure that the roads or the precincts around a building were maintained in a pristine state. Even if they were, accidents would still happen; it is part of the human condition.  There will always be some weathering and wearing away of roads, pavements and paths resulting in small divots, slopes or broken edges which might provide some kind of risk to the unwary and lead to accidents. The law does not seek to make the highway authority or the occupier of land automatically liable for injuries caused by such accidents. The obligation on the occupier is to make the land reasonably safe for visitors, not to guarantee their safety. 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. 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.
10.	These points were brought out by the decision of the Court of Appeal in Mills v Barnsley Metropolitan Borough Council [1992] 1 P.I.Q.R P291. The appellant claimed that she had been injured as a result of catching her heel in a small hole in the road. The road consisted of paved slabs interspersed with paving bricks. One of the bricks had broken off leaving a hole which was two inches across at its widest and one and a quarter inches deep.  The case was brought under the Highways Act 1980. By section 41 the authority is under a duty to maintain the highway. The authorities, including the judgment of Steyn LJ in Mills itself, establish that the failure to maintain is only established where there is a danger to traffic or pedestrians in the sense that danger may reasonably have been anticipated from its continued use by the public. Counsel accepted that essentially the same test should be applied in the circumstances of this case under section 2 the 1957 Act.  
11.	The critical question is when danger can reasonably be said to have been anticipated. The Court of Appeal (Dillon and Steyn LJJ) considered this question in Mills and overturned a finding of liability made by the county court judge. Lord Justice Steyn gave a judgment in which he said this:
“…The short point is whether the judge was right in these circumstances in regarding this as a danger to women. Like the judge, I do not consider that it would be right to say that a depression of less than one inch will never be dangerous but one above will always be dangerous. Such mechanical jurisprudence is not to be encouraged. All that one can say is that the test of dangerousness is one of reasonable foresight of harm to users of the highway, and that each case will turn on its own facts. Here the photographs are particularly helpful. In my judgment the photographs reveal a wholly unremarkable scene. Indeed, it could be said that the layout of the slabs and the paving bricks appears to be excellent, and that the missing corner of the brick is less significant than the irregularities and depressions which are a feature of streets in towns and cities up and down the country. In the same way as the public must expect minor obstructions on roads, such as cobblestones, cats eyes and pedestrian crossing studs, and so forth, the public must expect minor depressions. Not surprisingly, there was no evidence of any other tripping accident at this particular place although thousands of pedestrians probably passed along that part of the pavement while the corner of the brick was missing. Nor is there any evidence of any complaint before or after the accident about that part of the pavement. Like Mr Booth, I regard the missing corner of the paving brick as a minor defect. The fact that Mrs Mills fell must either have been caused by her inattention while passing over an uneven surface or by misfortune and for present purposes it does not matter what precisely the cause is.
Finally, I add that, in drawing the inference of dangerousness in this case, the judge impliedly set a standard which, if generally used in the thousands of tripping cases which come before the courts every year, would impose an unreasonable burden upon highway authorities in respect of minor depressions and holes in streets which in a less than perfect world the public must simply regard as a fact of life. It is important that our tort law should not impose unreasonably high standards, otherwise scarce resources would be diverted from situations where maintenance and repair of the highways is more urgently needed. This branch of the law of tort ought to represent a sensible balance or compromise between private and public interest. The judge’s ruling in this case, if allowed to stand, would tilt the balance too far in favour of the woman who was unfortunately injured in this case. The risk was of a low order and the cost of remedying such minor defects all over the country would be enormous. In my judgment the plaintiff’s claim fails on this first point.
  Lord Justice Dillon agreed and made essentially the same point in the following succinct terms:
“The liability is not to ensure a bowling green which is entirely free from all irregularities or changes in level at all. The question is whether a reasonable person would regard it as presenting a real source of danger. Obviously, in theory any irregularity, any hollow or any protrusion may cause danger, but that is not the standard that is required.”

12.	It is important to emphasise, therefore, that although the test is put by Steyn LJ in terms of reasonable foreseeability of harm, this does not mean that any foreseeable risk is sufficient.  The state of affairs may pose a risk which is more than fanciful and yet does not attract liability if the danger is not eliminated. The observations of Lloyd LJ in James v Preseli Pembrokeshire District Council  [1993] P.I.Q.R. P114, a case which applied the test in Mills, are pertinent:
“In one sense, it is reasonably foreseeable that any defect in the highway, however slight, may cause an injury. But that is not the test of what is meant by ‘dangerous’ in this context. It must be the sort of danger which an authority may reasonably be expected to guard against.”
