B e f o r e :
LORD JUSTICE NEILL
LORD JUSTICE NICHOLLS
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LORD JUSTICE BINGHAM
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JOHN MICHAEL WHITE
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THE COUNCIL OF THE CITY AND DISTRICT OF ST. ALBANS
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Transcript of the Shorthand Notes of the Association of Official Shorthandwriters Limited, Room 392, Royal Courts of Justice, and 2 New Square, Lincoln's Inn, London, WC2A 3RU.)
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MR LAWRENCE WEST, instructed by Messrs Robbins Olivey & Blake Lapthorn (London Agents for Messrs Clark & Clark, St. Albans), appeared for the Appellant (Plaintiff).
MR ARTHUR W. STEVENSON, instructed by Messrs Gepp & Sons (Chelmsford), appeared for the Respondents (Defendants).
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HTML VERSION OF JUDGMENT
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LORD JUSTICE NEILL: This is an appeal by Mr John Michael White from the order dated 10th April 1989 of His Honour Judge Lovegrove sitting as an additional judge of the Queen's Bench Division. By his order the judge dismissed Mr White's action for damages for personal injuries sustained by him at about midnight on 30th November 1984. In the action Mr White alleges that his injuries and the consequential loss suffered by him were caused by a breach by the respondents, the Council of the City and District of St. Albans, of the duty owed to him under section 1 of the Occupiers' Liability Act 1984. The 1984 Act came into force on 13th May 1984, only a few months before the events with which this appeal is concerned. It was passed to amend the law as to the liability of persons as occupiers of premises for injury suffered by persons other than their visitors.
The issues raised on this appeal are, firstly, whether the Council are under any liability at all to Mr White; secondly, if so, whether Mr White was guilty of any, and if so what, contributory negligence, and, thirdly, the quantum of damages. We have heard argument directed to the question of liability and contributory negligence, and I will deal first with the issue of liability.
On the evening of 30th November 1984 Mr White went from his home in Luton to a concert in the City Hall in the centre of St. Albans. He there met two young ladies whom he knew, and when the concert ended at or shortly after 11.15 in the evening the three of them made some arrangements to take a taxi to the station so that they could go home by train. Before they left, however, it appears that they met a Mr Stanbrook who was another acquaintance of Mr White. Mr Stanbrook offered them a lift home in his car as he too lived in Luton. They accepted his offer, but they had to wait a little time as Mr Stanbrook had some work to finish in the City Hall. Finally, at about midnight, they set off across the road to the car park which lies not far from the City Hall. The plan at page 42 of the documents before us shows the layout of the area with which we are concerned.
Mr White did not know the area and therefore to find the way to the car park it was necessary for him to follow Mr Stanbrook; the two young ladies came along behind. In order to reach the car park it was necessary to cross a narrow road lying to the east of the City Hall, and it would have been perfectly simple to have approached the car park, which was a two-level car park, and gain access to it through the ordinary entrance. But Mr Stanbrook seemed to think that he could take a shorter route and he therefore took his party across the road and then towards the entrance of a council building that lies, as is apparent from the plan, between the City Hall and the two-level car park. That building, which is shown clearly in the top photograph on page 26 of the bundle and which was referred to in the course of the hearing as the "Vic Hallam" building, was built on a piece of land which was intended for some larger building to be put on it, but it appears to be a single storey building with another building connected to it which is shown on the plan as a "temporary drawing office".
Mr Stanbrook and Mr White and the two ladies went up the ramp, which is to be seen in the photograph at the bottom of page 26. This photograph shows the door, the entrance to the building, more or less in the middle of the photograph. They then turned to the right and went under a horizontal white bar which is clearly shown in the photograph at the top of page 27. Mr White with the ladies behind him followed Mr Stanbrook. It appears that they then went round the side of the Vic Hallam building towards the car park. As he reached the corner where the side and the back of the building joined Mr White came to a gap. That gap is shown clearly in the photograph at page 28. It is a gap which we understand is about one metre wide and forms a channel between the plinth on which the Vic Hallam building stands and the two-storey car park which Mr Stanbrook and the others were seeking to reach. The gap is also shown in a photograph at page 30 which was taken from near the bottom of the channel or passageway between the two buildings. According to the evidence, it seems to have been designed as a fire break between the two buildings.
