Dean and Chapter of Rochester Cathedral v Debell

An occupier must take reasonable care to make visitors reasonably safe, but does not guarantee their safety. For commonplace defects in paths, reasonable foreseeability requires a real source of danger which a reasonable person would recognise as calling for remedial action. A merely foreseeable risk arising from a minor blemish is insufficient.

The assessment is practical and contextual. It balances the nature and extent of the risk against the burden of identifying and eliminating defects. A court may consider the likelihood of injury, the use and location of the path, inspection arrangements, and the difficulty and cost of remediation.

A visitor tripped over a small piece of concrete protruding from the base of a traffic bollard in Rochester Cathedral precincts. The County Court found the Cathedral liable in negligence, awarded damages of about £21,597, and reduced them by 20% for contributory fault.

The Cathedral appealed against liability. The central issue was whether the defect presented a reasonably foreseeable danger requiring remedial action under the common duty of care in the Occupiers’ Liability Act 1957, or was merely an ordinary minor blemish which visitors could reasonably be expected to encounter.

1. Appeal allowed. The County Court judge misdirected himself by treating foreseeability of injury as sufficient. In cases concerning minor defects in paths, not every foreseeable risk requires an occupier to act. The correct question is whether the defect amounts to a real source of danger which a reasonable person would recognise as requiring remedial action.

2. The common duty under section 2 of the Occupiers’ Liability Act 1957 requires reasonable care to make visitors reasonably safe. It does not guarantee safety or require roads and paths to be kept in a pristine condition. Liability requires something beyond the ordinary risks created by the minor blemishes and irregularities habitually found on roads and pathways.

3. The assessment requires a practical and realistic judgment. Relevant matters may include the likelihood of injury, the use and location of the path, any system for identifying hazards, and the difficulty and cost of eliminating them. The burden includes the systemic cost in time and money of identifying and repairing defects of the relevant kind, rather than merely the cost of repairing the particular defect.

4. The suggested two-stage test, separating foreseeability of harm from whether a reasonable person would perceive a real source of danger, was rejected. Those formulations express a single test of reasonable foreseeability, understood in this particular context.

5. The concrete was extremely small and did not constitute a real danger to pedestrians. It was very unlikely that a pedestrian would walk sufficiently close to the bollard to trip or suffer injury. The defect therefore did not require remedial action. Even if the trial judge had applied the correct test, his conclusion was not reasonably open on the evidence.

6. The occupier’s duty extends to inattentive or careless visitors. A finding that a claimant should have noticed and avoided a hazard can therefore coexist with a finding of breach by the occupier. That principle did not, however, establish breach on these facts.

Lady Justice Hallett agreed with Lord Justice Elias.

1. Court of Appeal (Civil Division): By [2016] EWCA Civ 1094, allowed the Cathedral’s appeal and set aside the finding of liability.

2. Lewes County Court: HH Judge Coltart found the Cathedral liable in negligence, awarded damages of about £21,597, and reduced the award by 20% for contributory fault.