13.	Lord Justice Ralph Gibson to similar effect noted that the test of foresight of harm is liable to result in too onerous a standard of care:
“… it has been established by the decisions of this court that the standard of care imposed by the law upon highway authorities is not to remove or repair all and any defects arising from failure to maintain, such as differences in level or gaps between paving stones, which might foreseeably cause a person using the carriageway or footpath to fall and suffer injury, but only those which are properly to be characterised as causing danger to pedestrians. There is, I think, an apparent element of circularity in some of the formulations of duty or breach of duty which have been advanced. Thus the test of dangerousness is one of reasonable foresight of harm to users of the highway.

But in drawing the inference of dangerousness the court must not set too high a standard. Any defect, if its uncorrected presence is to impose a liability, must therefore be such that failure to repair shows a breach of duty….” 
14.	These cases were relied upon in Brett v London Borough of Lewisham (20 December 1999) by Chadwick LJ and in Jones v Rhondda Cynon Taff CBC [2008] EWCA Civ 1497; [2009] R.T.R.13 paras 11-12 per Laws LJ.
15.	We were referred to the decision of Eady J in Galloway v London Borough of Richmond Upon Thames (20 Feb 2003) in which he said that Mills had adopted a two stage test for determining whether an un-remedied state of affairs constituted a breach of duty, namely whether there was foreseeability of harm and, as a second stage, whether a reasonable person would regard it as presenting a real source of danger. I can see why he may have been tempted by this approach because grounding the test in foreseeability of harm alone is open to misinterpretation and risks setting the standard too low. But I agree with Mr Pittaway QC, counsel for the claimant, that Mills did not intend to lay down a two stage test; the judges were in my view seeking to express the same test in different ways. The authorities suggest that ultimately it is the test of reasonable foreseeability but recognising the particular meaning which that concept has in this context. The risk is reasonably foreseeable only where there is a real source of danger which a reasonable person would recognise as obliging the occupier to take remedial action. A visitor is reasonably safe notwithstanding that there may be visible minor defects on the road which carry a foreseeable risk of causing an accident and injury.
16.	In the end it is an exercise of judgment for the trial judge whether the danger is sufficiently serious to require the occupier to take steps to eliminate it. Provided the judge has properly directed himself, this court can only interfere if he has reached a judgment which a reasonable judge could not properly reach on the evidence.
The grounds of appeal
17.	The grounds of appeal pursued orally before the court were narrower than those foreshadowed in the skeleton argument. There were three grounds which were either not advanced at all or were simply floated more in hope than expectation.
18.	First, Mr Walker QC, counsel for the Cathedral, suggested that evidence adduced before the judge did not support the conclusion that the accident was caused by the piece of concrete.  The principal basis of this submission was that in answer to a question posed in cross-examination the claimant accepted that it was equally possible that the bollard, lug (base of the bollard) or the piece of concrete could have caused the claimant to trip. It is said that in the light of that answer, it was impossible for the judge to conclude, as he did, that “the most likely cause of the trip was the piece of concrete.” In my judgment this ground is wholly without substance. The judge did in fact refer in terms to the answer given in cross examination but he was not obliged to take that answer as decisive of causation and he did not do so. It was only part of the evidence and was not consistent with what the claimant had said up to that point; moreover he subsequently resiled from that answer in re-examination. Quite apart from that, it is virtually impossible to trip over the bollard itself so it was obviously wrong for the claimant to say that this was a realistic cause of his tripping let alone as likely a cause as the concrete. It is also unlikely that the narrow lug, which barely protruded from the bollard itself, would have been the cause. The finding of causation was a matter for the judge and in my view he reached an obvious and common sense conclusion displaying no conceivable error of law.
19.	Second, it is said that judge applied an inconsistent duty of care because he stated in the course of his judgment that whether the bollard was a potential danger required consideration of its location and dimensions.  The submission is that either the bollard with the protruding concrete was unsafe or it was not. If it was safe in one place it could not be unsafe in another.  That is not correct as a matter of law. The likelihood or foreseeability of harm may well depend upon the use made of the road where the accident occurred. An example was given by Lawton LJ in Rider v Rider [1973] 1 Q.B.506, p.518 when he observed that “a stretch of uneven paving outside a factory probably would not be a danger for traffic, but a similar stretch outside an old people’s home and much used by the inmates to the knowledge of the highway authority, might be.”