As is apparent from the photograph at page 28, on the Vic Hallam side of the gap there is a series of what appear to be concreted posts standing at intervals. On the other side by the car park there is a low wall on top of which there is some horizontal fencing.
Some way down the back of the building following the line of the channel there is a narrow bridge in the form of a concrete plank. The bridge is shown in photograph 29. It was fenced off on the car park side by a wire fence to prevent access from that side on to the bridge and to the back of the Vic Hallam building. Photograph 30 also shows from ground level the position of that little bridge.
It was a dark night and plainly this part of the land was not well lit; it was also raining. Mr White got to the edge, not realising that there was this gap between the plinth on which the Vic Hallam building stood and the car park. He fell over the edge and suffered quite serious injuries. It is in respect of those injuries and the consequential loss which he has suffered that he has brought these proceedings against the City Council. The basis of his claim is the allegation that the Council were in breach of their duty under the 1984 Act. In order to consider the claim it is necessary to turn at once to the provisions of the 1984 Act.
Section 1 is the relevant section. The scheme of that section is as follows. In subsection (1) it is provided that the rules under the section are to take the place of the rules at common law both (a) "to determine whether any duty is owed by a person as occupier of premises to persons other than his visitors in respect of any risk of their suffering injury on the premises by reason of any danger due to the state of the premises or to things done or omitted to be done on them"; and also (b) to determine "if so, what that duty is."
It is unnecessary for the purposes of this appeal to refer to subsection (2) which contains provisions stating who is to be treated as an occupier of premises. It is accepted that the Council were occupiers of all the relevant land and buildings on this occasion. But it is necessary to read subsections (3), (4) and (5):
"(3) An occupier of premises owes a duty to another (not being his visitor) in respect of any such risk as is referred to in subsection (1) above if-
(a) he is aware of the danger or has reasonable grounds to believe that it exists;
(b) he knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger (in either case, whether the other has lawful authority for being in that vicinity or not); and (c) the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection.
(4) Where, by virtue of this section, an occupier of premises owes a duty to another in respect of such a risk, the duty is to take such care as is reasonable in all the circumstances of the case to see that he does not suffer injury on the premises by reason of the danger concerned.
(5) Any duty owed by virtue of this section in respect of a risk may, in an appropriate case, be discharged by taking such steps as are reasonable in all the circumstances of the case to give warning of the danger concerned or to discourage persons from incurring the risk."
We can see, therefore, the scheme of those last three subsections. Subsection (3) contains the provisions which are relevant for the purpose of determining whether the occupier of the premises owes any duty at all to the person who is described as "another (not being his visitor)". Subsection (4) sets out the nature and extent of the duty once it has been established that the person on the premises is a person to whom a duty is owed. Subsection (5) contains provisions which may, in certain circumstances, apply whereby the occupier may be able to discharge his duty by taking such steps as are reasonable in all the circumstances, either to give warning of the danger or, alternatively, to discourage persons from incurring the risk. The learned judge in his judgment dealt first with the question of duty. He started with s1(3)(a). He considered the facts and came to the conclusion first that there was this gap or channel between the two buildings which did constitute a danger, and secondly that the Council were aware of the danger or had reasonable grounds to believe that it existed. Plainly there is no appeal against that finding by the learned judge.
He then turned to s1(3)(b), which is the paragraph to which our attention has been particularly directed and about which the argument has really revolved in this case. The learned judge said this: "... the question is whether the Defendants had reasonable grounds to believe that the Plaintiff was or might come in that vicinity", because it was accepted that the Council had no actual knowledge that he was in the vicinity or might come in the vicinity. The judge continued at page 11 of his judgment:
"The levelled surface was fenced off in all places from where access could easily be obtained to it, either by horizontal bars on three sides or, as I find to be the case, chain-link fencing from the open car park. Always excepting emergencies such as policemen or firemen going on the levelled surface in the course of duty, it is difficult to think why anyone would go on that roof by night except for purposes of some criminal activity such as theft or for access to the open car park. There were several other proper and orthodox means of access to the car park. The levelled surface presented a short-cut but it did not greatly reduce the journey from the direction of the City Hall. There is no evidence that the levelled surface was originally used as a short-cut, or, if it was, that the Defendants knew this.
