Lancashire County Council & Anor v Burke

Under Occupiers' Liability Act 1957, section 2(2), an occupier's duty is to take reasonable care in all the circumstances to keep visitors reasonably safe. The duty is not absolute. Liability does not follow merely because an accident reveals a danger with hindsight. The relevant question is whether, before the event, a reasonably careful occupier would regard the occurrence and likely injury as sufficiently probable to require precautions. Where the risk is obvious to adult users, the chance of occurrence and serious injury is very low, and a warning would add nothing, reasonable care may not require instructions or warnings.

Jane Deborah Burke, an adult student at Blackpool and Fylde College, was injured when a stack of chairs overturned in a classroom. The chairs had been stacked by students, and the trial judge found that incorrect stacking could cause spontaneous collapse.

At a liability trial in Preston County Court, His Honour Judge Appleton held that the defendants were negligent and in breach of their duty as occupiers because they had failed to warn students how to stack the chairs and of the consequences of incorrect stacking. The Court of Appeal granted permission on the confined question whether the duty required such instructions or warning.

Lord Justice Waller delivered the judgment of the court, and the appeal was allowed.

1. Nature of the duty. Liability could arise under section 2(2) of the Occupiers' Liability Act 1957 or the corresponding duty in negligence. The statutory duty requires reasonable care in all the circumstances to see that a visitor is reasonably safe for the purpose for which the visitor is on the premises. It is not an absolute guarantee of safety.
2. Assessment without hindsight. The fact that an accident has occurred may make a danger apparent retrospectively. It does not establish that the danger was sufficiently foreseeable, or that reasonable precautions were required, when the situation was viewed prospectively. The court relied on the observations in Bolton v Stone [1951] AC 850 that foreseeability alone is insufficient and that reasonable people do not take precautions against every foreseeable risk.
3. Failure to warn. The relevant inquiry was whether a reasonably careful member of college staff would have regarded as likely the chain of events comprising inappropriate stacking, spontaneous collapse, injury of sufficient seriousness, and a warning making any practical difference. The court concluded that none of those matters would have been regarded as likely. The correct method of stacking was obvious, the risk of collapse was only conceivable, any likely injury would ordinarily be minor, and the claimant's serious knee injury was highly unlikely.
4. Disposition. A warning to adult students which merely stated the obvious would not have been required by reasonable care. The defendants were therefore not liable either in negligence or under the statutory duty. The respondent was ordered to pay the defendants' costs of the appeal and below, with an interim payment of £10,000 plus interest within 14 days. Permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): In [2001] EWCA Civ 1679, the appeal was allowed. The court held that the defendants were not liable in negligence or under section 2(2) of the Occupiers' Liability Act 1957.
• Preston County Court: His Honour Judge Appleton gave judgment for the claimant at the liability trial, holding that the defendants should have instructed students on the correct method of stacking the chairs and warned of the consequences of incorrect stacking.