Court of Appeal clarifies "reasonable foreseeability test"

Article

31 January, 2017

Dean & Chapter Of Rochester Cathedral v Leonard Debell (2016)[2016] EWCA Civ 1094 CA (Civ Div) (Hallett LJ, Elias LJ) 09/11/2016

A cathedral appealed against a finding of liability after it was found liable in negligence for an injury sustained by a pedestrian who had tripped and fallen over a small piece of concrete protruding from the base of a traffic bollard whilst walking within the grounds.

At first instance, the judge concluded that the protruding concrete gave rise to the foreseeable risk of injury and therefore found the cathedral liable for the injury. The claimant was awarded damages of £20,597.

On appeal, the cathedral submitted that the judge had misdirected himself as to the standard to be applied. It argued that he had 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.

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, i.e. was it something more than an everyday risk which pedestrians inevitably faced from normal blemishes?

The Court concluded that the trial judge had misdirected himself and had failed to correctly apply the foreseeability test. It was an extremely small piece of concrete, and it was unlikely that a pedestrian would walk so close to the bollard. Counsel described the chance of an accident as a 'fantastic possibility'. Ultimately, the Court concluded it was an unfortunate incident but not one for which the cathedral should not be liable.

Forbes Comment

According to LJ Elias, 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. Just because a risk is foreseeable, it should not result in automatic liability. The duty is to ensure the reasonable safety of visitors, the risk must amount to more than the everyday risk from normal blemishes or defects common to any road or path.

LJ Elias continued to remark 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 Court was keen to stress that when considering the cost to the occupier, it is not just the cost of removing the particular danger, but consideration should also be given to the cost in terms of time and money of having to identify and remedy faults of this nature.

This is another favourable and common sense decision for defendants, and serves as a useful reminder that foreseeability alone is not enough to establish liability.

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