Chapter Updates

Chapter 13: Introduction to tort liability

Judicial and parliamentary caution as to the extension of the tort of negligence

In Cole v Davis-Gilbert and Others (2007) the Court of Appeal held that the owners of a village green were not in breach of their duty of care to the claimant, Yvonne Cole, who had been injured when she fell into a hole that had been left following the use of a maypole at a fete on the green. The fete had been organised by the Royal British Legion and one of its members had filled in the hole left by the maypole after the fete. An unknown third party must have removed this filling for the accident to have occurred.

The case is interesting because it shows a degree of judicial caution about the standard of care required in such situations. As Lord Oaksey’s comments in Bolton v Stone (1951), and the decision in Latimer v AEC (1953) illustrate (see pp268-269), the reasonable man is only under a duty to act “reasonably”. Lord Justice Scott Baker commented in Cole that “If the courts were to set a higher standard of care than what was reasonable, fear of the consequences might mean that there would be no fetes, no maypole dancing and no similar activities on English village greens.”

This indicates that whilst there still are concerns about the extension of the tort of negligence so as to create a “compensation culture” – see, for example, Jon Holbrook’s argument in the New Law Journal (2 February 2007, ‘The sliding snail’ at pp168–169) that some recent court decisions lay down such high standards of care that genuine accidents become matters of fault, thus extending far beyond the form of liability envisaged by the House of Lords in Donoghue v Stevenson (1932) – some senior members of judiciary are cautious about the implications of going beyond the ‘reasonable care’ standard. Lord Hobhouse made the point clearly in his judgment in the case of Tomlinson v Congleton BC (2003), where the House of Lords dismissed the claim of a person who had decided to dive into a lake on council–owned property where swimming was clearly prohibited and suffered serious injury as a result. As Lord Hobhouse commented: “Does the law require that all trees be cut down because some youths may climb them and fall? Does the law require the coastline and other beauty spots to be lined with warning notices? …The answer to all these questions is, of course, no.” He also criticised the arguments for the claimant in the case as an attack on individual liberty: “They attack the liberty of an individual to engage in dangerous, but otherwise harmless, pastimes at his own risk and the liberty of citizens as a whole fully to enjoy the variety and quality of the landscape of this country. The pursuit of an unrestrained culture of blame and compensation has many evil consequences and one is certain the interference with the liberty of the citizen.” Lord Scott Baker was making a similar point when he predicted the end of village fetes and related activities in the event of liability being extended.

Parliament has also intervened on the ‘standard of care’ issue by passing the Compensation Act 2006. The long title of the Act includes its purpose with regard to this issue: “to specify certain factors that may be taken into account by a court determining a claim in negligence or breach of statutory duty.” In Part 1, titled ‘Standard of Care’, the legislation provides, at s1, that when a court is considering a claim in negligence and seeking to determine whether a defendant should have taken particular steps to meet a standard of care (such as taking precautions against a risk), it should “have regard to whether a requirement to take those steps might – (a) prevent a desirable activity from being undertaken…or (b) discourage persons from undertaking functions in connection with a desirable activity“. Moreover, at s2, it is stated that apologies, offers of treatment and other forms of redress should not, of themselves, be taken to be evidence of negligence.

The Explanatory Notes to the Act identify three reasons for the provisions in ss1 and 2: “to contribute to improving awareness of this aspect of the law; providing reassurance to the people and organisations who are concerned about possible litigation; and to ensuring that normal activities are not prevented because of the fear of litigation and excessively risk–averse behaviour.” By normal “desirable” activities, Parliament clearly has in mind the sorts of activities alluded to in Cole and by Lord Hobhouse in Tomlinson: village fetes; holiday pursuits; and youthful play. School trips should not, for example, be restricted for fear of litigation. However, Jon Holbrook, in his aforementioned New Law Journal article, is not convinced that the Act will provide sufficient protection from the ‘compensation culture’ that he observes: “What Parliament failed to appreciate was that the public perception stems from a real problem – namely the relative ease with which courts will nowadays find a defendant to have been negligent. What needs to be changed is not the public perception but the reality that underpins that perception. It remains to be seen if the courts will use the Compensation Act 2006 to rise to this challenge.“ But is Holbrook right to be pessimistic? On the evidence of Cole, at least, it seems that the ‘standard of care’ can still be sensibly applied by the courts and, with support from the Compensation Act 2006, there is more of a chance that attempts to raise the standard of care beyond reasonable care will be resisted.