THE HON. MR. JUSTICE PICKEN:
Introduction
- This is a tragic case. What had, no doubt, been an enjoyable day at the All England Jumping Course, Hickstead watching the Longines Royal International Horse Show ended with the Claimant, Mr Brian Lear, suffering serious spinal injuries when the ramp to his horsebox fell on him as he lowered it. The result is that Mr Lear is now, some 4½ years after the day in question, 30 July 2011, largely confined to a wheelchair with incomplete paralysis of his lower limbs and bladder/bowel dysfunction. It is impossible, in the circumstances, to feel anything but sympathy for Mr Lear. The issue which I have to determine is, however, whether either or both of the Defendants, Hickstead Ltd ('Hickstead') and W.H. Security Ltd ('WH') are liable to Mr Lear, it having been ordered that liability should be determined as a preliminary issue. In determining this issue, as will appear, there is a dispute (i) as to whether a relevant duty of care was owed by Hickstead and/or WH and (ii) if there was such a duty, as to whether there was any breach.
- On behalf of Mr Lear, Mr McCaul QC and Mr Reddiford submitted that the answers to each of these questions ought to be in the affirmative. Mr Tavares, on Hickstead's behalf, and Mr Browne QC and Mr Harris, on WH's behalf, made submissions to the contrary. For reasons which will become apparent, my main focus in this judgment will be on (i) and (ii). However, I should mention at this stage that Mr Tavares, Mr Browne QC and Mr Harris also contended that, even if their submissions were not accepted in relation to (i) and (ii), in any event, there is no liability on the part of Hickstead and WH because (iii) the damage in respect of which Mr Lear claims is too remote, (iv) this is a case in which there has been a novus actus interveniens, and (v) the principle of volenti non fit injuria applies. Lastly, if there is any liability at all, their submission was (vi) that there should be a reduction in the level of damages recoverable by Mr Lear because he was contributorily negligent.
The events giving rise to the claim
- Although I heard evidence from as many as 12 witnesses and there was also evidence in the form of a witness statement from another factual witness as well as two experts' reports, the facts of this case are largely uncontroversial and can be simply stated. I say straightaway that, as regards the witnesses who came to give oral evidence, I am quite satisfied that they were all honest and straightforward people who were doing their best to assist the Court. There were some differences between them, primarily (perhaps even exclusively) in relation to their views as to the state of horsebox parking on 30 July 2011. In particular, Captain Michael Hunt, his wife Mrs Sallyann Greenwood-Hunt and Mrs Karen Young were critical to varying degrees of the amount of space which existed for horseboxes to manoeuvre, whilst other witnesses (notably Mr Lear himself as well as his wife, Mrs Jan Lear, and their son, Peter Lear) considered that there were no such problems. It is clear, however, that these differences were merely differences of recollection.
- Mr Lear was, prior to his accident, somebody who earned his living by producing young horses and selling them as well as by building courses for show jumping and eventing competitions. He also did some training with both horses and riders. He operated as a sole trader and had done so for between 25 and 30 years, with his wife, Mrs Lear, acting as his accountant alongside her work as a strategic project manager for Mid Sussex District Council, in which capacity she carried out health and safety inspections at Hickstead (albeit not in relation to the parking arrangements). Mr and Mrs Lear's son, Peter, had worked with his father for about five years, up until the November before Mr Lear's accident, riding the horses and helping transport them to events. Sadly now, as a result of the accident, Mr Lear is unable to work and Mrs Lear, who has had to give up her job with the local authority, now acts as her husband's carer.
- Hickstead is the owner of Hickstead Showground in West Sussex and, as such, the host of one of the world's leading equestrian events, the annual Longines Royal International Horse Show, which is held over a 6-day period each July – in 2011 between 26 and 31 July. The Longines Royal International Horse Show has been running for 23 years, now attracting about 2,500 competitors and in the region of 45,000 visitors, with something like 3,000 horseboxes and trailers coming on site during the course of the show and around a thousand being accommodated at any one time in various parking areas belonging to Hickstead. Mr Edward Bunn, who (alongside his sister, Lizzie Bunn) is Hickstead's joint Managing Director, having taken over from their father, Hickstead's founder, Mr Douglas Bunn, when he died in 2009, estimated that there would have been, on average, some 10,000-15,000 horsebox/trailer movements over the forty-three years during which he had been working at Hickstead (he started when he was just 12 years old) and so, in total, in excess of 600,000 movements. This includes, as I understand it, not only the Longines Royal International Horse Show, but also the three other events which take place each year at Hickstead, namely the Hickstead Derby Meeting which takes place in June, the Hurstpierpoint College National Schools and Pony Club Championships which take place in August, and the All England Jumping Championships which take place in September. It is, however, the Longines Royal International Horse Show and the Hickstead Derby Meeting which are the larger of the events.
- WH is a company which was incorporated in 2006 when it was called JCB Security Ltd. It was set up by Mr Douglas Hinckley, a WH director and somebody who has lived at Hickstead alongside the Bunn family since a young age. Mr Hinckley had joined the police at the age of 18, before joining the army where he spent time in Iraq. After leaving the army, Mr Hinckley, who had assisted the Bunn family in running Hickstead events throughout his time in the police and in the army, during periods of leave, decided to build a business providing security and crowd management services to event organisers, recruiting as employees people with army or police experience. These services include car and horsebox parking services. Mr Hinckley explained that not only does WH provide such services to Hickstead (something which it has done each year since 2007) but the company does the same thing in relation to a number of other horse shows, including the Royal Windsor Horse Show and Blair Castle International Horse Trials in Scotland. Indeed, Mr Hinckley confirmed to Mr Tavares in cross-examination that he was not aware of any other company which, as he put it, managed more horse shows than WH has done: in the years leading up to 2011, managing the parking at 23 horse show events in 2009, and 33 events in 2010. JCB Security Ltd changed its name to WH in February 2013.
- Turning now to the day of the accident, 30 July 2011, Mr Lear drove to Hickstead from home, which is only 15-20 minutes away. Mr Lear was alone and in his 18 tonne horsebox. This was originally a road freight transporter, but it had been converted to a horse transporter by a company called Gray Horseboxes and Race Homes UK Limited in about 2009. This included a modification in respect of the hydraulic system, the original vertical tail lift being changed so that it would lift a large pivoting ramp.
- Mr Lear explained that he had two horses jumping that day: Doonaveeragh Amanda, which Mr Lear was himself going to ride and which Mr Lear had transported to the event in his horsebox; and Urlanmore Aldi, which was going to be ridden by a Mr Henry Turrell and which had been brought to the event by Mr Turrell in his horsebox. As to the competition in which Mr Lear was going to compete on Doonaveeragh Amanda, this was not going to take place until much later in the day because Mr Lear arrived shortly before midday (at about 11.55 am) and by the time of the accident he had still to compete. Indeed, Mrs Lear explained in her witness statement how, having arrived separately and by car about an hour after Mr Lear and having spent the afternoon spectating, she decided at some point after 4.00 pm "not to hang around" until about 6.00 pm when it looked as though her husband would be competing but to go home. It was at this stage that Mr Lear went and checked on his horsebox and had his accident, Mrs Lear having only just got home when she received a telephone call at about 4.45 pm to say that Mr Lear had been involved in an accident.
- Arriving at Hickstead, as demonstrated by some CCTV footage which was shown to me, Mr Lear drove his horsebox to the entrance to an area known as the Stable Field, one of several places where horseboxes were parked both in 2011 and since (as well as before). At the entrance barrier, a WH employee (although Mr Lear would not have known this at the time, the WH employee manning the entrance barrier was Mr William Seely) examined Mr Lear's pass, which was a day pass, and directed Mr Lear to another WH employee (Mr Peter Taylor, although again Mr Lear would not have known his name) who was positioned further up the road at a T-junction. It was Mr Lear's evidence that this WH employee (Mr Taylor) showed him where to park, specifically that he was told by Mr Taylor to "go through the gate to the overflow park", which was an area for parking beyond the area where, in the event, Mr Lear parked his horsebox. Mr Lear's evidence was that he asked if there was anywhere closer and that Mr Taylor looked around and said that "if you just get off the road you could park here", indicating an area which was parallel to the road and which ran around the edge of the Stable Field with a shower or toilet block behind it. Mr Lear went on to explain that he, therefore, parked in that spot, indeed that the WH employee concerned "ushered me back, when off the road, to the position I parked", which was "at right angles to all the other vehicles which were all parked the same way and all facing down the hill, away from the main area of the event".
- In fact, having studied the CCTV footage, it would appear more likely that, having been directed by Mr Taylor when at the T-junction to drive along the road to the overflow park at the end of the road, Mr Lear then stopped and spoke to another WH employee, a Mr Kenneth Culhane, who was positioned further down the road where the shower or toilet block is located, and that it was, therefore, Mr Culhane who was asked by Mr Lear whether he could park somewhere closer. Although it is not at all easy to see what happened as Mr Lear's horsebox approached the place where he parked it since the CCTV footage only shows what happened from quite some distance away and the pixellation is very poor at that distance, it nonetheless is possible to discern that Mr Lear stopped and spoke to somebody else before then moving on, even though it is not possible to see at all clearly what then happened. In these circumstances, notwithstanding that I did not hear from Mr Seely, Mr Taylor or Mr Culhane, Mr Browne QC and Mr Harris deciding, in the event, not to call them to give evidence despite their providing witness statements, I am clear that Mr Lear must have encountered a third WH employee, Mr Culhane, further down the road, and that accordingly when Mr Lear referred in his witness statement to speaking to only two WH employees (Mr Seely and Mr Taylor) he was mistaken.
- However, I am satisfied that Mr Lear was not mistaken in the evidence he gave concerning being told by a WH employee to park where he did. That employee must have been Mr Culhane. As I say, he did not give evidence before me. In his witness statement, however, whilst stating that he had no recollection of seeing or speaking to Mr Lear prior to the accident, Mr Culhane observed that, had he been aware that Mr Lear had parked his horsebox where he did, he "would have moved Mr Lear on, as he was a potential obstruction to vehicles who were parking in regulated rows on the middle road, facing south" and despite the fact that the vehicle was not causing an actual obstruction, he "would still have asked [Mr Lear] to move it to avoid setting a precedent that other trucks following him might have followed". The implication, therefore, was that Mr Culhane did not direct Mr Lear to park where he did because parking there was not permitted.
- I cannot accept that this can be right for several reasons. First, in the absence of evidence from Mr Culhane or any other witness contradicting the evidence given by Mr Lear, it would not be appropriate to conclude that what Mr Lear had to say about being directed to the place where he parked should not be accepted.
- Secondly, given the proximity of the place where Mr Culhane was located and Mr Lear's parking space, I regard it as implausible that Mr Culhane would not have noticed that Mr Lear had parked where he was. The horsebox had been there for over 4 hours by the time of Mr Lear's accident. Accordingly, even if Mr Culhane was standing in a spot where his view was obscured or if, as suggested in his witness statement, vehicles were passing between him and where Mr Lear's horsebox was parked, I struggle to see how it can really have been the case that Mr Culhane did not notice where Mr Lear had parked. This causes me to doubt the suggestion that Mr Culhane was unaware of where Mr Lear's horsebox was, and so to doubt the suggestion (made in his witness statement but not in live evidence) that Mr Lear had not been directed to park in the place that he did.
