Cole v Davies-Gilbert & Ors

LORD JUSTICE SCOTT-BAKER: The basic facts of this case are simplicity itself. Unfortunately, they have led to some lengthy, complicated and expensive litigation. Nearly six years ago, on 9th April 2001, Mrs Cole was planning to go with her husband, Dr Cole, and Mrs Sommer-Erichson, a friend who was visiting from Norway, to have a meal at the Tiger Inn at East Dean in Sussex. The Coles lived in Eastbourne so they went by car, parking at the opposite side of the village green to the Tiger Inn. They then set off to walk across the green. Mrs Cole and Mrs Sommer-Erichson were together chatting. Dr Cole was 20 yards or so behind.

It was a typical scene in an attractive English village on a spring evening, but what happened next had a devastating effect on the Cole family in general and Mrs Cole in particular.

As Mrs Cole and her friend approached the War Memorial Mrs Cole caught her foot in a hole of which she was unaware, fell over and broke her leg. Sadly, she had a very severe spiral fracture of the tibia. The effects of the accident remain with her even today.

The litigation from which the current appeal arises was the trial of liability on Mrs Cole's claim for damages. It took place over a number of days in April and the summer of 2005. There were five defendants. The first three are different manifestations of the Gilbert Estate, who can in shorthand be described as the legal owners of the village green. For practical purposes, the court has effectively been concerned only with the first defendant, Charles Berrisford Davis-Gilbert; the fourth defendant is the East Dean and Friston Parish Council; and the fifth defendants are the Royal British Legion. The judge held the Royal British Legion liable on the basis that it was responsible for running the annual fête, that the hole into which Mrs Cole put her leg was a hole used to house the maypole at the annual fête and that it had not been properly capped off and made safe after its last use.

The Royal British Legion claimed it was not their hole in which she tripped; and the judge was faced with complex issues as to whether one or more of the first, fourth and fifth defendants was liable. In the event, he held the first and fourth defendants were not, but the fifth defendant was.

Mrs Cole never advanced her claim on the basis that the hole was other than the maypole hole, and the case against each defendant was effectively that he, or it, failed to take reasonable steps to ensure the maypole hole was properly capped off and remain so between uses.

There was at the trial no other candidate for the offending hole other than the maypole hole. Indeed immediately after the accident several people came out of the Tiger Inn to help. A local man, Mr Hamilton, said to Dr Cole that Mrs Cole must have put her foot into the hole where the maypole was placed during the annual fête. Mr Hamilton did not give evidence, having apparently left the village by the date of the trial. Mr Pendlebury, who has appeared for the fifth defendant on this appeal, submits that Mr Hamilton's evidence is hearsay and that little weight should be given to it because he could not be tested in cross-examination. Be that as it may, it was evidence in the case.

If Mrs Cole did not prove she tripped in the maypole hole, it was common ground that she must lose her case. If she did prove she tripped in the maypole hole, the question was whether any, and if so which, defendant was responsible.

The hole was filled in within 24 hours of the accident. There was no evidence by whom; nor was there any evidence that whoever did so had any connection with any of the defendants. All that remained the next day was an area of about 10 inches by 12 inches covered in earth or small clumps of grass. Dr Cole took photographs and made measurements the day after the accident.

At the hearing, the judge had photographs of the maypole in operation in previous years, and heard evidence about the maypole hole's location. The judge found it was very close to the position of the hole into which Mrs Cole fell. The judge also found that there was no serious evidence of there ever having been any holes in the relevant area other than the maypole hole, and no evidence of any recent digging or earth on the green at the time of the accident.

The judge's use of the word "serious", may have reflected the evidence of Fleur Gray, the adult daughter of another witness, Percy Gray. The judge referred to her evidence at paragraph 27 of his judgment. He said:

At the trial, the fifth defendants' counsel submitted, as the judge put it with some force, that the hole described by Mrs Cole and the witnesses' called on her behalf was completely at variance with the description of the hole known to be the maypole hole. Thus, it is submitted that the judge's findings of fact that Mrs Cole fell into the maypole hole was not open to him and should not stand.

The first appeal we have to consider is that of the fifth defendant: the first ground of that appeal that the judge was wrong to find Mrs Cole tripped in the maypole hole.

