Cotton v Derbyshire Dales District Council

Under section 2(2) of the Occupiers Liability Act 1957, an occupier must take such care as is reasonable in all the circumstances to make a permitted visitor reasonably safe. The duty does not ordinarily require warning of a danger which, when encountered, is obvious. Where a visitor mistakenly takes an apparent path, the critical question is whether the visitor would recognise the error and retreat before reaching danger. A warning or fence is unnecessary where the evidence supports that conclusion. An appellate court will not readily disturb such a factual finding when it is based on expert evidence and the trial judge’s inspection of the site.

The appellant was seriously injured after falling from a cliff while walking with friends on High Tor, land belonging to the respondent district council. The group mistakenly followed an apparent path down steep and unstable terrain. The High Court, before Mr Justice Owen, found that they would have realised that the route was not a path and could have stopped safely before reaching the cliff. The claim was dismissed.

On appeal, the appellant argued that a warning notice should have been placed at the northern entrance and that the trial judge was wrong to find that the cliff was not a trap and that danger would have become apparent in time. The central issue was whether the council had breached its common duty of care.

Unanimous decision. Henry LJ gave the leading judgment. Russell LJ and Nourse LJ agreed. The appeal was dismissed, with legal aid taxation granted.

1. The applicable duty was the common duty under section 2(2) of the Occupiers Liability Act 1957: reasonable care in all the circumstances to ensure that a permitted visitor was reasonably safe using the premises for the permitted purpose.
2. Compliance required consideration of the likely visitor, what that visitor would appreciate about the height and terrain, whether the visitor would keep to paths, and whether an apparent path would lead to danger before the visitor recognised that it was not a path.
3. The trial judge’s crucial finding was that a person who mistakenly began down the apparent path would soon appreciate that it was not a path and would be able to stop or climb back before reaching a position of danger. That finding was based partly on the surveyor’s evidence and partly on the judge’s own view of the terrain. It was therefore not readily susceptible to challenge on appeal.
4. The proposed warning would not have shown that the apparent route was not a path. Any warning that cliffs existed in the neighbourhood would add little, since the steep terrain and danger of proceeding down the unstable slope would have been obvious once the mistake was recognised.
5. The court applied the principle stated by Lord Shaw in Glasgow Corporation v Taylor [1922] 1 AC 44 at 60, that the duty to make public grounds reasonably safe does not include protection against dangers which are themselves obvious. The absence of a trap in the British Railways Board v Herrington sense was not treated as a substitute for the statutory inquiry, but the decisive finding was that no warning or fence was reasonably required. The council was not in breach.

1. Court of Appeal (Civil Division) [1994] EWCA Civ 17: dismissed the appeal unanimously and granted legal aid taxation.
2. High Court of Justice, Queen’s Bench Division (Mr Justice Owen): dismissed the appellant’s claim after finding that the council was not in breach of its occupiers’ duty.