- Thirdly, if it really were the position that parking where Mr Lear parked was not permitted, then it would not only have been Mr Culhane who would have wished to prevent such parking, but other WH employees also. These would include Mr Paul Beresford, another witness who provided a witness statement but who ultimately was not called as witness, who was team leader on the day in question and who had a roving role which entailed him patrolling the parking areas on a quad bike.
- Fourthly, another horsebox driver, Mrs Lauren Faggetter, who on the day in question was parked elsewhere, in a field further to the north of Stable Field, but who was bathing her horse at a washing point only about 30 metres away from where Mr Lear had parked, stated in evidence that she had parked in "pretty much the same position" the year before. Moreover, it was Mrs Faggetter's evidence that on that occasion, in 2010, she had been told by "the security man" (in other words by a WH employee since WH was in charge of parking in 2010) that it was "fine" to park there and that somebody (again a WH employee) had directed her into position.
- Fifthly, it is to be observed that, although there is no aerial photograph of the position in 2011, there was photographic evidence of the parking during the Longines Royal International Horse Show which took place in 2014, and this shows very clearly that there were several horseboxes (each with their ramps down) in the same area where Mr Lear parked his horsebox in 2011. Clearly, therefore, it cannot be the case that horseboxes were not permitted to park in this area. Nor can it be the case, therefore, that WH employees (Mr Culhane included) regarded parking in that location as inappropriate.
- Lastly, it is significant that when Mr Hinckley was asked by Mr McCaul QC in cross-examination about where Mr Lear parked his horsebox, he accepted that "sometimes lorries will get put there". He suggested that he would not have expected that Mr Lear would have been told that he could park where he did since Mr Lear had a day pass and generally, assuming that they were allowed to park there more than temporarily, only horseboxes whose drivers had longer term passes would be allowed to park in this location, those drivers (unlike drivers with day passes) thereby having close access to the stables in the neighbouring section where they would house their horses. Mr Hinckley nonetheless was clear that he was not saying that parking where Mr Lear parked was "unacceptable", and nor was he saying that Mr Lear "would not have been given permission" to park there.
- In these circumstances, it seems to me that, as Mr McCaul QC submitted in closing, the conclusion that Mr Lear was told that he could park where he did is "inescapable". Mr Hinckley added, however, when making the point that he was not saying that Mr Lear "would not have been given permission" to park where he did, that there would be "no problem", as he put it, "provided that the vehicle did not cause an obstruction". This, the question of whether there was an obstruction, is very important in terms of how Mr McCaul QC and Mr Reddiford put the case as against WH on Mr Lear's behalf, and it is, therefore, a matter to which I shall return in the context of considering whether the allegations of breach which have been made have been established. For the present, I shall continue with the events of 30 July 2011 leading up to the accident which happened later in the afternoon.
- Having parked the horsebox, as I have mentioned, Mr Lear went to meet up with his wife and to watch the entertainment together. He, therefore, left Doonaveeragh Amanda in the horsebox, and because it was a very hot day he left the ramp down. He explained that this is what is usually done when it is hot since, with the ramp left up, "it is like a greenhouse". He explained in his oral evidence, during cross-examination by Mr Browne QC, although not in his witness statement, not that it matters, that he went back soon after 12.30 pm in order to check that his horse was alright, explaining that he did not go right up to the horsebox as he could see without doing so that the horse was not kicking the sides of the horsebox and so that there was no problem. It was for this reason, therefore, that it was not until several hours later, at about 4.30 pm, that Mr Lear returned to the horsebox. This was after saying goodbye to Mrs Lear, who went home. Mr Lear explained that when he reached the horsebox he noticed that the ramp had been put up. He explained, in answer to questions from Mr Browne QC during cross-examination, that he was surprised to see that this had happened, explaining that, if somebody lifts the ramp on somebody else's horsebox, what he would expect to happen is that the person who lifted the ramp then would lower it again. He explained also that he assumed that whoever had lifted the ramp would have used the hydraulic system. He would not have expected the ramp to have been lifted manually since a ramp is heavy and it would take, as he put it in his witness statement, 3 or 4 "burly men" to raise it.
- Mr Lear added that his first thought when seeing the ramp closed was to open it because it was such a hot day. He confirmed that it did not occur to him that, in releasing the ramp in order to take it down using the hydraulic system, it would fall. Unfortunately, however, that is precisely what the ramp did: Mr Lear undid the two locking catches which secured the ramp and, as he released the second catch, the ramp sprang or fell down upon his head with very considerable force.
- What had happened, it is now clear but would obviously not have been known by Mr Lear when he returned to his horsebox, is that whoever raised the ramp (and their identities are not known) did so not by operating the hydraulic controls but by manually lifting it into the closed position. The effect of doing this, it is common ground between the engineering experts (Mr Terence Jenks on behalf of Mr Lear, and Mr Richard Durnford on WH's behalf), was to create a vacuum in the hydraulic system, meaning that when the catches holding it in the upright position were released, gravity would cause the ramp to fall – in the event and tragically, on top of Mr Lear.
- Unfortunately, even allowing for the fact that whoever lifted his ramp ought to have used the hydraulic system, it is clear, because the experts agree it, that what happened to him ought never to have been possible. As Mr Jenks and Mr Durnford put it in paragraph 3.8 of their joint statement:
"It would have been possible to design the hydraulic mechanism in a manner that prevented the ramp from being manually raised, for example by incorporation of a double-acting ram or some interlocking device. Had such an arrangement been used the accident would likely have been avoided."
Mr Jenks made the same point in his report at paragraphs 9.15 and 9.16:
"9.15 In my opinion if a conventional double-acting ram had been incorporated instead of the subject single-acting ram, and suitably hydraulically connected, the accident would probably have been avoided; and could even have prevented the ramp from being manually raised in the first place.
9.16 Notwithstanding the above, in general terms my understanding is that single-acting rams are commercially used for the operation of some horsebox ramps. I do not criticise the use of a single-acting ram provided that suitable hydraulic or other interlock means are incorporated to prevent the ramp from being manually raised. Unfortunately it is evident that the subject lorry did not have such a preventative interlock."
Mr Jenks's conclusion, in paragraph 9.22, was that, as a result, "the design of the modified hydraulic system was defective and not fully fit for its purpose".
- The engineering experts were, furthermore, agreed that, as Mr Jenks went on to observe in his report at paragraph 9.23, "as a secondary measure (albeit not a substitute for interlocking to prevent the ramp from falling and even to prevent it from being manually raised), there should have been clear and concise warnings in an operation manual against manually raising the ramp and their consequences fully explained". Instead, the warning on Mr Lear's horsebox was a warning which related to the pre-modified hydraulic system. As the joint statement puts it at paragraph 3.1:
"Adjacent to the main hydraulic control is a warning sticker but that relates to the previous tail-lift and therefore became redundant, hence irrelevant, when the lorry was modified. That sticker ought to have been removed by the supplier at the time of the lorry's modification."
The allegations made by Mr Lear
- It is against this backdrop that I turn now to the allegations of breach of duty which are made by Mr McCaul QC and Mr Reddiford on Mr Lear's behalf, before then addressing the law (as to which there is a significant dispute) and the substance of the breach allegations.
- As against Hickstead, Mr Lear's primary case is that Hickstead is an occupier for the purposes of the Occupiers' Liability Act 1957, and as such liable for breach of the "common duty of care" stipulated in section 2(2), namely "a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes of which he is invited or permitted by the occupier to be there". It is additionally or, if necessary, alternatively alleged that Hickstead was negligent and is liable on the basis that a duty of care was owed outwith the 1957 Act. Specifically, the case advanced entails allegations, as they were helpfully put in the Opening Skeleton Argument submitted by Mr McCaul QC and Mr Reddiford, that Hickstead failed properly: (i) to assess the risks of horsebox parking and to plan such parking, such risk assessments as Hickstead did carry out in relation to transport not adequately considering or addressing risks posed by horsebox movement/parking in the Stable Field; (ii) to devise and/or to implement a safe system of managing the parking of competitors' lorries in circumstances where there was overcrowding and a lack of control; and (iii) to give WH clear instructions and to monitor WH's management of horsebox parking and movements in the Stable Field. "Additionally", as it was put in the Opening Skeleton Argument, the submission was made that "under the 1957 Act, [Hickstead] is fixed with liability for [WH]'s negligent mismanagement of horsebox parking and movements" in the Stable Field.
- In his Opening Skeleton Argument, Mr Tavares explained that Hickstead's position was (and this remains Hickstead's position) that, if there was an obstruction caused by Mr Lear's horsebox and this is somehow actionable as against WH, nonetheless as far as Hickstead is concerned there cannot be any liability because of the 'independent contractor' defence. Specifically, Mr Tavares's submission was that, as regards the negligence case based on an alleged breach of a common law duty of care (not the "common duty" to which section 2(2) of the 1957 Act refers), this is an available defence, and that the same applies in relation to the case based on the section 2(2) "common duty" by reason of section 2(4)(b) which is in the following terms:
"In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that (for example) –
(b) where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done."
- Mr Tavares submitted that section 2(4)(b) is wide enough to cover what WH did in the present case, namely management of parking arrangements. He pointed out, in particular, that in Ferguson v Welsh [1987] 1 WLR 1553 the House of Lords treated the provision as applying to demolition works on the basis that such works are to be regarded as falling within the scope of the word "construction". Mr Tavares made the further point (repeated in his Written Closing Submissions which were prepared when he understood Mr McCaul QC and Mr Reddiford still to be maintaining their objection to the applicability of section 2(4)(b)) that, in any event, sub-section (b) (and for that matter sub-section (a)) are only examples of circumstances to be taken into account when determining whether an occupier has discharged the section 2(2) "common duty of care". In this respect, Mr Tavares cited Gwilliam v West Hertfordshire Hospitals NHS Trust and Others [2002] EWCA Civ 1041, in which the Court of Appeal decided that the occupier's duty was discharged by engaging an independent contractor to provide a children's amusement activity at a hospital fair, Lord Woolf CJ stating as follows at [12]:
"Although the example in section 2(4)(b) is not directly applicable, I have no doubt that the hospital could fulfil its duty if it employed an appropriate, competent, independent contractor."
Also in his Written Closing Submissions, Mr Tavares quoted from Clerk & Lindsell on Torts (21st Ed.) at paragraph 12-56 where section 2(4)(b) is discussed and this is stated:
"'Faulty execution' for these purposes comprises culpable omissions to maintain or repair as well as negligent acts, and 'construction, maintenance or repair' covers almost all conceivable works on land or structures, including demolition. Even if it were possible to conceive of some negligence by an independent contractor that was not directly covered by these words, it is suggested that the courts would read the section expansively, as clearly intended to oust any occupier's liability for independent contractors, and deny a remedy accordingly."