"It is submitted on behalf of the Plaintiff that the horizontal fencing and the chain-link fencing may show that people might try to gain access to the open car park in this way. In my judgment, the purpose of the fencing was to deter people from going on to the levelled surface from the highway. Whether one adopts a subjective or objective approach, I do not think the Defendants had reasonable or any grounds to believe that anyone would use the levelled surface as a short-cut to the car park, and so come into the vicinity of the danger."
In his detailed and, if I may say so, very helpful submissions Mr West, on behalf of Mr White the appellant, has argued that in two respects the judge has fallen into error in the conclusion which he reached on paragraph (b). He submits, first of all, that if you look at these premises and see where the car park lies in relation to the City Hall and notice that this was indeed a route which could very easily be taken to get from the City Hall to the car park, the layout of the premises by itself could lead to the inference that the Council might have reasonable grounds to believe that persons such as Mr White might come into the vicinity of the danger. Secondly he says, and this is really the main thrust of his submissions, that once it is established that precautions are being taken to guard against or to stop people getting to a particular area of land, then it follows logically that the person who has taken those precautions must have reasonable grounds for believing that someone is likely to come into the vicinity of a danger, if the danger is on the premises and in the area around which the precautions have been erected. So he submits that at the stage of considering s1(3)(b), that is whether or not this requirement for the existence of a duty has been satisfied, one does not consider how satisfactory the precautions may be. The nature of the precautions is something to be examined under subsection (4). It was on that aspect of the case, said Mr West, that the learned judge went wrong. Furthermore, he developed that argument by contending that you have to test the question of whether or not a duty exists by reference to the moment when a building has been completed and when those who are responsible for the safety of anybody coming to the building or premises have to consider what precautions they should take.
For my part I do not accept that the way in which the case was put by Mr West is correct. It seems to me that the question to be considered under subsection (3}(b) must be answered by looking at the actual state of affairs on the ground at the time when the injury is suffered. The question is: had the occupier of the premises reasonable grounds to believe that somebody such as Mr White might come into the vicinity of the danger? In this case, when one looks at the facts, one sees that at one end of the route they were taking there was a wire fence erected on the side by the car park. At the other end, to gain access to the route which they followed, one had to get underneath a wooden barrier. It seems to me, in the absence of any evidence whatever of the route being taken on other occasions, impossible to contend that the Council had reasonable grounds for believing that Mr White might come into the vicinity of the danger and were therefore under a duty. This was private land. It was surrounded, as the photographs demonstrate, by a three-tiered wooden fence. Moreover, the area at the back of the Vic Hallam site (and that is really what we are concerned with) was protected by this wire fence, and to deter people from approaching the area from the front there was this single wooden bar. To my mind, the judge was wholly justified in coming to the conclusion that the Council had no reasonable grounds for believing that Mr White on that occasion might come into the vicinity of this gap or channel into which, unhappily, he fell.
It therefore becomes unnecessary to express a conclusion on the other aspects of the case, though I, for my part, would not agree with the decision which the judge came to on section t(3)(c). It seems to me that had the Council been aware of the danger and known that someone might come into the vicinity, then they might reasonably have been expected to offer some protection against that danger to a trespasser. But it is not necessary to go further into that aspect of the case because I am quite satisfied that the plaintiff's claim must fail because he has not established that the Council, in the circumstances, had reasonable grounds for believing that he might come into the vicinity of the danger.
On that short ground I, for my part, would dismiss the appeal.
LORD JUSTICE NICHOLLS: I agree. The plaintiff's argument concentrated on the judge's conclusion on the issue raised by section 1(3)(b) of the Act. As applied to the circumstances of this case that issue was: did the defendants know or have reasonable grounds to believe that persons such as the plaintiff, taking an alternative route to the car park from the highway, might come into the vicinity of this dangerous gap from its unfenced side? That is a question of fact and the judge answered that question in the negative.
