The village of East Dean nestles in a fold of the South Downs. It has a duck pond (in fact, several duck ponds), a forge and an excellent pub: the Tiger Inn. It also has a village green. East Dean is a traditional sort of place. It is the home of Summer Fetes, the Women’s Institute and the Royal British Legion. Jam making and Morris dancing are practically compulsory. Most years a maypole is erected near the War Memorial on the village green just in front of the pub. The children of East Dean dance to welcome the coming of Summer. This seems an apt time of year to revisit the Court of Appeal decision in Cole v Davis-Gilbert  EWCA 296. [more]
Dr and Mrs Cole of Eastbourne had a friend visiting them from Norway one April. On a lovely Spring evening they travelled by car to East Dean; they were on their way to the Tiger Inn for supper. Having parked their car they set off across the village green towards the pub. As they neared the War Memorial Mrs Cole caught her foot in a hole and fell. She suffered a very severe spiral fracture of the tibia. The hole was used to house the Maypole at the annual village fete. At the time of the accident it was uncapped after its use in a previous year. Mrs Cole sued the Royal British Legion, among other parties. It was her case that the Legion organised the annual Fete and that the Legion’s uncapped hole had caused her injuries. Mrs Cole relied on the evidence of some of the patrons of the Tiger Inn to the effect that the Maypole hole caused her accident. The Legion’s case was that Mrs Cole had not fallen as a result of the Maypole hole. However, it was also the Legion’s evidence that the hole had been filled in after being used on the last occasion prior to the accident. On appeal it was held that there was no evidential basis for a conclusion that the Legion had breached their duty of care to the Claimant. The evidence was that the hole had last been used to house a maypole some 21 months before the accident. The evidence was that the hole had then been infilled after use and it was likely that it had only become exposed – perhaps, as a result of the activities of children playing in the area – relatively shortly before the accident. Given the evidence that the hole had been infilled after use and the short period between the removal of the infill material and Mrs Cole’s accident, it was held that there was no evidence of any causative negligence on the part of the British Legion. Mrs Cole also sued the owner and occupier of the village Green. Her claim failed in this regard as well.
The factual elements of this appeal clearly appealed to certain sections of the Press. A combination of a rural setting, a War Memorial, a Maypole and an apparently unmeritorious claim was a heady mixture for some journalists (I seem to recall that the Court of Appeal decision was hailed as “A Victory for Common Sense” and “A Blow to the Compensation Culture” in the Daily Mail). The judgment of Sir Igor Judge would, with the addition of a murder, read like the narrative outline for an episode of Midsomer Murders:
“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.”
It is interesting that some activities (particularly those involving timeless rural rituals and retired war veterans wielding souvenir bayonets) can still prompt purple prose and moist-eyed observations from even the most pragmatic English Judges. It is, perhaps, unlikely that the same interest and enthusiasm would have been generated if the accident had happened on, say, Streatham Common. While Mrs Cole’s injuries were treated very sympathetically by the Court of Appeal, it is clear that her right to walk without hindrance or restraint across the village green was effectively trumped by the right of East Dean’s Brownies to dance around the Maypole each Spring.