Beech v Speare

An occupier’s liability for a low fence depends on whether, in its setting, it falls below the standard of reasonable care. A low boundary fence is not inherently actionable merely because it could be tripped over. Its position, conspicuousness and whether it presents an unusual hazard requiring warning or other precaution are material. Where a visitor knows of a fence in an anticipated position and fails to notice it through momentary inattention, the accident may be attributed to the visitor rather than the occupier. On these facts, the fence did not constitute a breach of duty.

The claimant was injured when she tripped over a low chain-link fence surrounding the defendant church’s car park. Liability was tried as a preliminary issue in the Manchester County Court. Mr Recorder Storey QC found that the fence was an inconspicuous tripping hazard, entered judgment for the claimant, and rejected contributory negligence.

The trustees appealed. The central issue was whether the fence, having been placed at an expected boundary position and known to the claimant, represented a failure by the occupier to take reasonable care.

Kay LJ gave the first judgment. Schiemann LJ agreed. The appeal was allowed, the recorder’s order was set aside, and judgment was entered for the defendant.

1. The question whether a low fence constitutes a dangerous state of premises must be determined in context. Relevant considerations include its location, whether visitors would anticipate it, its visibility, and whether its characteristics make it an unusual tripping hazard requiring a warning or other precaution.
2. The mere fact that a low fence may be tripped over does not establish a breach of the occupier’s duty. A fence in an unexpected position may require clearer warnings or precautions, but a boundary fence in the place where one would reasonably expect to find it is materially different.
3. The claimant was familiar with the car park and knew, or must have known, of the fence. The fence was not so out of the ordinary or inconspicuous that its presence departed from the standard of reasonable care expected of the occupier. Its posts were low and the chain was rusty, but those features did not alter that conclusion.
4. The accident was caused by the claimant’s failure to notice a known fence while momentarily concentrating on her child. The recorder’s conclusion that the fence was so dangerous that it should not have been present was not properly open on the facts.

1. Court of Appeal (Civil Division) — In [2001] EWCA Civ 1164, the appeal was allowed and judgment was entered for the defendant.
2. Manchester County Court — Mr Recorder Storey QC found the trustees liable on the preliminary issue of liability and entered judgment for the claimant, with damages to be assessed.