Omission cases in common law negligence… it's elementary my dear Watson

Liam Walsh discusses the approach taken by HHJ Godsmark QC at Nottingham County Court in the recent case of Pauline Watson v The Caravan Club.

Liam Walsh discusses the approach taken by HHJ Godsmark QC at Nottingham County Court in the recent case of Pauline Watson v The Caravan Club 2014 WL 4081301 in respect of common law negligence for omissions rather than positive acts.  

Facts

The claimant, and her husband, were members of the Caravan Club and arranged to stay at the site over the weekend the alleged accident occurred. The claimant, on leaving the Caravan Club’s site in the dark, exited the site entrance via the tarmac driveway, continued across a grass verge and fell into a ditch which was situated on adjacent land that was neither owned nor occupied by the Caravan Club.  As a result she sustained a nasty injury to her heel.  The claimant withdrew her claim brought under the Occupiers' Liability Act 1957 against the Caravan Club on the eve of the Trial whist maintaining her claim in common law negligence.

The Caravan Club had placed the Club’s sign on the grass verge next to the ditch and also mowed the grass verge.  As such, the claimant alleged, that she was owed a duty of care as a member of the Caravan Club.  She also alleged a failure to warn by the Club.

Judgment

HHJ Godsmark relied upon Mitchell v Glasgow City Council [2009] UKHL 11 which had found that “foreseeability of damage is not of itself enough for the imposition of a duty of care” but “a duty to take positive steps to prevent foreseeable loss to another may arise if there is an additional feature”. The three examples set out in Mitchell were: 

  1. the manner in which the harm came to arise and whether the Defendant played a causative part in the chain of events;
  2. the relationship between the defendant and victim; and
  3. the relationship between the defendant and the place where the risk arises. 

HHJ Godsmark, having considered the facts, did not accept that the claimant had established any one of the additional “Mitchell features” in this case to establish that a duty of care was owed to the claimant. In particular, the Judge found: 

  1. the placing of the sign and/or the mowing of the grass verge did not constitute a consideration in the claimant’s mind when deciding to cross the grass verge as she had simply tailored her evidence following the earlier legal argument regarding the additional “Mitchell features”;
  2. that the Caravan Club did not owe the claimant a greater duty than that of a non-member; and
  3. the proximity of the tarmac driveway and ditch did not create a relationship between the Caravan Club and claimant due to the separating grass verge. 

It was therefore concluded there was insufficient evidence to create a duty requiring a party to take positive action to warn about hazards on land which they did not own. Accordingly, the claim failed.

Comment

It is certainly a worrying concern for land owners, who not only have to give consideration for their own property but potentially those lands adjoining theirs.  Whilst this public policy decision will clearly come as a welcome relief to occupiers of land, it is clear that liability may be imposed for risks as adjoining land in different factual circumstances. 

Whilst the claimant’s case failed, it was accepted that the Caravan Club “effectively invites its users” (paragraph 41) to exit the site via the tarmac driveway. As the ditch was three or four steps from the driveway, it was found not to be close enough to impose a duty on the Caravan club.  However, it was considered that had there been a steep drop one step from the side of the driveway, in the absence of the grass verge, then “one could see an argument for the imposition of a duty… because the use of the driveway was itself dangerous” (paragraph 41).  

These comments suggest landowners should give reasonable consideration to proximate risks adjacent to their land. The landowners’ concern should focus upon the effect such a hazard has upon his land, whether the presence of such renders his premises dangerous, and whether potential land users should be warned about such hazards to avoid any potential litigation in the future. 

The circumstances mooted in the Judgment are akin to those in the recent county court decision of Edwards v Sutton LBC (2014) (unreported) where it was held that an ornamental bridge in a local authority park presented an obvious danger and the defendant local authority should have posted warning signs in order to discharge its duty to take reasonable care for the safety of visitors. The duty placed on the local authority seems overly onerous.  This decision may yet be appealed (and indeed one can envisage the Court of Appeal overturning it on public policy grounds in view of the nature of the defendant) but demonstrates the need for occupiers to be vigilant abut the state of their land and that adjoining it.

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