Before coming to consider that question, it is necessary to say a word or two more about some of the evidence that the judge heard and read. The judge found that Mr Worsell, known as the coastguard, was the most impressive witness about the history of the hole. Mr Worsell was approached in 1977, prior to the Queen's Silver Jubilee, by a member of the village organising the Jubilee celebrations, with the suggestion that it would be a good idea to revive maypole dancing. As a result, Mr Worsell dug a hole near the war memorial, using a 6-inch order to a depth of about 2½ feet. He inserted in it a 2¾ inch plastic pipe and filled in the surround with concrete. Concrete seeped out at the top to make it into a wider area. He then covered the top of the pipe with a plastic cap and put 4 inches of turf over the top. In subsequent years he was always able to find the hole. Others had more difficulty. He said that the hole was always invisible within two weeks of his having replaced the turf. Each year Mr Worsell opened the hole and removed the cap. He put a sleeve on the bottom of the maypole which fitted neatly into the plastic tube. Each year after the fête he recapped the hole and returfed the area, and he did that up until 1998, which was the last year that he did it.

The maypole hole and the maypole were used again in 1999, however. In this regard the judge relied on the evidence of Maureen Seabrook. She was the Brown Owl. She said that in 2000 there were not enough Brownies to make it worth using the maypole hole and she told the fifth defendants (the British Legion) that it would not be needed. In fact they used some kind of cardboard pole in 2000, which it is said was something of a disaster.

Mrs Seabrook was a key witness to what happened in 1999. When she arrived at the green, the hole had been located. She said that she dug out the muck, as she put it, with her hands in order to clear it. Like others, she could not recall whether there was any concrete around the hole, nor did she notice any cap. After the dancing had finished, she and others carried the maypole back to the village hall where it was kept. It was quite heavy and it needed, she said, three people to carry it. Having carried it back with her husband, she filled in the hole with soil and stones. She put a chair over the hole and spoke to somebody organising the fête, by inference somebody belonging to the fifth defendants who told her that they would finish off the job. She put a chair over the top, obviously to identify where the hole was.

Mrs Seabrook's evidence is to be found in the bundle at F171. She was asked: "By whom was the socket hole re-filled in 1999?" She replied:

Mr Gray is a retired architect who would have been about 80 in 1999 and 85 or so at the time of the trial. The judge did not find all of Mr Gray's evidence reliable but he accepted some of it. Mr Gray said that the Legion, of which he was a member, was responsible for filling the hole after the fête. He was asked who filled it in and how he knew it was connected to the British Legion. He said:

The evidence, as I have said, does not identify the person to whom Mrs Seabrook spoke who said he would finish the job off, or whether indeed that person was Mr Gray.

I move on now to April 2005, shortly before the trial. On 5th April 2005 Mr Gray, Mr Worsell and others, including the parties' solicitors, set about locating the hole. Mr Gray said of the hole that they located that he could get his arm in; that it was 18 inches deep; that there was no concrete; no evidence of any plastic pipe or cap. Mr Worsell do not inspect the hole but a Mr Frith did. He saw concrete in the hole, with a 2½ inch pipe in it and a black stone over the pipe.

Because of the obvious discrepancies in the descriptions of the people who had inspected the hole, a further inspection took place on 29th April after the evidence at the trial had been completed. Solicitors, counsel and Mr Worsell went back to re-inspect the hole. Photographs were taken and an agreed note prepared. The judge found that the photographs taken and the description given accorded with remarkable accuracy with Mr Worsell's description in his evidence of the hole with which he had dealt. The agreed note of the evidence reads as follows:

None of those findings of fact is, in my judgment, assailable. It is an important plank in the appeal of the Royal British Legion that the judge should not have found the hole in which Mrs Cole tripped was the maypole hole.

We know what the maypole hole was like because of the evidence of Mr Worsell, which was accepted by the judge. In any event his description accorded closely with the agreed description of the hole inspected on 29th April 2005. The descriptions given by Mrs Cole, Dr Cole and Mrs Sommer-Erichson, are far removed from the known form of the maypole hole. Apart from anything else, Mrs Cole's size 7 shoe could not have gone straight down the hole as alleged. On the other hand, the accident happened indisputably in the vicinity of the maypole hole and there was no evidence of the existence of any other hole. The judge analysed the position thus, referring in particular to Mrs Cole, Dr Cole and Mrs Sommer-Erichson:

The judge found that the hole had been inadequately refilled following the 1999 fête. The fifth defendants were therefore in breach of their common law duty of care to Mrs Cole and their breach had caused her injury, although he did not make any specific finding as to causation.