- As I have indicated, this was, however, before Mr Tavares was aware that Mr McCaul QC's and Mr Redifford's position had changed and it was conceded, as they explained in their Written Closing Submissions, that Hickstead "can, as a matter of principle, discharge its [1957 Act] duty if it shows that it acted reasonably in entrusting the management of parking in the stable field to [WH] and that it took such steps as were reasonably required to be satisfied that [WH] was competent and had done the work properly". In other words, there was ultimately no issue that section 2(4)(b) applies to the type of contracting work carried out by WH for Hickstead in this case. In order, however, for section 2(4)(b) to provide Hickstead with a defence, as section 2(4)(b) itself stipulates, "in all the circumstances" Hickstead has to have "acted reasonably in entrusting the work" to WH has to have "taken such steps (if any) as" it "reasonably ought in order to satisfy" itself that WH "was competent and that the work had been properly done".
- As Mr McCaul QC acknowledged when I put the point to him during the course of his closing submissions, it is really the last aspect of section 2(4)(b), covered by the words "that the work had been properly done", which adds to the position as a matter of common law since the other preconditions essentially mirror those which would otherwise be applicable under the common law. As stated in Clerk & Lindsell (supra.) at paragraph 6-59:
"If the employer has employed an independent contractor to do work on his behalf the general rule is that the employer is not responsible for any tort committed by the contractor in the course of the execution of the work. Furthermore, since the employees of the contractor, whilst acting as such, stand in the same position as their employer, it is equally the case that the employer of the contractor is not liable for the torts committed by the contractor's employees. Of course, even though the damage complained of may have been caused by the wrongful act or omission of an independent contractor or his employee, it may also be attributable to the negligence or other personal fault of the employer. If, for example, he has negligently selected an incompetent contractor, or if he has employed an insufficient number of men, or has himself so interfered with the manner of carrying out the work that damage results, he will himself have committed a tort for which he can be held liable. Again if the employer has authorised or ratified the independent contractor's tort then, on normal principles, he will be jointly liable for that tort."
It is this aspect, therefore, which, on analysis, adds to Mr Lear's alternative case based on the alleged existence of a duty of care under the common law.
- Put differently, if Hickstead were to succeed with an 'independent contractor' defence under the common law, it would likewise be successful with the equivalent defence under section 2(4)(b) unless it can be established on Mr Lear's behalf that there had been a failure on Hickstead's part to take "such steps (if any) as" it "reasonably ought in order to satisfy" itself that "the work had been properly done" by WH. This is essentially the allegation which is made in (iii) (as referred to in paragraph 25 above) inasmuch as it entails an allegation of failure to monitor WH's management of horsebox parking and movements in the Stable Field. The other allegations which have been levelled at Hickstead, whether the allegations arise in the context of the 1957 Act or under the common law, can all be met by Hickstead demonstrating that its selection of WH as an independent contractor was not negligent. As a result, the first matter which shortly I shall come on to address, when considering the position as a matter of law, is whether Mr McCaul QC and Mr Reddiford are right to submit that the circumstances of the present case are such as to give rise, as a matter of principle and even before considering whether breach on the part of Hickstead has been established, to potential liability under the "common duty of care" set out in section 2(2).
- As far as WH itself is concerned, the case is more straightforward in that there is not the 1957 Act complication which I have been addressing. The allegation, quite simply, is that there was a duty owed at common law (both by WH and by Hickstead) to take reasonable steps to control the parking of horseboxes, specifically so as to avoid the risk of personal injury resulting from people coming to Hickstead ("visitors" in 1957 Act-type terms) raising or lowering the ramps of lorries belonging to other people. The allegation is that WH was negligent for allowing horseboxes to park in the Stable Field in such manner as to create an obstruction, in particular: (a) by directing the row of horseboxes behind which Mr Lear parked his horsebox at right angles and the row of horseboxes which were parked in front of those horseboxes to park too close to each other; and/or (b) directing Mr Lear to park his horsebox where he did; and/or (c) by failing to prevent another horsebox, which was parked to the rear and again at right angles to Mr Lear's horsebox but slightly back from the rest of the row nearest to Mr Lear's horsebox, from parking or remaining where it did. It is the obstruction caused by this alleged negligence, specifically but not limited to the horsebox which I have just mentioned, which Mr McCaul QC and Mr Reddiford contended resulted in Mr Lear's horsebox ramp being raised by whoever raised it, their point being that it was in all probability only because the people concerned were trying to make space for a horsebox to get out that the ramp came to be lifted. If there had not been the obstruction, they submitted, then, Mr Lear's horsebox ramp would not have been raised and Mr Lear would not have sustained the terrible injuries which he did.
Duty of care: the 1957 Act and the common law
- I have previously observed that there was a significant dispute between the parties as to the law. Indeed, it was this dispute to which the majority of the submissions, certainly the oral submissions, were directed. I must, obviously, address those submissions in some detail, even though, as will appear, ultimately the outcome of this case does not turn on my determination as to what are the correct legal principles but on my decision in relation to whether any breach of duty has been made out.
- There are two matters which arise in relation to duty of care: first, the point I have just mentioned, namely whether, as a matter of principle, there is in the present case a potential liability on Hickstead's part under the section 2(2) "common duty of care"; and secondly, whether Hickstead and/or WH owed Mr Lear a relevant duty of care at common law. I address these matters, in turn, in what follows.
The 1957 Act: the section 2(2) "common duty of care"
- Section 1(1) of the 1957 Act provides as follows:
"The rules enacted by the two next following sections shall have effect, in place of the rules of the common law, to regulate the duty which an occupier of premises owes to his visitors in respect of dangers due to the state of the premises or to things done or omitted to be done on them."
It was Mr McCaul QC's and Mr Reddiford's submission that the relevant duty does not only cover the physical condition of the premises but covers also activities carried out on those premises.
- Mr McCaul QC and Mr Reddiford relied, in particular, on Tomlinson v Congleton Borough Council [2004] 1 AC 46, in which Lord Hoffmann stated as follows at [26] under the heading "A danger 'due to the state of the premises'":
"The first question, therefore, is whether there was a risk within the scope of the statute; a danger 'due to the state of the premises or to things done or omitted to be done on them'. The judge found that there was 'nothing about the mere at Brereton Heath which made it any more dangerous than any other ordinary stretch of open water in England'. There was nothing special about its configuration; there were no hidden dangers. It was shallow in some places and deep in others, but that is the nature of lakes. Nor was the council doing or permitting anything to be done which created a danger to persons who came to the lake. No power boats or jet skis threatened the safety of either lawful windsurfers or unlawful swimmers. So the council submits that there was no danger attributable to the state of premises or things done or omitted on them. In Donoghue v Folkestone Properties Ltd [2003] QB 1008, 1024, para 53 Lord Phillips of Worth Matravers MR expressed the same opinion. He said that he had been unable to identify the 'state of the premises' which carried with it the risk of the injury suffered by Mr Tomlinson: 'It seems to me that Mr Tomlinson suffered his injury because he chose to indulge in an activity which had inherent dangers, not because the premises were in a dangerous state'."
Mr McCaul QC and Mr Reddiford cited also what Lord Hoffmann went on to say at [28]:
"Mr Braithwaite was inclined to accept the difficulty of establishing that the risk was due to the state of the premises. He therefore contended that it was due to 'things done or omitted to be done' on the premises. When asked what these might be, he said that they consisted in the attraction of the lake and the council's inadequate attempts to keep people out of the water. The council, he said, were 'luring people into a deathtrap'. Ward LJ said that the water was 'a siren call strong enough to turn stout men's minds'. In my opinion this is gross hyperbole. The trouble with the island of the Sirens was not the state of the premises. It was that the Sirens held mariners spellbound until they died of hunger. The beach, give or take a fringe of human bones, was an ordinary Mediterranean beach. If Odysseus had gone ashore and accidentally drowned himself having a swim, Penelope would have had no action against the Sirens for luring him there with their songs. Likewise in this case, the water was perfectly safe for all normal activities. In my opinion 'things done or omitted to be done' means activities or the lack of precautions which cause risk, like allowing speedboats among the swimmers. It is a mere circularity to say that a failure to stop people getting into the water was an omission which gave rise to a duty to take steps to stop people from getting into the water."
So, Mr McCaul QC and Mr Reddiford submitted, had the lake been made dangerous to swimmers by the presence of power boats or jet skis, in Lord Hoffmann's view, this might give rise to liability on the part of the occupier because such would fall within "things done or omitted to be done on" the relevant premises, namely the lake. The position would, however, be different, Mr McCaul QC and Reddiford acknowledged, in relation to harm suffered by someone who came to the lake with a jet ski and sustained an accident because the width of the lake was such that he or she could not complete a turn in time to avoid hitting the bank, as that would be what they described as "a pure activity" which, as such, would fall outside the scope of the 1957 Act.
- Reliance was also placed by Mr McCaul QC and Mr Reddiford on Fairchild v Glenhaven Funeral Services Ltd [2002] 1 WLR 1052, in which at [127] Brooke LJ quoted from the judgment of Lord Goff in the Ferguson case at pages 1563E-1564A as follows:
"I am content to assume, for the purposes of the present appeal, that there is evidence capable of establishing that Mr Spence did have the ostensible authority of the council to allow the Welsh brothers (and, through them, Mr Ferguson) onto the land, Even so, in my judgment Mr Ferguson's action against the council must fail because I cannot see how the council could be held liable to him, in particular under the Occupiers' Liability Act 1957.
On the assumption that Mr Ferguson was the lawful visitor of the council on the land, the council owed to him the common duty of care, i.e. a duty 'to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there': see section 2(2) of the Act. I have emphasised the words 'in using the premise's because it seems to me that the key to the problem in the present case lies in those words. I can see no basis, even on the evidence now available, for holding that Mr Ferguson's injury arose from any breach by the council of that duty. There can, no doubt, be cases in which an independent contractor does work on premises which result in such premises becoming unsafe for a lawful visitor coming upon them, as when a brick falls from a building under repair onto the head of a postman delivering the mail. In such circumstances the occupier may be held liable to the postman, though in considering whether he is in breach of the common duty of care there would have to be considered, inter alia, the circumstances specified in section 2(4)(b) of the Act. But if I ask myself, in relation to the facts of the present case, whether it can be said that Mr Ferguson's injury arose from a failure by the council to take reasonable care to see that persons in his position would be reasonably safe in using the premises for the relevant purposes, the answer must, I think, be no. There is no question as, I see it, of Mr Ferguson's injury arising from any such failure; for it arose not from his use of the premises but from the manner in which he carried out his work on the premises. For this simple reason, I do not consider that the Occupier's Liability Act 1957 has anything to do with the present case."
- Brooke LJ went on to say this at [129] to [131]:
"129. While we must not assume that in using the language adopted in section 2(2) of the 1957 Act Parliament necessarily decided to adopt the emerging distinction between 'occupancy liability' and 'activity liability', the selection of the phrase 'care … to see that the visitor will be reasonably safe in using the premises for the [invited or permitted] purposes' is a fairly strong indication that Parliament intended the Act to be concerned with what used to be described as 'occupancy liability'. Section 1(1) refers to dangers due to the state of the premises or to things done or omitted to be done on them, and Lord Keith, at p 1560 f-g, explained the need for the final words when he posited that a visitor might be struck by falling masonry which was only a danger because an obviously incompetent contractor had failed to secure it properly.
