On 7 June 2006 Mrs Hunt, a 47-year-old lady, paid a visit to Ripon Cathedral in North Yorkshire, as part of a sightseeing tour she was taking with her partner. Having looked round the inside of the Cathedral her partner suggested that Mrs Hunt might like to inspect the crypt. The crypt is located in the centre of the building. It is regarded by those who know the Cathedral as something of a jewel, since it is the oldest crypt in the country, having started life as the church built by St Wilfred in 672 AD. It is reached by a set of wooden steps that lead to a narrow passageway and a final flight of four ancient sandstone steps.
While descending the penultimate stone step Mrs Hunt had the misfortune to step on an area of depression in the sandstone. This caused her to fall and injure her ankle. Subsequent to the accident the defective area was measured and found to be six inches by five inches wide, and 1.25 inches deep at its deepest point. Mrs Hunt considered that this constituted an obvious hazard and sued the Chapter of Ripon Cathedral for failing to discharge their duties under the Occupier’s Liability Act 1957 (the 1957 Act).
Her claim was heard at the Middlesbrough County Court on 13 October 2008 (Hunt v The Chapter of Ripon Cathedral). Having listened to the evidence and submissions the judge dismissed the action. This article considers the duties owed to a visitor in Mrs Hunt’s position and how the discharge of the duty varies depending on the type of building visited.
Occupiers’ duty
The duty imposed on the occupier under the 1957 Act is, of course, to take reasonable care that the visitor ‘will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there’ (s2(2)).
The repetition of the criteria of reasonableness in the 1957 Act is usually interpreted as a limiting qualification on the duty, since it is often suggested that the occupier’ only’ has to take reasonable care to ensure that the visitor is reasonably safe. However, a more potent restriction to liability concerns the nature of the location where the accident takes place, and particularly whether or not it has a function that can be said to provide ‘a social value’.
The Cobb at Lyme Regis
In 1995 the Court of Appeal was asked to consider the Cobb at Lyme Regis in Staples v West Dorset District Council. Famous for its appearance in The French Lieutenant’s Woman, the Cobb was described by Kennedy LJ as a ‘serpentine harbour wall’ that had stood in its position for 165 years. It was open to the public at all times, and had become a well-known tourist attraction:
When wet as it often is in the winter months because of rain, wind, sea and spray, this algae-affected seaward edge of the High Wall is in parts slippery.
Paul Staples, a 32-year-old visitor to the Cobb, decided to walk on it when the weather was fine, but there was ‘a strong south-east wind and spray was affecting the top surface of the wall’. In consequence, Mr Staples slipped and fell off the wall, suffering a fractured left hip in the process. His claim for damages was upheld by Auld J, who found that the Council was at fault for failing to erect a sign that should have warned those using the Cobb ‘of the particular danger of the surface being slippery’.
The Court of Appeal disagreed. They concluded that the risk of the wall being slippery when wet was so obvious that no duty existed. Moreover, they concluded that even if the Council had erected a sign of the type favoured by Auld J it was unlikely to have caused Mr Staples to act any differently.
At the time, the decision in Staples was greeted as a triumph for common sense, and possibly the high-water mark for compensation claims. However, it is clear that the Court’s reasoning was intended to place particular emphasis on the nature of the Cobb as a tourist attraction, and to the fact that Mr Staples had been allowed to use it (along with other visitors) for the purposes of recreation.
The Lake at Brereton Heath Park
This line of reasoning was developed further in the judgement of Lord Hoffmann in Tomlinson v Congleton Borough Council & ors [2003]. In that case the defendant owned and occupied a disused quarry that had filled with water to create a lake. It was known to attract many visitors in hot weather. The claimant was one of them, and on 6 May 1995 he dived into the lake, struck his head and sustained severe spinal injuries. The trial judge dismissed the claim for damages, but the Court of Appeal permitted it on the claimant’s appeal. Overturning that decision in the House of Lords, Lord Hoffmann considered that, when assessing the question of whether the occupier had provided reasonable care, the court had to assess:
… not only the likelihood that someone may be injured and the seriousness of the injury which may occur, but also the social value of the activity which gives rise to the risk and the cost of preventative measures.
He suggested that these factors had to be balanced against each other. Referring to Jolley v Sutton London Borough Council [2000] he stated that:
… there was no social value or cost saving to the Council in creating a risk by leaving a derelict boat lying about. It was something which they ought to have removed whether it created a risk of injury or not. So they were held liable for an injury which, though foreseeable, was not particularly likely. On the other hand, in The Wagon Mound (No 2) [1967] Lord Reid, at p642, drew a contrast with Bolton v Stone [1951] in which the House of Lords held that it was not negligent for a cricket club to do nothing about the risk of someone being injured by a cricket ball hit out of the ground. The difference was that the cricket club were carrying on a lawful and socially useful activity and would have had to stop playing cricket at that ground.
