Kincaid v Hartlepool Borough Council Northumbrian Water

An occupier’s common duty of care does not require every possible precaution against a transient danger on an open beach. The relevant question is whether reasonable precautions were required and practicable in the circumstances. Where a fixed structure and any resulting drop are generally visible, sand movement is unpredictable, fencing and routine inspection are impracticable or disproportionate, and warnings are unlikely to be effective, the occupier may have fulfilled the duty. The precise formation of a crevasse need not be foreseeable if the underlying drop is foreseeable. Failure to keep a proper lookout may alternatively justify a very high finding of contributory negligence.

The claimant injured his ankle after stepping from the sand-covered roof of a surface-water outfall onto lower sand on North Sands beach. He claimed damages against the two occupiers, who had agreed to share liability. His Honour Judge Meier dismissed the claim in the Milton Keynes County Court, finding the relevant formation of sand to be unpredictable. On appeal, the claimant argued that foreseeability of the drop, rather than foreseeability of the precise crevasse, was sufficient. The respondents relied on the absence of any reasonably necessary or effective warning system, and on contributory negligence.

1. Appeal dismissed. Lord Justice Henry delivered the judgment, and Lord Justice Kay agreed. The costs were to be taxed, with taxation postponed indefinitely, together with a legal aid assessment.
2. The judge below had treated the creation of the crevasse as the critical unforeseeable event. Lord Justice Henry accepted the force of the claimant’s argument that the relevant danger was the drop itself. If the appeal had stood alone, the court would have allowed it on that point. The respondent’s notice enabled the court to determine whether any breach existed on the evidence.
3. The outfalls were substantial and generally visible structures. Sand movement depended on recent waves, currents and wind, could occur on either side, and had produced the relevant configuration only rarely. Fencing the possible drop would have been impracticable and disproportionate. Daily inspection could not sensibly identify its changing location. Warnings would also have been difficult to communicate because the beach had several access points and no fixed route where a warning could be placed.
4. In those circumstances, the structure itself constituted a warning. The drop would have been unmistakable to a person keeping a proper lookout. The occupiers had therefore fulfilled their common duty of care under the Occupiers Liability Act. The accident was a pure accident and no fault could be attributed to the water companies.
5. Alternatively, if liability had been established, the claimant’s failure to keep a proper lookout would have warranted a very high apportionment of contributory negligence, assessed by reference to causative potency, blameworthiness, or both.

1. Court of Appeal (Civil Division): In [2000] EWCA Civ 390, the appeal was dismissed.
2. Milton Keynes County Court: His Honour Judge Meier dismissed the claimant’s claim for damages.