130 We have had the benefit of much fuller argument than was available to the House of Lords in Ferguson v Welsh, and we can see nothing in the speeches of the other members of the House which casts any doubt on the correctness of Lord Goff's interpretation of section 2(2). Lord Oliver clearly tended to make the same distinction between occupancy liability and activity liability when he said, quite shortly, at p 1562:
'It is possible to envisage circumstances in which an occupier of property engaging the services of an independent contractor to carry out work on his premises may, as a result of his state of knowledge and opportunities of supervision, render himself liable to an employee of the contractor who is injured as a result of the defective system of work adopted by the employer. But I incline to think that his liability in such case would be rather that of joint tortfeasor than of an occupier.'
Lord Keith, too, was tending in the same direction, at p 1560 b , in the sentence which starts 'It would be going a very long way to hold…'.
131 In the recent case of Makepeace v Evans Bros (Reading) [2001] ICR 241, 244, para 7, Mantell LJ said that the question whether the common law duty of care is subsumed in the common duty of care created by the 1957 Act or survived as an independent basis of claim in respect of activities carried out on premises was of no practical importance save possibly as a pleading point, and that it was unnecessary to attempt to resolve the question on that appeal. The present appeals show how it may be essential sometimes to make this distinction. The 1957 Act imposed the new statutory common duty of care on an occupier towards all his visitors to take appropriate care to see that they would be reasonably safe in using his premises, and it is not necessary in this context to go further than the provisions of the Act to see whether a duty of care exists or what is its scope. The Act does not provide an answer, however, when a question arises whether an occupier, without more, is liable to a visitor for an injury he suffers as a result of an activity conducted by a third party on his premises. For that purpose one has to go to the common law to see if a duty of care exists, and if so, what is its scope, or to some other statutory provision such as the (new repealed) section 63(1) of the Factories Act 1961."
- Mr McCaul QC and Mr Reddiford submitted that, whilst in the Fairchild case the Court of Appeal decided that there was no liability to the contractor's employees when the danger which they encountered was the way in which their employees and other contractors' employees were carrying out their work, so as to release asbestos dust, the position would have been different had the dust deposited as a result of that activity been inhaled by a visitor to the premises. The critical distinction, it was submitted, is between, on the one hand, the activity which has created the danger and, on the other hand, the risk to the visitor of contracting an asbestos-related disease owing to the state of the premises brought about by that activity.
- This distinction, Mr McCaul QC and Mr Reddiford suggested, is also apparent from Yates v National Trust [2014] EWHC 222 (QB), a case in which the claimant was a tree surgeon who was injured in a fall from a rotten branch whilst he was carrying out work on a tree at the defendant's premises. Nicol J decided that, in the circumstances of that case, no duty was owed under the 1957 Act. He stated as follows at [37]:
"The NT plainly did owe a duty of care to the Claimant. He was a lawful visitor to Morden Lodge and, as such, he was owed the common duty of care in s.2(2) of the Occupiers Liability Act 1957. However, that is a duty to take such care as in all the circumstances of the case is reasonable to see that he was reasonably safe in using the premises for the purpose for which he was invited by the NT to be there. But that is not a relevant duty of care. The Claimant was not injured because of the state of the premises but because of his activity as a tree surgeon in the horse chestnut tree. As I have already mentioned, the Court of Appeal held in Fairchild, that the 1957 Act does not help answer the question whether an occupier owes a duty of care to a visitor for an injury caused by a third party's activity on the premises. For that purpose one has to look to the common law (see Brooke L.J. at [131]). The same must apply where the act is the Claimant's own."
Mr McCaul QC and Mr Reddiford submitted that the position would have been different had the claimant not been the tree surgeon who was carrying out the activity on the defendant's land but someone who had been walking under the tree when he was hit by a sawn off branch. They did so by analogy with the brick example given by Lord Goff in the Ferguson case, as set out above, at page 1563F-H.
- So, Mr McCaul QC and Mr Reddiford submitted, Mr Tavares was wrong when he made the submission that the movements of horseboxes in the Stable Field were not such as to attract 'occupancy liability' and so application of the 1957 Act. I agree with Mr McCaul QC and Mr Reddiford about this. It seems to me that there is considerable force in the point which they make. Unless the activity which has given rise to a claimant's damage is an activity carried out by the claimant, the liability of the occupier to the claimant is in respect of an activity carried out on the occupier's premises by a third party and as such is an 'occupancy' type of liability. In the present case, if the relevant activity entails, as Mr McCaul QC and Mr Reddiford suggested, horsebox movements, then as long as the movements which resulted in Mr Lear's accident were activities carried out by others (not Mr Lear), Hickstead is under a potential 'occupancy liability', and the case is not properly characterised as entailed 'activity liability' so as to mean that the 1957 Act is of no application. In circumstances where Mr Lear was told that he could park where he did by WH, the specialist parking contractor employed by Hickstead, I consider that Mr Lear ought not to be regarded as being himself responsible for what happened to him. Indeed, it may well be that Mr McCaul QC's and Mr Reddiford's reference to horsebox movements is too broad and that the better approach is to regard the relevant action as the specific action of lifting of the ramp on Mr Lear's horsebox. If that is right, then it seems to me that there can be no question of Hickstead not being under an 'occupancy liability' to Mr Lear, albeit it does not, of course, follow that, without more, Hickstead will, in those circumstances, actually be liable to Mr Lear.
- I might add that I am fortified in this conclusion by the decision of the Court of Appeal in Everett v Comojo (UK) Ltd [2012] 1 WLR 150. This was a case in which the claimants were guests at a members-only nightclub when they suffered personal injuries in an unexpected knife attack perpetrated by another guest, who was consequently convicted of wounding with intent. The claimants sued the defendant, the owner of the club, for breach of a duty of care in failing to prevent the attack. The judge dismissed the claim and the appeal also failed. However, it did so only because it was decided that, on the evidence, the case on breach had not been made out. Importantly for present purposes, it was held that the owner of the club owed the claimants the "common duty of care" under section 2(2) of the 1957 Act. Smith LJ explained at [36] as follows:
"The common duty of care is an extremely flexible concept, adaptable to the very wide range of circumstances to which it has to be applied. It can be applied to the static condition of the premises and to activities on the premises. It can give rise to vicarious liability for the actions of an employee of the occupier who, for example, might have created a temporary tripping or slipping hazard. I think that it is appropriate (fair, just and reasonable) that it should govern the relationship between the managers of an hotel or nightclub and their guests in relation to the actions of third parties on the premises. I do not think it possible to define the circumstances in which there will be liability. Circumstances will vary so widely. However, I think it will be a rare nightclub that does not need some security arrangements which can be activated as and when the need arises. What they need to be will vary. One can think of obvious examples where liability will attach. In a nightclub where experience has shown that entrants quite often try to bring in offensive weapons it may be necessary to arrange for everyone to be searched on entry. In a nightclub where outbreaks of violence are not uncommon, liability might well attach if a guest is injured in an outbreak of violence among guests and there is no one on hand to control the outbreak. It may be necessary for the management of some establishments to arrange for security personnel to be present at all times within areas where people congregate. On the other hand, in a respectable members-only club where violence is virtually unheard of no such arrangements would be necessary. The duty on management may be no higher than that staff be trained to look out for any sign of trouble and to alert security staff."
I agree with Mr McCaul QC and Mr Reddiford when they submitted that it follows from this that if, say, WH's employee had been detailed to help horsebox owners to put their ramps down and a ramp fell on top of him, then Hickstead would not have been under any 'occupier liability' to the employee concerned because the employee is the person who has engaged in the activity on Hickstead's premises which caused him to be injured. However, that is not what happened in the present case. Mr Lear's case is, rather, that the accident occurred because horseboxes were too closely parked and another horsebox driver took the step of lifting Mr Lear's horsebox ramp in order, probably, to leave the Stable Field and not be boxed in. If this case is established, then it seems to me that the liability is potentially an 'occupancy liability' and the 1957 Act is applicable.
- Furthermore, although I did not understand this to be disputed by Mr Tavares, I agree with Mr McCaul QC and Mr Reddiford that the fact that the manner in which the premises (the Stable Field) had become congested and so unsafe, if that is what happened, might have been due to a temporary phenomenon, such as a vehicle blocking an access route, does not preclude the application of the 1957 Act. Hufton v Somerset County Council [2011] EWCA Civ 789 is an illustration that this is the case since it involved the temporary phenomenon of moisture on a school hall floor. Jackson LJ considered (albeit that the contrary was not apparently argued) that the section 2(2) "common duty of care" is applicable in such circumstances, going on nonetheless to uphold the decision of the trial judge that the defendant was not liable because it "had a reasonable system in place to prevent the hall floor from becoming wet, even though that system failed in the present instance" (see [31]).
- In conclusion on this point, therefore, I consider that, as a matter of principle, there is in the present case a potential liability on Hickstead's part under the section 2(2) "common duty of care", and that such liability can exist however temporary the obstruction, if there was an obstruction, which may have existed through the manner of parking permitted by WH. It does not necessarily follow, however, that this means that there has been a breach of the "common duty of care" as that will depend not only on whether there was the obstruction which is alleged on Mr Lear's behalf, but also on whether Hickstead is to be treated as "answerable for the danger" when taking account of the matters set out in section 2(4)(b) of the 1957 Act.
A duty of care at common law
- I come on now to consider the position at common law. Although the parties were agreed that a duty of care is owed only in respect of damage that is reasonably foreseeable, they were not agreed as to the right approach to be adopted when considering what was reasonably foreseeable in the present case. The level of disagreement was substantial. It is, therefore, necessary that I should deal with a considerable body of case law, before coming on to address the question of breach of duty.
- The submission which was made by Mr McCaul QC and Mr Reddiford was that it was reasonably foreseeable that visitors to the Stable Field might suffer personal injury if horseboxes were so parked that it became necessary to raise and/or lower horsebox ramps. Mr Browne QC, Mr Harris and Mr Tavares submitted, however, that this represents too broad an approach.
- I address below, first, the correct legal approach and, secondly, the implications for the present case. In addressing the correct legal approach, however, I shall inevitably touch on the relevance of the legal principles for the present case. Accordingly, in going on to deal with the implications, there will be a degree of repetition.
The correct legal approach
- The submission made by Mr Browne QC, Mr Harris and Mr Tavares, or at least its starting point, entailed the proposition that common sense needs to be exercised in determining whether a duty of care is owed. In this regard, reliance was placed on Doughty v Turner Manufacturing Co Ltd [1964] 1 QB 518. That was a case in which in the heat treatment room of their factory the defendants had two cauldrons in which they subjected metal parts to heat by immersing them in hot molten liquid. The defendants placed an asbestos cement cover on top of each cauldron so as to conserve heat. Nobody supposed that, if the covers were immersed into the cauldron, any serious consequences would result. Accordingly, after an employee inadvertently knocked one of the covers into the cauldron and it slid beneath the molten liquid, nobody regarded that as dangerous and nobody withdrew from the vicinity of the cauldron. Unfortunately for the plaintiff, who had gone to the heat treatment room to deliver a message, this proved a mistaken view because, as he was standing near the cauldron, the molten liquid in it erupted and he suffered injuries. In an action by the plaintiff against the defendants for damages in respect of his injuries on the ground of negligence, the defendants having been held liable, they successfully appealed, the Court of Appeal deciding that the defendants were not liable for the damage resulting from the explosion because it was not damage of such a kind as could reasonably have been foreseen and was altogether different from a foreseeable splash of the liquid in the cauldron. In a passage particularly relied upon by Mr Browne QC, Mr Harris and Mr Tavares, Diplock LJ (as he then was) said this at page 531:
"There is no room today for mystique in the law of negligence. It is the application of common morality and common sense to the activities of the common man. He must take reasonable care to avoid acts or omissions which he can reasonably foresee would be likely to injure his neighbour; but he need do no more than this."
