Cole v Davies-Gilbert & Ors

Negligence requires proof of causative fault. A person who fills a temporary hole is not liable merely because the hole later becomes exposed and causes injury. The claimant must prove that the defendant failed to take reasonable care and that the breach caused the accident. An intervening disturbance by an unidentified person may prevent proof of causation.

The duty under Occupiers' Liability Act 1957, section 2(2), is a duty to take reasonable care in all the circumstances. It does not impose a more onerous standard than the common law. Landowners are not liable without proof that they knew, or had reasonable grounds to believe, that the hazard existed.

The claimant was injured after stepping into a hole on a village green. At trial in Brighton County Court, His Honour Judge Simpkiss found that the hole was the maypole hole, that the Royal British Legion was responsible for the fête, and that the hole had not been adequately made safe after its use in 1999. He held the Royal British Legion liable, while dismissing the claims against the owner of the green and the parish council.

The Royal British Legion appealed. The claimant appealed against dismissal of her claim against the first defendant, Charles Beresford Davies-Gilbert, relying on the Occupiers' Liability Act 1957. The central issues were whether the trial judge was entitled to identify the hole as the maypole hole, whether the post-fête precautions were inadequate and causative, and whether the landowner had sufficient knowledge of the danger.

1. The Royal British Legion's appeal was allowed. The trial judge was entitled to find that the claimant had stepped into the maypole hole. The discrepancies between the witnesses' descriptions and the later inspection did not make that finding unavailable, particularly because the accident occurred near the maypole hole and there was no evidence of another hole (paras [21]–[23]).
2. The finding that the hole had been inadequately refilled after the 1999 fête was not supported by the evidence. The judge had accepted that Mr Gray filled the hole as he described. Whether the work was adequate depended on the condition of the hole, not on who performed it or whether the Royal British Legion had instigated it. The hole remained filled for about 21 months, and there was no evidence that it became exposed before shortly before the accident. The likely removal of the plug by an unidentified person broke the evidential chain on breach and causation (paras [27]–[33]).
3. Common law negligence requires causative fault to be proved. The standard is the care that is reasonable in all the circumstances. An injury may therefore be a loss for which the law provides no damages where fault cannot be established (paras [33], [36]).
4. The claimant's appeal against the first defendant was dismissed. Section 2(2) of the Occupiers' Liability Act 1957 states the common duty of reasonable care to see that a visitor is reasonably safe for the permitted purpose. It does not impose a more onerous obligation than the common law. On the trial judge's findings, the owner and the parish council had no involvement in opening or resealing the hole and had no knowledge, or reasonable grounds to believe, that it had become exposed and dangerous. Those findings defeated the claim (paras [34]–[37]).
5. All three judges agreed. Lord Justice Laws emphasised that the law imposes no absolute duty to keep land safe in such circumstances. Sir Igor Judge stressed that the hole had been properly filled after the fête and that its later exposure, in uncertain circumstances, could not be shown to have been caused by negligence (paras [38]–[47]).
6. There was no order for costs below. The claimant was ordered to pay one-third of the Royal British Legion's appeal costs and the costs of the appeal relating to the remaining defendants. An interim payment of £20,000 on account of the Legion's costs was to be repaid (para [48]).

• Court of Appeal (Civil Division) — In [2007] EWCA Civ 396, the Royal British Legion's appeal was allowed and the claimant's appeal against the dismissal of her claim against the first defendant was dismissed.
• Brighton County Court — His Honour Judge Simpkiss found the Royal British Legion liable in negligence and dismissed the claims against the first defendant, the parish council and the other defendants. The judgment is described in the supplied text but has no citation.