Judging the liability

In Cole v Davies-Gilbert & Ors, the Court of Appeal sent out a clear meassage about what constitutes an accident, giving ammunition to insurers to repudiate liability. The claim arose from an accident that occurred in April 2001 when the claimant went to the village of East Dean in Sussex with her husband and friend to enjoy a drink at the village pub.

The Tiger Inn is situated to one side of the green in the heart of the village.

The green is owned by the local estate but it had been registered as a village green in 1970 on the basis that the local residents had customarily used it for sports and pastimes. In other words, it was a traditional village green.

In common with many village greens up and down the country, local pastimes included the holding of fetes, hunt meetings and other village activities such as carol singing at Christmas.

The claimant was not within the class of people who were entitled as of right to use the green for local sports and pastimes as she lived outside the village and was not a local resident.

As the claimant was crossing the village green, she placed her foot in a hole which had previously been used to house the maypole at a village fete.

Unfortunately, the claimant broke her leg as a result. Evidence was heard at trial that the maypole had last been used at the fete held in 1999, nearly two years prior to the accident.

Following the fete, the hole was filled with soil and stones and subsequently with a wooden bung. However, at some point between 1999 and 2001 the hole became exposed thereby creating a hazard.

It seemed likely that the hole had only become exposed shortly before the accident as the green had been used on numerous occasions during this period.

Organisers' liability
The trial judge found the British Legion liable for the claimant's injury as they were the organisers of the 1999 village fete. He found that it had breached its duty of care to the claimant as it had not taken adequate steps to ensure that the hole had been filled in properly at the conclusion of the fete.

However, in relation to the local estate, the trial judge held that although it was an occupier of the green for the purposes of the Occupiers Liability Acts of 1957 and 1984, it was not in breach of its statutory duty of care as it could reasonably have assumed that the British Legion would take the necessary steps to seal the maypole hole.

The British Legion appealed on the basis that the judge's finding of fact that the claimant sustained injury by stepping into the maypole hole was perverse and entirely inconsistent with the evidence. It also contended that the judge was wrong to find as a matter of fact that the British Legion had taken no or no adequate steps to fill in the maypole hole after the 1999 fete.

The claimant appealed against the dismissal of the claim against the local estate under the Occupiers' Liability Act 1957. The estate app-ealed the judge's finding that it was a material occupier of the village green for the purposes of the Occupiers' Liability Acts of 1957 and 1984.

The Court of Appeal allowed the appeal brought by the British Legion against the findings of the trial judge, on the basis that there was no evidential support for the judge's conclusions that the British Legion had breached its duty of care to the claimant.

The evidence strongly suggested that the hole only became exposed shortly before the accident and there was no evidence as to how it became exposed.

Issue of causation
The trial judge had not considered the issue of causation. The cause of the accident was the removal of the infill, probably by children playing on the green.

The circumstances in which the hole became a hazard were not known and it was, therefore, not possible to establish that the accident was caused by the negligence of the British Legion.

The Court of Appeal dismissed the claimant's appeal and upheld the trial judge's finding that the local estate was not in breach of the Occupiers' Liability Acts of 1957 and 1984. The Court of Appeal considered that a finding to the contrary would have set the standard of care far too high and almost imposed strict liability upon the estate.

In view of its findings above, the Court of Appeal did not need to consider the estate's cross-appeal against the finding of the trial judge that it was an occupier of the village green. This was unfortunate in that it was perhaps one of the most interesting of the various legal arguments put before the Court of Appeal.

A prime indication of occupation is, of course, the ability to control entry into the premises concerned. It was argued on behalf of the estate that it was not in a position to control entry onto the village green, either by residents or by anyone else. If it sought to do so, it would be interfering with the rights of the parishioners of East Dean to use the village green.

Furthermore, it was submitted that the estate's inability to exercise the requisite degree of control over the green meant that it would be unfair or unreasonable to impose a common duty of care upon them in respect of persons who came onto the green.

It was submitted that as a matter of law, there was no occupier of the village green for the purposes of the 1957 or 1984 Acts.

It was also submitted as part of the estate's cross appeal that once a parcel of land becomes a village green, it is open to all members of the public to use as of right, for lawful sports or pastimes and this right is not limited to village residents.

Any other view would result in different duties being owed to residents of the village and visitors. It was argued that it would be an absurdity if strangers to the village had a claim under the Occupiers' Liability Act, either as a visitor or trespasser, but that in the same circumstances, the residents of the village had no such claim.

Such a distinction would, for example, result in a visiting cricket team, but not the home team, being owed a duty of care, or members of the home cricket team, who did not come from the village, being owed a duty when the village-based members were not.

It follows that once a parcel of land has become a village green through its customary use by local residents, the benefit gained is available to be enjoyed by the public as a whole.

As the claimant was using the green as of right, it was submitted that she was not a visitor for the purposes of the 1957 Act and no duty of care was owed by the estate pursuant to statute or at common law.

In this regard, the estate relied upon the House of Lords decision in McGeown v Northern Ireland Housing Executive (1994) which established the principle that persons who exercised public rights of way have no claim against the owner or occupier of the land over which they exercise those rights provided that the owner or occupier has not created the hazard that caused the injury.

In any event it was submitted that, put at its highest, the estate did no more than acquiesce in the use of the village green as a means of access to the Tiger Inn.

It is trite law that mere acquiescence in such use does not render the user a visitor or licencee of the land owner (R v Sunderland City Council ex parte Beresford (2003)).

Proper accidents
While the various submissions made in support of the estate's cross-appeal remain undecided, they do, in my view, demonstrate the basis upon which insurers of landowners should seek to repudiate liability in similar cases in the future.

The case of Cole v Davies-Gilbert & Ors was widely reported as being a blow to the compensation culture. It remains to be seen whether that is the case.

However, the Court of Appeal has sent out a clear message to the courts below, perhaps most tellingly through the dicta of Scott Baker LJ: "Accidents happen and sometimes they are what can only be described as 'proper accidents', in the sense that the victim cannot recover damages because fault cannot be established." IT

Huw Edwards is a partner in the Insurance Law Department at Langleys