Glaister & Ors v Appelby-In-Westmorland Town Council

Liability for injury caused by a negligent third party requires more than foreseeability and preventability. It ordinarily depends on a recognised relationship between the claimant and defendant, or between the defendant and the third party, which gives rise to responsibility for protection. A public body does not assume such responsibility merely by promoting an event or participating in its organisation where it neither occupies the relevant land nor controls the activities. A novel duty to procure public liability insurance, particularly to protect against economic loss from inability to recover from the tortfeasor, must develop incrementally by analogy with established categories. The formula of what is fair, just and reasonable is not a free-standing test. The claimants therefore established neither a duty to ensure insurance nor a duty to ensure safe segregation and supervision of horses.

The claimants attended the Appleby Horse Fair when an untethered horse kicked and seriously injured Mr Glaister. His wife and daughter claimed for psychological injuries. The original allegations that the Town Council had negligently permitted unsafe tethering and racing arrangements were abandoned. The claim proceeded on the alternative basis that the Town Council owed visitors a duty to ensure that appropriate public liability insurance was obtained, or that the relevant use of Fair Hill was made conditional on such insurance.

After trial in the Middlesbrough County Court, Mr Recorder Storey QC found the Town Council liable and ordered damages to be assessed. The central issues on appeal were whether the Town Council owed either the pleaded insurance-related duty or a wider duty concerning segregation and supervision, and whether the absence of insurance caused recoverable loss.

1. Appeal allowed. Toulson LJ delivered the leading judgment. Jacob LJ agreed, and the Master of the Rolls wholly agreed, expressly preferring Sedley LJ’s reasoning in Gwilliam v West Hertfordshire Hospitals NHS Trust [2002] EWCA Civ 1041, [2003] QB 443.
2. The recorder’s causation finding was unsustainable. He did not identify which body would have been legally liable for the accident if insured, nor find that such a body would have been unable to satisfy a judgment. The claimants therefore could not show that the absence of insurance caused recoverable loss.
3. The wider proposed duty was also untenable. The Town Council was not the occupier of the land where the accident occurred and did not cause or direct the tethering or racing activities. It had no arguable duty to assume responsibility for their safe organisation, and therefore no derivative duty to procure that a third party did so. A body which promotes or supports a public event does not thereby become liable for the negligence of participants.
4. As a general principle, a defendant is not ordinarily liable for personal injury or physical damage caused by a third party’s negligence merely because the defendant could foresee and prevent it. Something more is required, such as a relationship with the claimant or third party which creates responsibility for protection. Examples include occupier–visitor, employer–employee, agency and quasi-parental relationships, as illustrated by Home Office v Dorset Yacht Co Limited [1970] AC 1004.
5. The proposed free-standing insurance duty was a novel claim for economic loss. The authorities require novel negligence categories to develop incrementally and by analogy with established categories. The expressions fair, just and reasonable do not provide a comprehensive test. The relationship must involve sufficient proximity, including a particular transaction or activity and a proper expectation that the defendant would safeguard the claimant from economic harm. No such special relationship existed between the Town Council and the general public.
6. Insurance conditions would not automatically enlarge an insured party’s legal duty to visitors. If the Town Council had no duty to protect against the physical consequences of the accident, it was not just and reasonable to impose the more remote duty to protect against the economic consequences of being unable to enforce a judgment against the negligent third party.

• Court of Appeal (Civil Division) — [2009] EWCA Civ 1325 ; allowed the Town Council’s appeal.
• Middlesbrough County Court — Mr Recorder Storey QC, judgment delivered on 2 March 2009; found the Town Council liable and ordered damages to be assessed.