He went on at page 532 to refer to the reliance which had been placed by the plaintiff's counsel on Hughes v Lord Advocate [1963] AC 837, explaining that he did not consider that that authority assisted him:
"In Hughes v Lord Advocate the breach of duty by the defendant which was relied upon was his omission to guard a dangerous allurement to children which was liable to cause them injury (inter alia) by burning. The infant plaintiff, to whom the duty was owed, was allured and was injured by burning, although the particular concatenation of circumstances which resulted in his burns being more serious than they would have been expected to be could not reasonably have been foreseen. But they were the direct consequence of the defendant's breach of duty and of the same kind as could reasonably have been foreseen, although of unforeseen gravity."
Diplock LJ contrasted the facts of the case before him in what he went on to say at pages 532-533:
"But in the present case the defendants' duty owed to the plaintiff in relation to the only foreseeable risk, that is of splashing, was to take reasonable care to avoid knocking the cover into the liquid or allowing it to slip in in such a way as to cause a splash which would injure the plaintiff. Failure to avoid knocking it into the liquid, or allowing it to slip in, was of itself no breach of duty to the plaintiff. It is not clear on the evidence whether the dropping of the cover on to the liquid caused any splash at all. The judge made no finding on this. The reasoning in his judgment is not sufficiently explicit to make it clear whether the point argued by Mr James [the plaintiff's counsel], with which I am now dealing, formed part of his ratio decidendi, though some of his observations in the course of the hearing suggest that it was not. However that may be, it is incontrovertible that, even if there was some slight splash when the cover fell on to the liquid, the plaintiff was untouched by it and it caused him no injury. There was thus, in the circumstances of this case, no breach of duty to the plaintiff involved in inadvertently knocking the cover into the liquid or inadvertently allowing it to slip in."
- It was suggested by Mr Browne QC, Mr Harris and Mr Tavares that a similar common sense-driven approach in the present case demands that it is decided that the injury suffered by Mr Lear was unforeseeable and so that no relevant duty of care was owed to him by either Hickstead or WH. More specifically, they submitted that, in order for Mr Lear to be able to establish the existence of a duty of care at common law, it would need to be established: (i) that when the accident occurred Mr Lear fell within the category of persons who were likely to be injured by those managing the parking; (ii) that Mr Lear's injury was of a type which was foreseeable; and (iii) that Mr Lear's specific injury or at least something more like it than, say, merely a strained back would have been contemplated by a reasonable person as being likely to follow from his acts or omissions. It was their contention also (iv) that the fact that it is necessary for a third party (in the present case whoever lifted the ramp on Mr Lear's horsebox) to act in a certain way for a foreseeable risk of injury to manifest either precludes the duty extending to the consequences of that third party's act or means that a higher degree of foreseeability is required than would otherwise be the case.
- I am not persuaded that the position in the present case is quite as was suggested by Mr Browne QC, Mr Harris and Mr Tavares. I agree with Mr McCaul QC and Mr Reddiford that the right approach is simply to ask whether it was reasonably foreseeable that visitors to Hickstead might suffer personal injury if lorries were so parked that it became necessary to raise and/or lower horsebox ramps. I shall endeavour to explain why I take this view in what follows.
- First, addressing the first of Mr Browne QC's, Mr Harris's and Mr Tavares's points, which concerns the identity of those at risk, their central submission was that Mr Lear did not fall into the category of persons who were likely to be injured through negligent management of the parking at Hickstead because he was not injured whilst he was driving his horsebox, but in his capacity as someone who lowered the ramp having discovered that it had been raised by persons unknown. The position is, accordingly, so it was suggested, not the same as in the Hughes case where the relevant "neighbours" for Donoghue v Stevenson purposes were identified by Lord Jenkins at page 848 as passers-by, a category which included "small and certainly inquisitive children".
- I cannot accept this submission. I agree with Mr McCaul QC and Mr Reddiford that it represents far too narrow a characterisation of the position. I agree, in particular, that in considering whether somebody in Mr Lear's position, a driver who was using the Stable Field both when he was behind the wheel of his horsebox and when he was operating its ramp, is to be regarded as a "neighbour" for the purposes of deciding whether a duty of care at common law is owed, it makes no sense to discriminate between visitors to Hickstead, and specifically to the Stable Field, who at any given time are driving vehicles and those who are not. Mr McCaul QC and Mr Reddiford illustrated their submission by giving the example of a WH employee negligently guiding a horsebox into a parking space and so causing collisions both with a pedestrian who is standing nearby and with an adjacent horsebox being driven at the time. It would be very odd if, in those circumstances, a duty of care were to be regarded as only being owed to the driver of the adjacent horsebox and not also to the pedestrian. In both cases, it seems to me to be quite obvious that there is, as described by Lord Bridge in Caparo Industries plc v Dickman [1990] 2 AC 605 at pages 617H-618A, "a relationship characterised by the law as one of 'proximity' or 'neighbourhood' and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other".
- I would add that I am, in any event, not entirely convinced that the Doughty case particularly assists Mr Browne QC, Mr Harris and Mr Tavares in relation to this first point. I say this because, on analysis, it seems to me that Diplock LJ's focus was not on the plaintiff employee being a non-neighbour but instead on the fact that the injury which he suffered was not of a type which was foreseeable in that, whilst it was foreseeable that there might be splashing and that injury might thereby be caused, it was not foreseeable that the injury suffered by the plaintiff in the explosion would occur, namely a type of injury which was of a different type to an injury caused by splashing. This would appear to be the view taken of the Doughty case in the decision of the Privy Council in The Attorney General of the British Virgin Islands v Hartwell [2004] UKPC 12, [2004] 1 WLR 1273, Lord Nicholls saying this at [28] and [29]:
"28 Sometimes, depending on the circumstances, personal injury as a type of damage may need to be broken down further, distinguishing between personal injury arising from one particular cause and personal injury arising from another. A defendant may be regarded as owing a duty of care in respect of one but not the other. In Doughty v Turner Manufacturing Co Ltd [1964] 1 QB 518 the cover on a cauldron of exceedingly hot molten sodium cyanide was accidentally knocked into the cauldron and the plaintiff was damaged by the resultant explosion. The plaintiff's claim failed. The defendant employer owed a duty of care in respect of the only foreseeable risk, namely, that of splashing of the liquid if the cover fell into it.
29 It must be questionable whether a distinction of this character would commend itself to the courts today. The 'meddlesome children' cases of Hughes v Lord Advocate [1963] AC 837 and Jolley v Sutton London Borough Council [2000] 1 WLR 1082 suggest not. In the latter case the duty of care owed by a local authority in respect of non-removal of an old abandoned boat was not confined to the obvious risk that a child might climb on the boat and suffer injury by falling through the rotten planking. The duty of care included damage suffered by the plaintiff when the boat fell on him as he lay underneath it while attempting to restore it. Fairness and reasonableness required that the applicable degree of generality should not exclude personal injury suffered in the latter way."
- Mr Browne QC and Mr Harris submitted that these observations are not concerned with a case where, as in the Doughty case, there was no risk of injury to the particular plaintiff by splashing at the time of the explosion, and so what they would label an 'identity' case, as opposed to the scenario in the Hughes case where there was a risk of injury by burning to the children who encountered the lamp and the issue was whether it mattered that the burning occurred through an explosion rather than through another mechanism. This is the point which I shall address next. However, if Mr Browne QC and Mr Harris are right about this, then it would appear that the Privy Council in the Hartwell case misunderstood the rationale behind Diplock LJ's reasoning in the Doughty case. This is not a conclusion which I would arrive at too readily.
- This brings me on to the next of the points made by Mr Browne QC, Mr Harris and Mr Tavares. This is the submission that Mr Lear's injury was of a type which was unforeseeable. Again, I am not persuaded by this submission. As appears from the Hartwell case, focus on subtle distinctions is not appropriate in this context. As Lord Hoffmann made clear in Jolley v Sutton London Borough Council [2000] 1 WLR 1082 at page 1091A:
"… the plaintiff must show that the injury which he suffered fell within the scope of the council's duty and that in cases of physical injury, the scope of the duty is determined by whether or not the injury fell within a description which could be said to have been reasonably foreseeable."
This was a case in which a boat was left abandoned for at least two years beside a block of flats on land owned by the defendant council. It appeared to be sound but was, in fact, rotten. The council was aware of the boat's presence and made plans to remove it, but those plans were not implemented. Two boys started to repair the boat, using a car jack and some wood to prop it up. Whilst the boys were working on the boat, it fell off the prop, crushing one of the boys, who sued the council. The trial judge decided that the presence of the boat would attract children and that the type of accident and injury which occurred was reasonably foreseeable. The Court of Appeal disagreed, taking the view that, although it was reasonably foreseeable that children would play on the boat and be injured, it was not foreseeable that they would prop up the boat and be injured by its falling off the prop. In such circumstances, as Lord Hoffmann explained at page 1091G-H:
"The short point in the present appeal is therefore whether the judge [1998] 1 Lloyd's Rep. 433 , 439 was right in saying in general terms that the risk was that children would 'meddle with the boat at the risk of some physical injury' or whether the Court of Appeal were right in saying that the only foreseeable risk was of 'children who were drawn to the boat climbing upon it and being injured by the rotten planking giving way beneath them' per Roch L.J. [1998] 1 WLR 1546 , 1555. Was the wider risk, which would include within its description the accident which actually happened, reasonably foreseeable?"
His answer (and that of Lord Mackay and Lord Hobhouse, the other members of the House of Lords deciding the appeal on the basis that the Court of Appeal ought not to have interfered with the trial judge's factual findings) was set out at page 1092D-F:
"…it seems to me that the concession by the council is of significance. The council admit that they should have removed the boat. True, they make this concession solely on the ground that there was a risk that children would suffer minor injuries if the rotten planking gave way beneath them. But the concession shows that if there were a wider risk, the council would have had to incur no additional expense to eliminate it. They would only have had to do what they admit they should have done anyway. On the principle as stated by Lord Reid, the wider risk would also fall within the scope of the council's duty unless it was different in kind from that which should have been foreseen (like the fire and pollution risks in The Wagon Mound No. 1 and either wholly unforeseeable (as the fire risk was assumed to be in The Wagon Mound No. 1) or so remote that it could be 'brushed aside as far-fetched': see Lord Reid in The Wagon Mound No. 2 [1969] 2 A.C. 617 .
I agree with my noble and learned friend, Lord Steyn, and the judge that one cannot so describe the risk that children coming upon an abandoned boat and trailer would suffer injury in some way other than by falling through the planks."
