Since the decomposed remains of a snail were found in a bottle of ginger beer in a Paisley cafe in 1928 (the famous case of Donoghue v Stevenson  All ER Rep 1, which underpins the modern law of negligence) we have all been expected to take reasonable care not to injure our ‘neighbours’. And ‘neighbours’, of course, are not just ‘them as lives next door’. As Lord Atkin said in Donoghue, neighbours for these purposes means those ‘who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question’.
To found an action for negligence a duty of care must first be established as having been owed by the prospective defendant to the prospective claimant. In considering whether such duty of care exists the courts will weigh three questions. Was the damage foreseeable? Was there a relationship of proximity between the parties? And would the imposition of a duty be fair, just and reasonable?
A swing too far
Fast forwarding to the present era, there was no breach of the duty of care when, during a school golf lesson in October 2007, a 12-year-old pupil (Samuel Hammersley-Gonsalves) sustained a facial injury when struck by a golf club wielded by another pupil (Matthew Wilkes). This was the 13 July Court of Appeal decision in Hammersley-Gonsalves v Redcar and Cleveland Borough Council  EWCA Civ 1135, the leading judgment in which was given by Pill LJ (Rimer and Black LJJ concurring).
At first instance the judge had found against the school in respect of the incident, on the basis (among other things) that the teacher in question (Mr Fowle) could not see what was going on at the time because he was at the back of the group and saw no one taking a swing until the unfortunate action in question when there was no time to shout ‘Stop!’. The judge had consequently taken the view that, despite the previous history of good behaviour of the golf lesson group ‘not to see what the pupils were doing and whether they were fulfilling instructions given, bearing in mind their age… is, in my judgment, an inadequate standard of supervision and care’. Negligence was therefore found.
Unfortunate but not negligent
Fortunately for the school the Court of Appeal disagreed. While Pill LJ accepted the judge’s findings that the teacher could not see the actions of every pupil at every moment, he questioned whether that justifies a finding that the teacher was negligent. Pill LJ did not consider that a lack of adequate or proper supervision had been established: ‘The boys were 11 to 12 years old, had had previous golf instruction, were well-behaved generally and on this occasion. There is no background of bad behaviour. The action of Matthew was wholly unexpected. I do not consider that Mr Fowle’s failure to see the quick and unexpected swing gives rise to a finding of negligence against him. He could not be expected to see every action of every member of the group, wherever he positioned himself.’
Neither was the staffing ratio (one teacher to 22 children) unreasonable in the circumstances – it did not fall below the standard reasonably required. And, so Pill LJ noted, there had been no finding that on a balance of probabilities action by the teacher would have prevented the accident.
Schools and others tasked with managing potentially hazardous activities will be relieved that the Court of Appeal was able to view the duty of care through the prism of pragmatic reality. That of course is not to diminish the nature or scope of the duty. It is merely to ensure that the ‘fair, just and reasonable’ test admits only those actions which evidence a failure to take such care as could reasonably be expected in the particular circumstances.
Root of the issue
Foreseeability is key in establishing liability for negligence. If a risk cannot reasonably be foreseen it would be unjust to impose liability. The seminal case in this area is the Privy Council decision in Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty  1 AC 617, where liability was established in respect of a careless oil spill on to Sydney Harbour in which the oil ignited causing extensive damage. Lord Reid indicated that if a real risk was identified (in the sense of one which would occur to a reasonable person in that position) which would not be brushed aside as far-fetched, then a reasonable person ‘would not neglect such a risk if action to eliminate it presented no difficulty, involved no disadvantage, and required no expense’.
For, as Lord Reid had earlier observed, ‘a person must be regarded as negligent if he does not take steps to eliminate a risk which he knows, or ought to know, is a real risk and not a mere possibility which would never influence the mind of a reasonable man’.
Lord Reid had also mentioned the social utility of an activity as a potentially relevant factor. This was a strand picked up more recently by Lord Hoffmann in Tomlinson v Congleton Borough Council  UKHL 47 (where the local authority was not found to be liable for the catastrophic injuries sustained by the claimant when he had dived into a lake formed in a disused quarry in the council’s country park).
Lord Hoffmann said: ‘The question of what amounts to "such care as in all the circumstances of the case is reasonable" depends upon assessing, as in the case of common law negligence, 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. These factors have to be balanced against each other.’
This balance was highlighted in the 13 July decision of Berent v Family Mosaic Housing and London Borough of Islington  EWCA Civ 961 in the context of tree root damage. A housing association and a local authority were found not to be liable for certain structural damage caused by tree root soil dessication, ‘given the state of the defendants’ knowledge as to the damage caused… the extent to which the trees were implicated and the availability of alternative remedial measures’. So the structural damage was found not to have been reasonably foreseeable at the material time.
However, the local authority was less fortunate in Robbins v London Borough of Bexley  EWHC 2257 (TCC) on 16 August in the Technology and Construction Court (Edwards-Stuart J). The council had been on notice for some years that poplar trees in its park adjacent to residential properties could damage the rear extensions of certain properties. The council could therefore ‘reasonably have been expected to respond to its awareness of the foreseeable risk of damage being caused by the poplars by embarking on a programme of crown reduction of the trees, particularly of those trees that were within 35m of a house’.
As the judge noted, this decision was founded on ‘well-settled principles relating to foreseeability and causation’.
For many local government lawyers, tales of snails in ginger beer and of oil in harbours are mere shades of long-dead law school essay and examination nightmares. But recent cases show how relevant these canonic principles remain. In times when council budgets are being pruned, many in local government may think it completely off the tree to spend vital resources on active tree management. However, Robbins may indicate how time-consuming and expensive it can be not to take action when the likelihood of damage becomes ‘reasonably foreseeable’ in view of knowledge or information available to the authority. The time, hassle and cost involved in defending such actions is likely to be about as appetising as a long, cool, snail-laced ginger beer.
Dr Nicholas Dobson is a senior consultant with Pannone specialising in local and public law. He is also communications officer for the Association of Council Secretaries and Solicitors