By David Marshall, Anthony Gold Solicitors, London


The village green preservation society

'We are the village green preservation society... God save strawberry jam and all the different varieties/Preserving the old ways from being abused/ Protecting the new ways for me and for you/What more can we do... God save the village green.'



The Court of Appeal did not quote Ray Davies and the Kinks' affectionate parody of English country life in Cole v Davis-Gilbert and ors [2007] EWCA Civ 396, but it might as well have done. While crossing East Dean village green, the claimant fell and suffered a serious spiral fracture of the tibia. The three defendants to the subsequent claim were the legal owner of the village green, the local council and the Royal British Legion, which was responsible for running the annual fete (which sometimes included maypole dancing).



The British Legion denied that it was the maypole hole into which the claimant had fallen. The court considered the history of maypole dancing in the village, which had been revived after the 1977 Silver Jubilee celebrations. 'Brown Owl' had given evidence that dancing around a proper maypole had ended in 1999 because 'there were not enough Brownies'. 'Some kind of cardboard pole' had been used instead in 2000, which had been 'something of a disaster'. Another witness known as 'the coastguard' had described the construction and location of the maypole hole. Then, after the evidence had been given, solicitors, counsel and the coastguard carried out a further inspection. The trial judge and the Court of Appeal were in no doubt that it was the maypole hole into which the claimant had fallen.



The claim against the council does not appear to have been pursued. The judge found - and the Court of Appeal concurred - that the legal owner could not be liable, even if it could in law have been held to be 'occupiers', because there was no evidence that it was or should have been aware that the hole had become exposed. However, the trial judge found the British Legion to be liable and awarded £150,000 in compensation.



The coastguard had last filled the hole after the fete in 1998. After the fete of 1999, Brown Owl had removed the maypole, done her best to fill it temporarily and covered the hole with a chair. Someone told her he would 'finish it off later' but she could not remember who. And so, as the court put it, 'a day or two later, because he was a little troubled about whether the hole had been as well filled as perhaps it might have been, an elderly war veteran... dug up the hole, using his souvenir bayonet... he then set about to fill the hole. There was no formality about this... he was just another member of the village community making his own contribution to its well-being and safety'. The trial judge found that the evidence of the veteran, who was aged 80 in 1999 and 85 at trial, was 'undoubtedly vague and in some cases completely wrong', but he did find that the veteran had probably refilled the hole in 1999.



The trial judge found that the veteran's efforts were 'inadequate because the [Legion] had breached its duty'. But, as the Court of Appeal said, this is a non sequitur. The mere fact that the claimant fell 21 months later did not of itself make the infill unsatisfactory. The court pointed out that '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... despite endless activity on the green, no one divined any problem'. The judge had not considered causation. There was no evidence that the hole had become exposed until just before the accident and no evidence that it was a result of inadequate infilling by the veteran. The Court of Appeal considered that 'the most likely explanation is that children playing were responsible for doing so'.



Lord Justice Scott Baker concluded by saying: 'If the law courts were to set a higher standard of care than what is reasonable, the consequences would quickly be felt. There would be no fetes, no maypole dancing and no activities that have come to be a part of the English village green for fear of what might go wrong.'



The Daily Mail on 2 March described the judgment as 'an outbreak of common sense' whereby 'judges finally took a stand over the compensation culture yesterday, warning that it threatened to destroy the British way of life... MPs and campaigners last night said the ruling should set a precedent for courts across the land - which have ordered payments worth hundreds of millions of pounds against schools, hospitals and playgroups, much of it pocketed by solicitors'.



Matthew Elliott, chief executive of the TaxPayers Alliance, is reported as saying: 'This ruling will hopefully set a strong precedent for the more junior judges who have taken leave of their senses. It is a victory for common sense that will benefit everyone except litigious lawyers.'



However, the Court of Appeal had done little more than restate basic principles of the tort of negligence: that the burden of proof is on the claimant to show that there had been a breach of the duty of care and that this breach had caused the loss and damage complained of. Sir Igor Judge said: 'Speaking for myself, there is no doubt that if the hole had been irresponsibly left as a dangerous hazard after the fete, those responsible would have been liable.'



Section 1 of the Compensation Act 2006 was not engaged because its enactment post-dated the events and indeed the trial. But despite the florid language, what this judgment actually shows is that, as the government said at the time, the Act did not 'change the law' - the courts are already alert not to compensate for what the court described as a 'proper accident' where the claimant, even though seriously injured, cannot establish legal liability.