- As to the Hughes case itself, it is instructive to note what Lord Reid said at page 845:
"The appellant's injuries were mainly caused by burns, and it cannot be said that injuries from burns were unforeseeable. As a warning to traffic the workmen had set lighted red lamps round the tent which covered the manhole, and if boys did enter the dark tent it was very likely that they would take one of these lamps with them. If the lamp fell and broke it was not at all unlikely that the boy would be burned and the burns might well be serious. No doubt it was not to be expected that the injuries would be as serious as those which the appellant in fact sustained. But a defender is liable, although the damage may be a good deal greater in extent than was foreseeable. He can only escape liability if the damage can be regarded as differing in kind from what was foreseeable.
So we have (first) a duty owed by the workmen, (secondly) the fact that if they had done as they ought to have done there would have been no accident, and (thirdly) the fact that the injuries suffered by the appellant, though perhaps different in degree, did not differ in kind from injuries which might have resulted from an accident of a foreseeable nature. The ground on which this case has been decided against the appellant is that the accident was of an unforeseeable type. Of course, the pursuer has to prove that the defender's fault caused the accident, and there could be a case where the intrusion of a new and unexpected factor could be regarded as the cause of the accident rather than the fault of the defender. But that is not this case. The cause of this accident was a known source of danger, the lamp, but it behaved in an unpredictable way.
The explanation of the accident which has been accepted, and which I would not seek to question, is that, when the lamp fell down the manhole and was broken, some paraffin escaped, and enough was vaporised to create an explosive mixture which was detonated by the naked light of the lamp. The experts agree that no one would have expected that to happen: it was so unlikely as to be unforeseeable. The explosion caused the boy to fall into the manhole: whether his injuries were directly caused by the explosion or aggravated by fire which started in the manhole is not at all clear. The essential step in the respondent's argument is that the explosion was the real cause of the injuries and that the explosion was unforeseeable."
As for Lord Guest, he put matters as follows at page 856:
"Concentration has been placed in the courts below on the explosion which, it was said, could not have been foreseen because it was caused in a unique fashion by the paraffin forming into vapour and being ignited by the naked flame of the wick. But this, in my opinion, is to concentrate on what is really a non-essential element in the dangerous situation created by the allurement. The test might better be put thus: Was the igniting of paraffin outside the lamp by the flame a foreseeable consequence of the breach of duty? In the circumstances, there was a combination of potentially dangerous circumstances against which the Post Office had to protect the appellant. If these formed an allurement to children it might have been foreseen that they would play with the lamp, that it might tip over, that it might be broken, and that when broken the paraffin might spill and be ignited by the flame. All these steps in the chain of causation seem to have been accepted by all the judges in the courts below as foreseeable. But because the explosion was the agent which caused the burning and was unforeseeable, therefore the accident, according to them, was not reasonably foreseeable. In my opinion, this reasoning is fallacious. An explosion is only one way in which burning can be caused. Burning can also be caused by the contact between liquid paraffin and a naked flame. In the one case paraffin vapour and in the other case liquid paraffin is ignited by fire. I cannot see that these are two different types of accident. They are both burning accidents and in both cases the injuries would be burning injuries. Upon this view the explosion was an immaterial event in the chain of causation. It was simply one way in which burning might be caused by the potentially dangerous paraffin lamp. I adopt, with respect, Lord Carmont's observation in the present case: 'The defender cannot, I think, escape liability by contending that he did not foresee all the possibilities of the manner in which allurements - the manhole and the lantern - would act upon the childish mind.'"
Likewise Lord Pearce said this at pages 857-858:
"The defenders are therefore liable for all the foreseeable consequences of their neglect. When an accident is of a different type and kind from anything that a defender could have foreseen he is not liable for it …. But to demand too great precision in the test of foreseeability would be unfair to the pursuer since the facets of misadventure are innumerable … . In the case of an allurement to children it is particularly hard to foresee with precision the exact shape of the disaster that will arise. The allurement in this case was the combination of a red paraffin lamp, a ladder, a partially closed tent, and a cavernous hole within it, a setting well fitted to inspire some juvenile adventure that might end in calamity. The obvious risks were burning and conflagration and a fall. All these in fact occurred, but unexpectedly the mishandled lamp instead of causing an ordinary conflagration produced a violent explosion. Did the explosion create an accident and damage of a different type from the misadventure and damage that could be foreseen? In my judgment it did not. The accident was but a variant of the foreseeable. It was, to quote the words of Denning L.J. in Roe v. Minister of Health, 59 'within the risk created by the negligence.'"
- To my way of thinking, these passages in the speeches of Lord Reid, Lord Guest and Lord Pearce make it very clear that the submission made by Mr Browne QC, Mr Harris and Mr Tavares in the present case, namely that the injury suffered by Mr Lear is of a different and unforeseeable type to the type of injury would reasonably have been foreseeable, is not sustainable. It is a submission which, in my view, demands too much precision as to what may or may not have been foreseeable. There is, as Lord Pearce put it, no requirement "to foresee with precision the exact shape of the disaster that will arise". As I see it, what matters is not exactly how an injury might be sustained, nor the extent of the injury which is sustained, but the fact that it would have been reasonably foreseeable that some injury would, or might, be suffered in the event that a horsebox ramp had to be lifted or lowered in order to gain access or egress from the Stable Field in the event of vehicle obstruction. Accordingly, I regard it as immaterial that what might have been more foreseeable than the injury which Mr Lear sustained was an injury such as a strained back in struggling to lift the ramp manually rather than using the hydraulic system – subject, that is, to the point which I shall come on to address concerning the degree of probability which is required (Mr Browne QC's, Mr Harris's and Mr Tavares's third point).
- In short, this not a case where the injury suffered by Mr Lear is of a different genus to what was reasonably foreseeable. It is not, therefore, a case such as Darby v National Trust [2001] EWCA Civ 189, [2001] PIQR P27 where the Court of Appeal held that the risk of drowning in the defendant's lake was quite different in type from the risk of injury due to contracting Weils disease. As May LJ put it at [25]:
"… a case which promotes a duty based on the risk of a swimmer catching Weils disease will not, in my opinion, support a breach of duty founded upon a risk of drowning. The risks are of an intrinsically different kind and so are any dependent duties. …".
- Before dealing with the probability point, I need also, briefly, to address a submission which Mr Browne QC made at the outset of his oral closing submissions. This is his suggestion that it is of assistance when considering the question of foreseeability to consider what actually happened to bring about Mr Lear's injury. Based on this suggestion, in their Written Closing Submissions, Mr Browne QC and Mr Harris (and to some extent also Mr Tavares) advanced the proposition that only if it could be established that no fewer than eleven events were foreseeable (albeit that there was some overlap between the events listed) would it be right to reach the conclusion that there is the requisite foreseeability in this case. The events identified by Mr Browne QC and Mr Harris were these: (i) that Mr Lear's ramp would present an obstruction to a person seeking access to, or egress from, the Stable Field; (ii) that that unknown driver would not telephone Mr Lear to ask him to move his ramp despite Mr Lear's telephone number being clearly displayed in the windscreen of his horsebox; (iii) that the unknown driver would not notice the hydraulic controls on the rear nearside side of Mr Lear's horsebox; (iv) that the unknown driver would attempt to raise the ramp manually; (v) that the unknown driver would not realise having attempted to raise the ramp manually that it was hydraulically operated; (vi) that the unknown driver would enlist the support of two others, who would also fail to ring Mr Lear and fail to notice the hydraulic controls and fail to realise that the ramp was hydraulically operated when they began to lift it; (vii) that the hydraulic system would be defective and this meant that it was possible to raise the ramp manually so as to create a trap for those who subsequently lowered the ramp; (viii) that the unknown driver would succeed in raising the ramp; (ix) that the unknown driver would choose not to return the ramp to the position it was in when he or she found the ramp; (x) that Mr Lear would not know that the ramp was defective and that, if it were raised manually, a trap would be created; and (xi) that Mr Lear would stand beneath the ramp when he was attempting to lower the ramp and so suffer injury which would probably have been avoided had he done what he did by standing to the side.
- Again, this is a submission which I cannot accept. It seems to me that it runs significantly counter to the approach set out in the authorities referred to above. Specifically, if what matters is the type or genus of injury, which is the position as made clear by the authorities, then I struggle to see how it can be right that that, as Mr Browne QC, Mr Harris and Mr Tavares submitted, these particular events need to have been reasonably foreseeable. I agree with Mr McCaul QC and Mr Reddiford that all that is required is that Mr Lear's injury was within a genus, or was of a type, which was reasonably foreseeable; it does not matter that the precise injury and the precise circumstances in which the injury came to be sustained were not foreseen.
- Furthermore, I do not consider that the authority on which Mr Browne QC relied in support of his argument in this regard when addressing me orally is, on analysis, as helpful as he considered. This is the decision of the House of Lords in Corr v IBC Vehicles Ltd [2008] 1 AC 884. In that case the claimant's late husband had been employed by the defendant as a maintenance engineer when he suffered severe head injuries caused by malfunctioning machinery. He underwent lengthy reconstructive surgery, as a result of which he began to suffer post-traumatic stress disorder causing him to lapse into depression. He subsequently committed suicide, and his wife sued the defendant. The House of Lords held that an employer owed his employee a duty to take reasonable care to avoid causing him personal injury (including psychiatric injury), and that foreseeability of risk of physical injury was sufficient to establish liability. Although it would appear that there were issues concerning foreseeability in the context of establishing the extent of the duty of care owed by the employer to an employee, Lord Bingham explained, at [8], that "the real issue dividing the parties in this case, compendiously expressed, is whether, for one reason or another, the damages claimed by Mrs Corr under the 1976 Act are too remote". He then went on in the same paragraph to refer to the fact that in the context of that dispute both parties relied on Lord Rodger's summary of the principles applicable to remoteness of damage in Simmons v British Steel plc [2004] ICR 585. Lord Bingham set out the relevant passage from Lord Rodger's judgment, at [67], including his reference to one of the matters to be taken into consideration is, at (3), "if the pursuer's injury is of a kind that was foreseeable, the defender is liable, even if the damage is greater in extent than was foreseeable or it was caused in a way that could not have been foreseen: Hughes v Lord Advocate [1963] AC 837 , 847, per Lord Reid". In what follows at [9] onwards, Lord Bingham then considered the various points which arose. In particular, at [11], under the heading "The foreseeability issue", in a passage heavily relied upon by Mr Browne QC, Lord Bingham stated as follows:
"As Lord Rodger's summary … makes clear, and despite the differences of opinion which formerly prevailed, it is now accepted that there can be no recovery for damage which was not reasonably foreseeable. This appeal does not invite consideration of the corollary that damage may be irrecoverable although reasonably foreseeable. It is accepted for present purposes that foreseeability is to be judged by the standards of the reasonable employer, as of the date of the accident and with reference to the very accident which occurred, but with reference not to the actual victim but to a hypothetical employee. In this way effect is given to the principle that the tortfeasor must take his victim as he finds him. Mr Cousins submits that while psychological trauma and depression were a foreseeable result of the accident (and thus of the employer's breach), Mr Corr's conduct in taking his own life was not."
