Beaton v Devon County Council

The statutory common duty of care requires reasonable care in all the circumstances to make visitors reasonably safe for the permitted use of premises. It does not guarantee that accidents will not occur. A foreseeable possibility of injury, or a minor imperfection in a feature of premises, is not by itself a breach. The court must assess the actual risk in context, including the feature’s design and location, likely use of the premises, the history of safe use and whether an alleged defect caused the accident. Where the evidence shows only a minimal risk and inadequate lighting was not causative, liability is not established.

Mrs Beaton was injured when she stopped her bicycle on the Tarka Trail and put her foot down near a drainage gully in Landcross Tunnel. The gully contained a depression which was found to be approximately two-and-a-half inches deep or less. The tunnel was used by about 30,000 cyclists annually and had no relevant history of accidents or complaints.

Mr Recorder Greenwood, sitting at Barnstaple County Court on 19 March 2002, found Devon County Council liable. The Council appealed, arguing that the Recorder had applied an excessive standard of care under the Occupier's Liability Act 1957. The central issues were whether the gully, its maintenance or the tunnel lighting involved a breach of duty, and whether any alleged defect caused the accident.

1. Appeal allowed. Lord Justice Judge delivered the principal judgment, and Lord Justice May agreed with his reasons.
2. Under section 2 of the Occupier's Liability Act 1957, and particularly section 2(2), the occupier’s common duty is to take such care as is reasonable in all the circumstances to see that visitors are reasonably safe when using the premises for the permitted purpose. It is not a duty to ensure that accidents do not happen. The common law negligence claim did not impose a different standard.
3. The Recorder had misdirected himself by treating reasonable foreseeability of an accident as requiring the Council to prevent it. His reasoning effectively imposed a higher standard than the statutory duty. The Court of Appeal therefore had to reassess the facts and undertake the required balancing exercise.
4. The cycle track was wide and generally safe. The drainage gullies were close to the tunnel walls, served an accepted drainage and gas-main protection purpose, and were generally filled to the level of the concrete path. Cyclists would ordinarily keep away from them. The long history of use without a relevant accident or complaint, despite approximately 30,000 cyclists using the tunnel each year, demonstrated that the risk was minimal.
5. Even assuming a depression of no more than two-and-a-half inches, the evidence did not establish a breach of the duty to take reasonable care. The findings about lighting were not sufficiently connected with the accident. The gullies were visible on entering the tunnel, and Mrs Beaton stopped because of an unfolding family incident and sensibly put her foot down to keep herself upright.
6. There was no contributory negligence on Mrs Beaton’s part, but that did not assist her because breach by the Council had not been proved. The liability judgment was therefore reversed. The appeal was allowed with costs subject to detailed assessment.

• Court of Appeal (Civil Division): Allowed Devon County Council’s appeal from the decision of Mr Recorder Greenwood sitting at Barnstaple County Court on 19 March 2002, which had found the Council liable for Mrs Beaton’s injuries.