NEGLIGENCE ? Duty of care to whom? ? Visitor ? Ancient horse fair held on site owned in part by town council where horses inadequately segregated from members of public ? First claimant severely injured by kick from untethered horse ? Second and third claimants suffering psychological injury ? Whether town council under duty of care to ensure public liability insurance arranged in respect of negligent acts or omissions by participants in fair ? Whether town council negligently failed to ensure public liability insurance arranged against risk of injury to members of public visiting fair ? Whether failure to effect insurance causative of claimants? loss

CA: Lord Neuberger of Abbotsbury MR, Jacob, Toulson LJJ: 9 Dec 2009

A local council did not owe a duty of care to claimants to arrange public liability insurance to cover the risk of injury occurring at a long-established horse fair taking place on land part of which it owned, nor to ensure safe segregation and supervision of tethered horses.
The Court of Appeal so held, allowing the appeal of the defendant, Appleby-in-Westmorland Town Council, against the decision of Mr Recorder Storey QC in the Middlesbrough County Court on 2 March 2009 that the defendant was liable to the claimants, Geoffrey, Geraldine and Natalie Glaister, for negligent failure to ensure that public liability insurance was arranged to cover the circumstances of the claimants? injuries.
TOULSON LJ said that the general policy of the law did not extend to holding a defendant legally to blame for injury to a claimant caused by the negligence of a third party on the ground that the defendant could have prevented it. That was a starting point. There were many cases where such liability might be established, usually where either a particular relationship between the claimant and the defendant placed the defendant under a duty of care for the safety of the claimant or a particular relationship between the defendant and the third person was such that the defendant should carry a responsibility to protect others against the conduct of the third person. For the claimants it was suggested that the nature of the particular fair made the present case unique, but the potential significance of the arguments put forward was not so limited. Many parish, town or city councils, county councils or regional authorities tried in different ways to encourage and support tourism in their area (not as occupiers and under a statutory duty of care to visitors). In many villages, towns and cities there were annual festivals of one kind or another. They varied in size from the small church fete or village show to big carnivals. His Lordship rejected the idea that those bodies, public or private, which tried to encourage attendance at such events or undertook some responsibility in relation to them thereby exposed themselves to legal liability for the negligence of other bodies participating in the event. That would act as a deterrent to those who freely gave their time and energies to the encouragement of such events, which would impoverish our community life. The claim was for economic loss alleged to have been suffered as a result of the absence of a public liability policy which the defendant could have taken steps to ensure was in place. That was a novel claim. The nearest case was Gwilliam v West Hertfordshire Hospitals NHS Trust [2003] QB 443, a difficult case. The present case did not resemble any other category of case in which liability had been established, so as to found an argument by analogy. There was no special relationship between the defendant and the many tens of thousands of visitors to the fair, including the claimants. There was no sound basis for saying that public policy militated in favour of the duty of care the recorder found was owed by the defendant.
JACOB LJ agreed. LORD NEUBERGER OF ABBOTSBURY MR delivered a concurring judgment.
Appearances: Michael Kent QC and Steven Snowden (Donnelly McArdle Adamson) for the defendant; Philip Havers QC and Paul Kirtley (Crutes LLP) for the claimants.
Reported by: Susan Denny, barrister