- Mr Browne QC submitted that this passage supports the proposition that, when considering foreseeability for the purposes of ascertaining whether a duty of care is owed in a given case, it is necessary to have "reference to the very accident which occurred", hence his invitation to me to consider the eleven events which he identified and which I have set out above. However, I do not consider that this can be right. It is quite clear, at least as I see it, that Lord Bingham was considering a different question, namely that of remoteness of damage. This is what he himself stated that he was doing at [8]. It is also what Lord Rodger in the Simmons case was quite clearly addressing since the passage at [67] specifically states, at the beginning, that the principles he was identifying were concerned with how the "question of the remoteness of damage" is to be approached. It is right to acknowledge that the two questions, foreseeability in the context of establishing whether there is a duty of care and remoteness of damage, are closely associated. However, it does not seem to me that it follows from this that it is appropriate to consider "the very accident which occurred" in considering the former as opposed to the latter. Indeed, it is worth noting that Lord Bingham went on, at [13], to refer to the Hughes case and to summarise the proper approach as follows:
"… the principle that a tortfeasor who reasonably foresees the occurrence of some damage need not foresee the precise form which the damage may take in my view applies. I can readily accept that some manifestations of severe depression could properly be held to be so unusual and unpredictable as to be outside the bounds of what is reasonably foreseeable, but suicide cannot be so regarded. While it is not, happily, a usual manifestation, it is one that … is not uncommon. That is enough for the claimant to succeed."
In the circumstances, in my view, it cannot be right that Hickstead and WH should have had to have the level foresight which Mr Browne QC, Mr Harris and Mr Tavares suggested.
- This brings me to the third area of dispute between the parties concerning the law, namely as to the degree of probability which is required in order for foreseeability to be made out. Mr McCaul QC and Mr Reddiford submitted that, in order for a risk to be reasonably foreseeable, as Lord Upjohn put it in The 'Heron II' [1969] 1 AC 350 at page 422C-D, what is required:
"is that the tortfeasor is liable for any damage which he can reasonably foresee may happen as a result of the breach however unlikely it may be, unless it can be brushed aside as far-fetched."
Lord Upjohn cited in this regard The 'Wagon Mound' (No.2) [1967] AC 617, in which Lord Reid stated as follows at pages 642B to 643A:
"Bolton v Stone posed a new problem. There a member of a visiting team drove a cricket ball out of the ground onto an unfrequented adjacent public road and it struck and severely injured a lady who happened to be standing in the road. That it might happen that a ball would be driven onto this road could not have been said to be a fantastic or far-fetched possibility: according to the evidence it had happened about six times in 28 years. And it could not have been said to be a far-fetched or fantastic possibility that such a ball would strike someone in the road: people did pass along the road from time to time. So it could not have been said that, on any ordinary meaning of the words, the fact that a ball might strike a person in the road was not foreseeable or reasonably foreseeable - it was plainly foreseeable. But the chance of its happening in the foreseeable future was infinitesimal. A mathematician given the data could have worked out that it was only likely to happen once in so many thousand years. The House of Lords held that the risk was so small that in the circumstances a reasonable man would have been justified in disregarding it and taking no steps to eliminate it.
But it does not follow that, no matter what the circumstances may be, it is justifiable to neglect a risk of such a small magnitude. A reasonable man would only neglect such a risk if he had some valid reason for doing so, e.g., that it would involve considerable expense to eliminate the risk. He would weigh the risk against the difficulty of eliminating it. If the activity which caused the injury to Miss Stone had been an unlawful activity, there can be little doubt but that Bolton v Stone would have been decided differently. In their Lordships' judgment Bolton v Stone did not alter the general principle that 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. What that decision did was to recognise and give effect to the qualification that it is justifiable not to take steps to eliminate a real risk if it is small and if the circumstances are such that a reasonable man, careful of the safety of his neighbour, would think it right to neglect it."
- Mr McCaul QC and Mr Reddiford submitted, therefore, based on these authorities, that it is important to distinguish between two separate questions: first, whether foreseeability has been established, and secondly, if it has been established, whether it was incumbent on the party owing the duty of care to have taken steps to seek to prevent the risk of injury which is regarded as having been reasonably foreseeable. Mr McCaul QC and Mr Reddiford submitted that for foreseeability purposes what is important is that there is a real risk which is foreseeable; it has to be more than merely a possibility but it does not have to be likely and so amount to a probability. Mr Browne QC, Mr Harris and Mr Tavares, on the other hand, submitted that more than this is required. They relied in this context on Orchard v Lee [2009] EWCA Civ 295, [2009] PIQR P16. This, however, was a case in which it was admitted by the relevant defendant, a schoolboy who had been playing tag with another boy whilst at school and ran into the claimant, a lunchtime assistant supervisor, injuring him. The issue, therefore, was not whether a duty of care was owed, and so whether injury such as that suffered by the claimant was reasonably foreseeable, but, as Aikens LJ put it at [22], "whether the conduct of S, as a 13-year-old boy, fell below the standard to be expected of a reasonable 13-year-old boy in the circumstances in which S found himself that afternoon, so as to constitute negligent behaviour". This, then, is the context in which Aikens LJ went on to say what he said in the next paragraph, [23], the paragraph relied on by Mr Browne QC, Mr Harris and Mr Tavares:
"The question of whether a person has acted negligently is not answered simply by analysing what he did or did not do in the circumstances that prevailed at the time in question and then testing it against an objective standard of 'reasonable behaviour'. Before holding that a person has acted negligently so as to be liable in an action for negligence, the court must be satisfied that a reasonable person in the position of the defendant (i.e. the person who caused the incident) would contemplate that injury is likely to follow from his acts or omissions. Nor is the remote possibility of injury enough; there must be a sufficient probability of injury to lead a reasonable person (in the position of the defendant) to anticipate it. …".
- In the circumstances, it seems to me that the Orchard case is more likely, on analysis, to be addressing the second of the questions which Mr McCaul QC and Mr Reddiford identified, and not the foreseeability question as it arises in the context of whether a duty of care is owed. In much the same way, in the Hufton case (a case relied upon by Mr Tavares in his Written Closing Submissions in the context of breach, not foreseeability) the decision of the Court of Appeal was not that a duty of care was not owed by the local authority but that there was no liability because there was "a reasonable system in place to prevent the hall floor from becoming wet, even though that system failed in the present instance" (see, again, [31]).
- In contrast possibly, in West Sussex County Council v Pierce [2013] EWCA Civ 1230, [2014] PIQR P5, the Court of Appeal appears to have taken the view that the section 2(2) "common duty of care" under the 1957 Act did not apply in circumstances where there was merely a possibility that a particular accident involving a water fountain at a school might occur (see the judgment at [12] where reference is made to the trial judge's approach). Sharp LJ held as follows at [17] and [18]:
"17. The question which has to be addressed therefore is whether as a matter of objective fact, visitors to the School were reasonably safe in using the premises, including for this purpose, the water fountain, bearing in mind of course that children do not behave like adults, and are inclined to lark around.
18 In my view the answer to that question is yes. The water fountain was reasonably safe, or putting it another way, the evidence did not establish that it was not. This court looked at and felt the underside edge of the water fountain. I do not think it can be described as sharp, let alone extremely sharp. It was not possible for example to cut a finger by pressing on it. But whether it could be described as sharp or not, by no stretch of the imagination could it be said to constitute a danger to children. Certainly, the edge could have been bevelled, or padded, and had that been done, the claimant might not have injured his thumb. But to say that misses the point it seems to me. The School was not under a duty to safeguard children against harm under all circumstances. Each case is of course fact sensitive, but as a matter of generality, the School was no more obliged as an occupier to take such steps in respect of the water fountain than it would be in respect of any of the other numerous ordinary edges and corners or surfaces against which children might accidentally injure themselves whilst on the premises. The law would part company with common sense if that were the case, and I do not consider that it does so."
Consistent with this approach, Mr McCaul QC and Mr Reddiford did not in the present case suggest that mere possibility would be sufficient to give rise to a duty of care. Their submission was, rather, that what is not required is a risk of injury which is probable. I agree. I am clear that if there is a risk which can properly be described as real, then that is sufficient. In the present case, in view of the conclusions which I have reached concerning the first and second points of legal controversy, it follows that I conclude that the existence of a duty of care has been made out, although whether there has been a breach of that duty of care, bearing in mind in particular the point made concerning the foreseeable injury being only of a minor nature, is a separate mater to which I shall return.
- My conclusion as just stated is subject, however, and lastly, to the fourth of the legal issues raised by Mr Browne QC, Mr Harris and Mr Tavares, which is their point that the fact that it is necessary for a third party (in the present case whoever lifted the ramp on Mr Lear's horsebox) to act in a certain way for a foreseeable risk of injury to manifest either precludes the duty extending to the consequences of that third party's act or means that a higher degree of foreseeability is required than would otherwise be the case. There is an overlap here, obviously, with the reliance by Mr Browne QC, Mr Harris and Mr Tavares on the causation principle of novus actus interveniens, as described in Clerk & Lindsell at paragraph 2-107, a passage relied upon by Mr Brown QC, Mr Harris and Mr Tavares:
"No precise or consistent test can be offered to define when the intervening conduct of a third party will constitute a novus actus interveniens sufficient to relieve the defendant of liability for his original wrongdoing. The question of the effect of a novus actus 'can only be answered on a consideration of all the circumstances and, in particular, the quality of that later act or event'. Four issues need to be addressed. Was the intervening conduct of the third party such as to render the original wrongdoing merely a part of the history of events? Was the third party's conduct either deliberate or wholly unreasonable? Was the intervention foreseeable? Is the conduct of the third party wholly independent of the defendant, i.e. does the defendant owe the claimant any responsibility for the conduct of that intervening third party? In practice, in most cases of novus actus more than one of the above issues will have to be considered together."
- However, the submission which is also made is one which, understandably in the circumstances as the concepts are inter-linked, relates to the question of whether a duty of care is owed in the first place. Reliance in this context was placed on the following observations by Stephenson LJ in Knightley v Johns and Others [1982] 1 WLR 349 at pages 366H to 367A:
"The question to be asked is accordingly whether that whole sequence of events is a natural and probable consequence of the first defendant's negligence and a reasonably foreseeable result of it. In answering the question it is helpful but not decisive to consider which of these events were deliberate choices to do positive acts and which were mere omissions or failures to act; which acts and omissions were innocent mistakes or miscalculations and which were negligent having regard to the pressures and the gravity of the emergency and the need to act quickly. Negligent conduct is more likely to break the chain of causation than conduct which is not; positive acts will more easily constitute new causes than inaction. Mistakes and mischances are to be expected when human beings, however well trained, have to cope with a crisis; what exactly they will be cannot be predicted, but if those which occur are natural the wrongdoer cannot, I think, escape responsibility for them and their consequences simply by calling them improbable or unforeseeable. He must accept the risk of some unexpected mischances …".
