Tacagni v Penwith District Council

Under section 2(2) of the Occupiers Liability Act 1957, an occupier must take reasonable care in all the circumstances to keep visitors reasonably safe for permitted purposes. The duty does not require precautions against every foreseeable risk. The court must consider whether the risk was reasonably likely, together with the care ordinarily expected of the visitor and the practicality of proposed safeguards. An appellate court must respect the trial judge’s factual advantage but assess independently whether breach is established. An unlit path beside a drop did not, on the evidence, make the particular accident a likely risk requiring extended fencing or warning signs. The action therefore failed.

The claimant was injured after following a fence beside an unlit foot and cycle path and falling from a verge onto the road. The claim was brought against Penwith District Council and two other local authorities.

On 15 May 2012, His Honour Judge Clark QC in the Truro County Court entered judgment for the claimant against Penwith, finding one-third liability subject to a two-thirds deduction for contributory negligence. The claims against the other defendants were dismissed.

Penwith appealed, contending that the accident was only a remote possibility and that further fencing or warning signs were not required. The central issue was whether Penwith had breached its statutory occupier’s duty of care.

The appeal was allowed unanimously and the action was dismissed.

1. McCombe LJ held that the relevant duty was the common duty under section 2(2) of the Occupiers Liability Act 1957. The standard required reasonable care in all the circumstances to keep visitors reasonably safe for permitted purposes. It did not require precautions against every foreseeable risk. The proper question was whether the accident was reasonably likely and whether further precautions were warranted. The approach in Bolton v Stone [1951] AC 850 was applied.
2. Although an appellate court must pay considerable respect to a trial judge’s evaluation of facts, it must assess for itself whether the findings establish breach. McCombe LJ applied that approach, following Clare v Perry [2005] EWCA Civ 39, while bearing in mind the trial judge’s evidential advantage discussed in Biogen Inc v Medeva plc [1997] RPC 1.
3. The evidence did not warrant treating the accident as a likely possibility requiring a further 100 metres of fencing or warning signs. Mr Bassett’s concerns related principally to cyclists and children near other parts of the path. The fence had been installed to address the landslip, while a substantial grass verge remained beyond it. An ordinary pedestrian following the fence would be expected shortly to recognise that he or she had left the metalled path. Penwith was therefore not in breach.
4. Lewison LJ agreed. In his concurring judgment, he treated section 2(3) as making the degree of care ordinarily expected of the visitor a highly material circumstance. The claimant had been out late, had consumed alcohol, had no torch and was wearing uncomfortable flip-flops. The failure to take that factor into account vitiated the trial judge’s evaluation. Laws LJ agreed with both judgments.

• Court of Appeal (Civil Division): Penwith’s appeal was allowed and the action was dismissed.
• Truro County Court: On 15 May 2012, His Honour Judge Clark QC entered judgment for the claimant against Penwith on liability, subject to one-third liability and a two-thirds deduction for contributory negligence. Claims against the other defendants were dismissed.