In reaching that conclusion the judge found that the purpose of the horizontal fencing was to deter people going to the levelled surface from the highway. Basing himself essentially on that finding, and on the existence of the wall and fencing on the car park side of the gap, Mr West advanced an argument that, having taken these precautions, the defendants must fail on subsection (3)(b). By seeking to deter people from going on to the levelled area from the highway because, so it is to be assumed, of the existence of the danger of which the defendants were aware, the defendants thereby showed that they knew people might go into the vicinity of the danger. The adequacy of the fencing precautions, so it was submitted, is a matter to be evaluated when determining whether the defendants have discharged their duty under subsection (4). The adequacy of the precautions taken with regard to fencing does not fall to be considered in the context of subsection (3)(b).
I cannot accept this argument. Under the Act three ingredients must exist before an occupier owes a duty under section 1. One of these ingredients is that set out in subsection (3)(b). If, taking into account all the circumstances, the occupier does not know or have reasonable grounds to believe that other persons are or may come into the vicinity of the danger, then the statutory duty does not exist. All the circumstances must include matters such as any fencing which separates the vicinity of the danger from surrounding areas. Here, the existence of the horizontal fencing of the Vic Hallam building made it plain that unauthorised persons were to keep off the levelled surface. Of course that fencing, and in particular the single bar fence at the top of the slope beside the entrance to the Vic Hallam building, did not present any sort of obstacle to any able-bodied person minded to get over it. But, and this is a crucial factual feature in this case, there was no evidence that the levelled surface was used as a short cut to the car park or, indeed, by any unauthorised person for any other purpose. That being so, on the facts, subsection (3)(b) was not satisfied in this case.
I too would dismiss this appeal.
LORD JUSTICE BINGHAM: I agree. In my judgment the case turns on whether the plaintiff could satisfy the requirements of section 1(3)(b) of the Act. Section 1(3)(b) required the judge to consider and answer four questions:
(1) Did the defendants know that the plaintiff was in the vicinity of the danger concerned?
(2) Did the defendants have reasonable grounds to believe that the plaintiff was in the vicinity of the danger concerned?
(3) Did the defendants know that the plaintiff might come into the vicinity of the danger?
(4) Did the defendants have reasonable grounds to believe that the plaintiff might come into the vicinity of the danger?
The learned judge clearly posed and considered questions (1) and (2) and answered them in the negative, as I understand to be conceded, correctly. He also was correct in my judgment to answer questions (3) and (4) in the negative, and I draw attention particularly to the findings that my Lord has already recited, first at page 12B - "There is no evidence that the levelled surface was originally used as a short-cut, or, if it was, that the Defendants knew this", and secondly the finding at page 12D - "Whether one adopts a subjective or objective approach, I do not think the Defendants had reasonable or any grounds to believe that anyone would use the levelled surface as a short-cut to the car park, and so come into the vicinity of the danger." There was, in short, nothing to suggest that the defendants knew or had reason to believe that the plaintiff or any other trespasser might use the flat surface as a thoroughfare. There is no evidence that the roof ever had been so used otherwise than on this occasion unless one can properly infer that Mr Stanbrook had used it before. I am, for my part, entirely unpersuaded that the defendants' conduct in fencing off the levelled area showed that section 1(3)(b) was satisfied. It has to be borne in mind that this section is concerned with the liability of an occupier to trespassers. So read, the section follows, as I think, a logical and sensible progression. One can readily accept that an occupier should owe a duty of care towards trespassers if his premises are, to his knowledge, dangerous and he knows or ought to know that trespassers make use of his land. But it is, I think, quite otherwise if the occupier does not know and has no reason to know that trespassers do or are at all likely to enter his land. That was, on the evidence, the position here, and I accordingly agree both with the trial judge and with my Lords that the plaintiff failed to discharge the burden which lay on him under section 3(1)(b) and that the appeal, like the claim, must accordingly fail.
Order: Appeal dismissed; application for costs against the Legal Aid Fund adjourned for ten weeks; legal aid taxation of plaintiff's costs.