The case of Mrs Cole was advanced at trial as common law negligence. It was conceded that the Occupiers' Liability Act did not apply. It is not entirely clear to me why this concession was made, but it seems to me that the standard of care required of the fifth defendant is no different, and if the case would have succeeded under the Occupiers' Liability Act it would also succeed under common law negligence.

The judge's findings against the fifth defendant begin at paragraph 82 of his judgment. He said:

The judge then referred back to the evidence of the 1999 fête where he had said this, at paragraph 31 of his judgment and I read only the material parts:

Although neither party's case was advanced on the basis that Mr Gray filled in the hole as he said, that was his evidence and the judge was entitled to accept it.

The judge then continued at paragraph 83 and following in these terms:

In the last sentence of paragraph 86, which I have read, the judge said:

The thrust of Mr Cole's evidence -- and he was a member of the British Legion -- was to the effect that after the fête it was all hands to the pump and everyone got on with what was needed to be done to clear up. True, the method of infill that he used was different from what had been done in previous years; but that did not matter if the job was adequate. Nor did it matter if no one on behalf of the fifth defendants had instigated or operated the same system as before.

In my judgment, there was no evidential basis for concluding that the fifth defendants had breached their duty of care to the claimant. The fact that she tripped in the hole 21 months after it had been infilled does not, without more, make the infill inadequate. There is no evidence that the hole was exposed at any time prior to the accident. Mr Pocock, who mowed the green, did not see it when he mowed it just four days before. The green was in regular use. There were other functions in the vicinity of the war memorial, quite apart from the fact that people regularly walked across the green or played upon it. The longer the hole was exposed before the accident, the more likely it was that someone would have noticed it. The inference, in my judgment, is that the hole only became exposed relatively shortly before the accident. There is no evidence how the hole became exposed, although I suppose that the most likely explanation is that children playing were responsible for doing so.

The judge does not appear to have considered causation, and in particular whether any inadequate infilling of the hole was causative of the claimant's accident. It seems to me that the true cause of the accident was the removal by some unidentified person or persons of the plug applied by Mr Gray. Once the judge had accepted, as he did, that Mr Gray infilled the hole in 1999 as Mr Gray described, that was the death knell to Mrs Cole's claim against the fifth defendants. In my judgment, the fifth defendant is not proved to have been negligent and, albeit with great sympathy for Mrs Cole, I would allow the appeal of the fifth defendants.

Mr Swirsky, for the claimant, submits that if the fifth defendants are not liable, then the first defendant, as the owner and occupier of the village green, is. Here, he puts his claim under the Occupiers Liability Act 1957, submitting that there is a more onerous obligation on the first defendant than at common law. I do not accept this. Section 2(2) of the Occupiers' Liability Act 1957 provides as follows:

Even assuming the claimant could overcome the difficulties in law to establish that she was a visitor and that the first defendant was an occupier -- difficulties which we have not even begun to consider on this appeal -- it seems to me that the judge's findings at paragraph 80 of his judgment are fatal to Mrs Cole's claim. The judge said:

I cannot leave this case without returning to the claimant's unfortunate and serious injury. The common law of negligence requires causative fault to be proved against a defendant before damages can be recovered. The standard of care is that which is reasonable in all the circumstances. Accidents happen, and sometimes they are what can be described as pure accidents in the sense that the victim cannot recover damages for the resulting injury because fault cannot be established. If the law were to set a higher standard of care than that which is reasonable in cases such as the present, the consequences would quickly become inhibited. There would be no fêtes, no maypole dancing and none of the activities that have come to be associated with the English village green for fear of what might conceivably go wrong.

I would allow the fifth defendant's appeal and dismiss the claimant's appeal against the first defendant.

LORD JUSTICE LAWS: I would allow the fifth defendant's appeal and dismiss the claimant's appeal against the judge's dismissal of her claim against the first defendant for all the reasons given by my Lord.

