Staples v West Dorset District Council

Under the Occupiers Liability Act 1957, an occupier’s duty to warn is owed to the individual visitor. A warning is required only where, without it, that visitor would be unaware of the nature and extent of the danger. An adult of sound mind who recognises an obvious risk, is under no pressure and can take reasonable precautions ordinarily needs no warning. A post-accident warning does not itself establish that a warning was required beforehand. Causation also requires more than a bare possibility that a warning would have altered the visitor’s conduct.

The plaintiff slipped on the algae-affected surface of the Cobb, a harbour wall owned and occupied by the defendant council, and suffered serious injury. He later suffered further injury when he fell from a ladder, which the High Court found was caused by the first accident. Mr Justice Auld found negligence, breach of the common duty of care and causation, assessed contributory negligence at 40 per cent, and awarded damages.

The council appealed against the findings on liability and causation for both accidents. The central issues were whether this visitor needed a warning about the slippery surface and whether a warning would probably have prevented the first accident.

The Court of Appeal unanimously allowed the appeal. Lord Justice Kennedy delivered the leading judgment. Lord Justice Evans agreed entirely, and Lord Justice Nourse agreed with both judgments.

1. Under the Occupiers Liability Act 1957, the common duty of care is owed to the individual visitor. Whether a warning is required depends on all the circumstances and on what that visitor knew and appreciated. The plaintiff could see the slope, the unfenced drop, the wet surface and the algae. He expressly understood that the algae-affected stone was slippery and required extra care. He was an adult, was under no pressure and was free to protect himself. The danger was therefore obvious and appreciated, so no warning was required. The reasoning was consistent with the example given in Cotton v Derbyshire Dales District Council (C.A. 10.6.94, unreported).
2. The warning signs erected after the accident did not establish a pre-accident breach. After the accident the council knew that a visitor had slipped and responsibly sought to prevent recurrence, but that later action did not show that a warning had been required earlier.
3. Even if a warning had been displayed, the sign would have told the plaintiff nothing he did not already know. Causation required more than a bare possibility that he might have acted more carefully. The probability was that the warning would not have affected his conduct.
4. It was unnecessary to decide the challenge to contributory negligence. If the fourth ground had required determination, the court would not have interfered with the finding that the plaintiff acted reasonably when climbing the ladder during the second accident. That finding could not assist him because primary liability for the first accident failed. Lord Justice Evans additionally observed that a general algae-related danger was obvious and appreciated, while an isolated slippery patch had not been shown to be foreseeable.

The order was appeal allowed with costs here and below, subject to leave before enforcing costs up to and including the High Court judgment, together with a section 18 order against the legal aid fund for the appeal costs. The plaintiff’s contribution was nil.

• Court of Appeal (Civil Division): unanimously allowed the council’s appeal, with costs here and below and the stated order concerning the legal aid fund.
• High Court of Justice, Queen’s Bench Division: Mr Justice Auld found the council negligent and in breach of the common duty of care, found the first accident causative of the second, assessed contributory negligence at 40 per cent, and awarded damages.