20.	Third, an argument advanced in the skeleton argument was that the decision on contributory negligence ran counter to the judge’s findings on liability. The judge made these observations when fixing the level of contributory fault at 20%: 
“ … it seems to me that there is an element of negligence on the part of Mr Debell for not having taken sufficient care to see where he was walking through a narrow gap and noting the presence of what, had he looked, would have been reasonably obvious and sufficiently obvious for him to have taken precautions to avoid it.”
21.	It is asserted that since Mr Debell did not see the piece of concrete this supports the proposition that it was too small to pose a foreseeable risk.  I do not accept that submission. It fails to recognise that the duty of care is not only for the careful pedestrian but also the inattentive or careless one who may well not notice a hazard in the road. Every finding of contributory fault involves a recognition that the accident occurred because of some fault on both sides, a typical state of affairs in these cases.  The fact that the claimant should have taken greater care to identify the risk and thereby avoid the accident is not remotely inconsistent with a finding that the Cathedral authorities ought to have taken reasonable care to eliminate the risk.  
The misdirection
22.	Mr Walker’s principal argument was that the judge misdirected himself as to the standard to be applied. The judge wrongly assumed that foreseeability of harm was enough without properly applying that concept. He made no reference to the need to strike a balance between the private right and the cost to the Cathedral of removing the risk. On the facts it was not legitimate to infer that there had been a breach of the duty of care. When account was taken of the size of the piece of concrete, the chances of someone walking so near to the bollard so as to risk the possibility of tripping, and the lack of any evidence that anyone has suffered this kind of accident either before or since, it was not in the realms of foreseeability that the accident would occur. Indeed, it was no more than what counsel described as “a fantastic possibility”. It did not satisfy even a narrow foreseeability test.
23.	Mr Pittaway submits that the judge applied the foreseeability test which Steyn L.J. stated in Mills was the proper test, and he gave cogent reasons for concluding that the accident was foreseeable in the circumstances of the case. This was a conclusion well within the area of judgment properly left to the judge and there is no basis for saying that his decision was wrong.
Discussion
24.	In terms of the direction which the judge gave himself at para.11 of his judgment, at one level it can be said that the judge applied precisely what Steyn LJ said was the test in Mills. (In fact the judge said “foreseeable” rather than “reasonably foreseeable” but it seems clear that he meant the latter and Mr Walker did not suggest otherwise.).  But for reasons I have given, the mere formulation of the test in those terms is not enough unless the judge appreciates how the reasonable foreseeability test it is to be applied in the context of accident cases of this nature. I do not accept Mr Walker’s submission that the risk of an accident was a fantastic possibility; in my view it was foreseeable in the same way that accidents resulting from other blemishes in the highway, such as the hole in Mills, which was in fact similar in size to the piece of concrete in this case, are foreseeable. Nor do I accept that the judge was obliged in terms to address the balance between the rights of the claimant and the cost to the Cathedral of eliminating the risk. That is factored into what might be termed the heightened foreseeability test which the courts have applied in this context. It is not in fact the cost of removing the particular danger, which may not have been particularly expensive (although we had no evidence about that) but the cost in terms of time and money of having to identify and remedy faults of this nature.
25.	However, I do accept Mr Walker’s submission that the judge did not apply the foreseeability test in the appropriate way and that this amounts to a misdirection.  There is no recognition in the judgment that not all foreseeable risks give rise to the duty to take remedial action. The judge had to apply the concept of reasonable foreseeability taking a practical and realistic approach to the kind of dangers which the Cathedral were obliged to remedy. Had he done that, I do not think that he could have reached the decision he did.  The judge’s recital of the foreseeability mantra does not take the claimant far enough. 
26.	The question for the judge was whether the piece of concrete created a danger of a kind which the Cathedral authorities were required to address.  Was it something more than the everyday risk which pedestrians inevitably face from normal blemishes? I recognise that the risk resulted not from the normal wear and tear but from the negligent act of the driver hitting the bollard. But that does not affect the question whether the nature of the risk was such as to create “a real source of danger”, to use the words of Dillon LJ in Mills. I do not believe that it was open to the judge to find that it was, essentially for the reasons advanced by Mr Walker. This was an extremely small piece of concrete which could not be said to pose a real danger to pedestrians.  It would be very unlikely that a pedestrian would walk so close to the bollard even approaching it at an angle, or that he would injure himself if he did.  Accordingly, even if, contrary to my view, the judge did apply the right test, then in my judgment his conclusion was not open to him.
For these reasons, I would uphold the appeal. This was a most unfortunate accident but not one for which the Cathedral should be liable. 
Lady Justice Hallett:
27.	I am indebted to Elias L.J. for his succinct and careful analysis. I agree.