This lady was badly injured and anyone knowing the facts will be bound to have sympathy for her. But the law imposes no absolute duty in circumstances like this to keep the area of land in question safe. I would respectfully wish to emphasise what my Lord has said about the potential ill consequences of setting the duty of care at too high a level.

SIR IGOR JUDGE: I also agree. I shall add something of my own, both because we are disagreeing with the learned judge's conclusion and because there is no doubt that Mrs Cole suffered a most distressing injury as she walked across the village green on 9th April 2001.

Her leg was caught, as the judge found, in the hole originally created to hold the maypole. It was, I emphasise, a hole, not simply an indentation or unevenness of the surface of the village green. The accident was plainly not her fault. The question is whether it was caused by any fault or neglect either by the Royal British Legion or the owner of the green, using that phrase compendiously.

The annual maypole celebration, like so many similar occasions in villages up and down the country, brought the village community together. In the photographs we have been shown, the intensity of concentration on the children's faces as they wait their turn to dance round the maypole can be seen. The proud smiles of their families watching them can also be seen. On these days in the villages up and down the country, general happiness and good fellowship abound. These occasions do not happen by accident. There is always a group of people in the village who come together to prepare for and make the arrangements for the day. Here, among others, the Royal British Legion and the Brownies, and no doubt many others all made their contributions, although formally, the Royal British Legion was responsible for the organisation.

After the fête was over, Brown Owl and her husband saw to it that the hole made by the maypole was filled. In the context which we are considering, it really did not matter tuppence whether they were acting as agents for the Royal British Legion or not. Formal, legal relationships play no part in arrangements like these. They are informal village days. Everyone just pulls together and does whatever is needed. Brown owl plainly had in mind the possible risks of leaving an open hole in the green, and that is precisely why she arranged for it to be filled before she left the scene.

A day or two later, because he was a little troubled about whether the hole had in fact been as well filled as it perhaps might have been, an elderly war veteran, also living in the village, now retired from his profession as an architect, dug up the hole, using his souvenir bayonet for a purpose for which it was not originally intended but for which it was no doubt very highly effective. He then set about to fill the hole and make it level with the surface of the green. Again, there was no formality about this. He happened to be a member of the Royal British Legion, but in reality he was just another member of the village community making his own contribution to its wellbeing and safety.

So by dint of the efforts of these two individuals the hole was properly filled or closed off. The job was done. The village green was safe, made safe by people in the village taking ordinary sensible precautions.

Thereafter, quite apart from the to and fro of pedestrians walking across the green, the annual cycle of events continued. Later that year the cheery, happy celebration of the maypole dancing gave way to the darker solemnity of Remembrance Day at the War Memorial, just a few yards away from where the maypole had been standing in the summer. Despite endless activity on the green, no one divined any problem with the original site of the maypole hole. Then some 21 months or so after it had been repaired Mrs Cole's unfortunate accident occurred.

Now, speaking for myself, there is no doubt that if the hole had been irresponsibly left as a dangerous hazard after the fête, those responsible would have been liable to Mrs Cole, or indeed to anyone else who may have sustained the kind of injury which she sustained when her leg went into the hole. However, the reality is that it was not so left; and the fact that the original hole became a hazard very much later in circumstances which are entirely uncertain but which, for the reasons given by my Lord, Scott Baker LJ, plainly occurred very shortly before her accident, demonstrates that it is not possible to establish that the accident was caused by the negligence of the Royal British Legion or the landowner. So, sympathetic as I am to Mrs Cole for the injury sustained, I entirely agree with the judgment given by my Lord, Scott Baker LJ, and the reasons he has given why the appeal by the Royal British Legion should be allowed and the appeal by Mrs Cole against the landowner should be rejected.

SIR IGOR JUDGE: There is force in the submission that we should approach the issue of costs on an issue basis. We have reflected on the principle in the context of the way in which the litigation has been conducted. Our conclusion in relation to the fifth defendant's cost is that there should be no order for costs below, but that the appellant should pay one-third of the fifth defendant's costs of the appeal. As to the remaining defendants, our judgment is that the costs of the appeal in relation to each of them should be paid by the appellant. Interim payment on account of costs of £20,000 is to be paid back to the Legion's solicitors.