Accident in St Botolph’s Church, Saxilby
In March 1999 Betty Kitchen fell and injured herself while attending a wedding at St Botolph’s Church (Kitchen v St Botolph’s Church [2003]). Mrs Kitchen alleged that the cause of her accident was a misplaced drain cover. However, the judge found against her, since he felt that he could not exclude other potential causes for her accident, including evidence that she may have fallen due to uneven ground or while chasing her granddaughter. Notwithstanding that the claim failed due to a finding of fact, HHJ Mitchell went on to consider the issues raised by Lord Hoffmann in Tomlinson:
It is, of course, perfectly possible for a visitor to a church to fall, for example because a high heeled shoe gets caught in the gravel of a church drive or they may trip against a raised grass verge and fall. Such accidents do occur but do not give rise to the liability of the occupier. I am not satisfied that the claimant did fall in the area of the sunken drain, but even if she did we do not require the construction of immaculate walkways round our ancient buildings in case someone falls because they have not looked sufficiently carefully where they are going. It would be highly undesirable if we required the appearance of our medieval country churches to be infected by warning notices or surrounded by a flat grating system (which was suggested to be the appropriate solution in this case). Such an attitude would offend anyone’s sense of ‘reasonableness’ and proportionality – taking into account the cost of such remedial work and the damage to the aesthetic features of the building by comparison with the isolated single case of a fall in broad daylight by a claimant who could see the obstacles, if any, in her immediate vicinity.
Compensation Act 2006
Moreover, since Tomlinson there is now a statutory requirement on the court to consider the potential for detrimental consequences of finding against an occupier. Section 1 of the Compensation Act 2006 specifies:
Deterrent effect of potential liability
A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might:
(a) Prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way; or
(b) Discourage persons from undertaking functions in connection with a desirable activity.
Ancient monuments
Position of the visitor
Hazards at ancient monuments often include rough floors and narrow passageways, and light levels may be reduced to minimise damage to fabric and paintings. The visitor cannot expect to find the standard of a shop or factory when looking round a cathedral, and has to take increased care to protect themselves accordingly. In this case of Hunt the cathedral chapter claimed that there was a particular atmosphere of age and authenticity that they wanted to preserve in the crypt. That meant retaining the original 7th century sandstone floor and steps. They believed that this was consistent with their duties to the visitor, and that the public expected this level of authenticity when they came to admire the oldest crypt in the country.
The occupier
The owners and the administrators of historic houses, churches, museums, monuments and similar properties will note what amounts to a public policy to restrict claims for personal injury where the accident location provides a ‘socially useful activity’. Nonetheless they have a duty to carry out an inspection of the access routes provided and of all areas where visitors are permitted to enter. But not every ancient floor will require relaying, nor will every corridor have to be provided with handles and grab rails. What then is the extent of the responsibility? Can an occupier of an ancient monument avoid liability if it does nothing at all? Lord Hoffmann referred to a balancing exercise that requires four criteria to be considered. On one side of the scales we have the risk and gravity of any injury; while on the other side there are the costs of avoiding the risk and the social value comprised in the amenity. The first three elements of the equation may be easy enough to calculate, by means of the usual risk assessment. The social value element is more difficult. It is easy enough to identify, but how does one quantify its place in the balancing act? The judge in Hunt considered that the cathedral chapter was entitled to regard alterations to the fabric (i.e. repairs) as a remedy of last resort. Accordingly, a repair to the crypt floor would only be regarded as mandatory if the risk of injury reached the stage where both the likelihood and the level of damage could be regarded as significant. However, he went on to conclude that once the threshold for intervention had been reached (i.e. once it was considered that the risk and level of injury was significant) then the fact that the crypt would have to be closed for three days to carry out the repairs would not have amounted to a reason for not carrying out the work. The chapter did not suggest that the costs of the work in themselves would be significant (less than £100 for the mortar), but they were concerned that the closure of a major part of the cathedral would disappoint a large number of visitors.
The courts
When dealing with an injury occurring at premises offering a social value, the courts are likely to determine such claims in accordance with the following principles:
(1) The visitor should not have unrealistic expectations of floor surfaces and surroundings when visiting an ancient monument.
(2) The occupier is not under a duty to warn the visitor of a risk that should be obvious to the reasonable observer (i.e. Staples).
(3) When considering whether or not the occupier has discharged its obligations under the 1957 Act the court will consider the four ingredients of Lord Hoffmann’s test: risk of injury, level of injury, cost of preventative measures and social value of the activity.
(4) Consideration of the costs of preventative measures includes considering the extent of any deterrent effect of a finding of liability, as specified in s1 of the Compensation Act 2006.
(5) Consideration of the social value of the activity will be likely to include:
Purpose of the activity, visitor numbers, the beneficial purpose of the activity and the extent it benefits society as a whole.
Conclusion
Some might regard this development of the law as creating unfairness, since a case of genuine injury may receive no redress merely because of the location of where it takes place, while others may applaud any policy that reduces the potential for compensation claims. Whatever the correct view there is an element of practical logic to the development. The potential for a sharp increase in maintenance costs has been avoided; the value of historical authenticity has been approved; and the public can be permitted access to the areas that might otherwise have been closed on the grounds of health and safety
Credit for this article should be given to Mr. Simon Wheatley, Barrister.
The article featured in PI Law Journal Jan 09.