- Similarly, in the Hartwell case Lord Nicholls said this at [25]:
"The better approach is to recognise that, as with the likelihood that loss will occur, so with the likelihood of wrongful third party intervention causing loss, the degree of likelihood needed to give rise to a duty of care depends on the circumstances. In some circumstances the need for the high degree of likelihood of harm mentioned by Lord Reid may be an appropriate limiting factor in cases involving deliberate wrongful human actions. In other cases foresight of a lesser risk of harm flowing from a third party's intervention will suffice to give rise to a duty of care. The law of negligence is not an area where fixed absolutes of universal application are appropriate. In each case the governing consideration is the underlying principle. The underlying principle is that reasonable foreseeability, as an ingredient of a duty of care, is a broad and flexible objective standard which is responsive to the infinitely variable circumstances of different cases. The nature and gravity of the damage foreseeable, the likelihood of its occurrence, and the ease or difficulty of eliminating the risk are all matters to be taken into account in the round when deciding whether as a matter of legal policy a duty of care was owed by the defendant to the plaintiff in respect of the damage suffered by him."
- It seems to me that this is not inconsistent with Mr McCaul QC's and Mr Reddiford's position that the fact that it is necessary for a third party to act in a certain way for a foreseeable risk of injury to manifest does not preclude the duty extending to the consequences of the third party's act, and nor does it, in the circumstances of this case, require a higher degree of foreseeability. I agree with them that the Everett case involving a night-club shows that this is the position. There, Smith LJ stated as follows at [35] and [36]:
"35 Lord Faulks urged the court to say that any such duty (including the standard of care) should be narrowly drawn. I think that he had in mind the kind of definition which the court applied in the Dorset Yacht case where a high degree of foreseeability of the kind of harm in question was to be required before there could be liability. I am not prepared to say that, as between the managers of a nightclub and guests, there should be a higher degree of foreseeability than is required under the common duty of care in the Occupiers' Liability Act 1957. The degree of proximity (including the economic relationship) between the two is so close that I do not think any special rule of foreseeability is required in the interests of fairness, justice and reasonableness. …
36 The common duty of care is an extremely flexible concept, adaptable to the very wide range of circumstances to which it has to be applied. It can be applied to the static condition of the premises and to activities on the premises. It can give rise to vicarious liability for the actions of an employee of the occupier who, for example, might have created a temporary tripping or slipping hazard. I think that it is appropriate (fair, just and reasonable) that it should govern the relationship between the managers of an hotel or nightclub and their guests in relation to the actions of third parties on the premises. I do not think it possible to define the circumstances in which there will be liability. Circumstances will vary so widely. However, I think it will be a rare nightclub that does not need some security arrangements which can be activated as and when the need arises. What they need to be will vary. One can think of obvious examples where liability will attach. In a nightclub where experience has shown that entrants quite often try to bring in offensive weapons it may be necessary to arrange for everyone to be searched on entry. In a nightclub where outbreaks of violence are not uncommon, liability might well attach if a guest is injured in an outbreak of violence among guests and there is no one on hand to control the outbreak. It may be necessary for the management of some establishments to arrange for security personnel to be present at all times within areas where people congregate. … ."
I agree with Mr McCaul QC and Mr Reddiford when they submitted that Mr Lear's relationship to Hickstead was akin to that of manager and guest in Everett: he was an invitee. As such, no higher degree of foreseeability applies in relation to the acts of any third parties in his case.
The present case
- Drawing together the threads, Mr Lear's case is that personal injury being suffered as a result of raising or lowering horsebox ramps belonging to another was reasonably foreseeable, and that this is all that is required to establish the existence of a duty of care at common law. I agree with Mr McCaul QC and Mr Reddiford about this. As I have previously explained, I reject the submission made by Mr Browne QC, Mr Harris and Mr Tavares that it is incumbent upon Mr Lear to establish what Mr Browne QC and Mr Harris described in their Written Closing Submissions as "quite an unrealistic level of foresight" entailing foreseeability of the eleven events which they have identified. It is not, in short, necessary that what precisely happened to Mr Lear, described by Mr Roger Brown, a former policeman employed by Hickstead to oversee health and safety matters at its various shows, as "a tragic freak accident", needed to be reasonably foreseeable.
- The evidence clearly demonstrated that it was reasonably foreseeable that people might have to raise or lower other peoples' horsebox ramps. This was evidence which was given not only by Mr Lear himself, but also by his son, Peter, and by Mrs Greenwood Hunt, who stated in her witness statement that "It is quite common to have to lift somebody else's ramp, but you would always make sure it is put back down again". Indeed, Mr Brown himself acknowledged that this is the position when asked about it in cross-examination by Mr McCaul QC. So, ultimately, did Mr Bunn, albeit that he maintained that he had not himself actually seen it done and that he was unaware of it being done at Hickstead. Moreover, despite being somewhat reserved when being cross-examined on the topic by Mr McCaul QC, Mr Hinckley was explicit in his witness statement, stating there as follows:
"I understand Mr Lear's ramp was placed in the up position by persons unknown after he had left his vehicle. It is not unheard of for a horsebox ramp to be raised by some third party, if the ramp in the down position is causing an obstruction and the owner of the box is not around to raise it; I have done it myself, in the past. What is unusual (particularly on a warm day, and where there is a horse in the box) is that when such people raise someone else's ramp for this purpose, they cannot be trusted to immediately put it back down again after they have passed through."
- I am satisfied also that it was reasonably foreseeable that raising or lowering other peoples' horsebox ramps might cause personal injury. Again, the evidence clearly supported this proposition. In cross-examination, Mr Brown acknowledged that there were risks in raising and/or lowering an unfamiliar spring-loaded ramp, as well as in manually raising a hydraulic ramp. Mr Bunn was also asked if raising ramps might be a hazard. He replied that the person doing so could hurt themselves, although he then qualified his answer by saying that it was not a significant risk. I am clear, in these circumstances, that these were risks which Mr Brown and Mr Bunn appreciated in advance of Mr Lear's accident, albeit that I reject the suggestion made by Mr McCaul QC and Mr Reddiford that Mr Brown should be taken as having foreseen Mr Lear's particular accident because of the conclusion which he quickly reached after arriving on the scene when he talked to eyewitnesses who suggested that three people had been involved in lifting Mr Lear's horsebox's ramp and checked under the horsebox to ascertain whether there was any leakage from the hydraulic system discovering that there was no evidence of such leakage. It is quite clear, as Mr Tavares submitted, that Mr Brown, using his long experience as a traffic policeman, simply arrived at the conclusion which he did by a process of logical deduction, and not because he had previously ever contemplated the circumstances of Mr Lear's accident. I reject also the submission made by Mr McCaul QC and Mr Reddiford that the particular accident which befell Mr Lear would, or should, have been foreseen by Mr Brown, or for that matter by Mr Bunn, because of press coverage relating to an earlier accident, not at Hickstead but elsewhere, involving Mrs Sharon Watts. This was an accident which happened because Mrs Watts's horsebox had been parked facing uphill, meaning that there was an extra weight of gravity on the lowered ramp which the hydraulics could not manage. In Mr Lear's case, his horsebox was not parked facing uphill, and nor were any of the other horseboxes at Hickstead on 30 July 2011; indeed, it is clear that the Hickstead practice has always been to park vehicles facing downhill.
- In short, the evidence in this case is quite sufficient to prove a reasonably foreseeable risk of physical injury due to raising or lowering ramps. The fact that the nature of the personal injury which would have been foreseeable was of a different scale is not what matters. It is enough that it was reasonably foreseeable that the act of raising a ramp gives rise to a risk of personal injury, whether that be a straining injury suffered because the ramp is lifted manually when it ought not to be or otherwise, and that the act of lowering a ramp gives rise to a foreseeable risk of personal injury. I reject the submission made by Mr Browne QC, Mr Harris and Mr Tavares that, since what was reasonably foreseeable was a minor injury at most, this is inadequate to give rise to a duty of care. This is not a submission which accurately reflects the correct legal position. If, as is submitted, the risk is only of a minor injury and if, again as is submitted, even this would have been regarded as a remote possibility, it may be that a reasonable person in the position of Hickstead and WH would have decided that particular, or additional, steps were not required to be taken to guard against it. This, however, is a matter which goes not to the question of whether the risk was reasonably foreseeable such as to give rise to the existence of a duty of care, but to the question of whether there has been a breach of that duty of care. This distinction is borne out by the fact that, in their Written Closing Submissions, the point was made by Mr Browne QC and Mr Harris that:
"Adequate precautions were put in place: there was a reasonable parking system and telephone numbers of drivers were required to be displayed. A reasonable person applying common sense would not have done more."
This is a submission which was really directed at the question of breach.
- Nor, for reasons which I have previously explained, does it make any difference that what might have been reasonably foreseeable was that a third party might injure himself or herself, not that Mr Lear, as the owner of the horsebox whose ramp was lifted, would do so. Mr Browne QC and Mr Harris submitted that "there was no danger at all that [Mr Lear] would injure himself trying to lift the ramp", going on to suggest that Mr McCaul QC's and Mr Reddifiord's submissions entail the proposition "that reasonable foreseeability in the present case can be established by establishing a small risk of a different injury to a different class of person at a different time, in different circumstances where there was no foreseeable or actual risk of injury to [Mr Lear] himself" and that such a proposition lacks "any legal or factual merit". The Doughty case relied upon by Mr Browne QC and Mr Harris does not, in my view, justify this criticism. It is sufficient, as Mr McCaul QC and Mr Reddiford submitted, that it was reasonably foreseeable that visitors generally (not Mr Lear specifically) to the Stable Field might suffer personal injury if horseboxes were so parked that it became necessary to raise and/or lower horsebox ramps.
- Lastly, I should mention a particular point which was raised by Mr Tavares on Hickstead's behalf. This is the fact that the "General Rules and Regulations" written on the back of the Entry Form with which Mr Lear was provided in the context, specifically, of the 2011 Longines Royal International Horse Show and with which he had been provided numerous times previously, provides at Clause 11 that "Neither the All England Jumping Course nor the Executive nor Hickstead Limited … shall be liable in any way for accidents, injury, damage, loss". Although Mr Tavares conceded that liability for personal injury resulting from negligence cannot be excluded, his submission was that nonetheless I should take account of Clause 11 when considering the scope of the "common duty of care" and presumably also the duty of care at common law. I disagree. Either Clause 11 is valid so that liability for negligence is excluded, or it is not. Since it is not, as Mr Tavares accepted, I take no account of it.
- I am clear, in all the circumstances, that the duty of care contended for on Mr Lear's behalf existed in this case. It does not, of course, follow, however, that Mr Lear's case succeeds since it is necessary, if it is to succeed, that breach of duty be established. This, then, is the topic to which I now turn.
Has breach been established in this case?
- In considering whether Mr Lear's case on breach of duty has been established, it is important to appreciate that this is a case which can only succeed, against either Hickstead (under the "common duty of care" under section 2(2) of the 1957 Act or the common law duty of care to which I have decided Hickstead was subject) or WH (under the common law duty of care), if I were to decide, on a balance of probabilities, that Mr Lear's horsebox created an obstruction in the Stable Field, that this was the reason why whoever lifted it did so, and that the obstruction (if there was one) was the result of a breach of duty on Hickstead's and/or WH's part. Only if I am satisfied as to each of these matters will Mr Lear be successful in these proceedings.
- It was Mr McCaul QC's and Mr Reddiford's submission that the most likely reason for Mr Lear's horsebox's ramp being raised was that it created an obstruction. They made the point that, as the evidence to which I have referred demonstrated, in particular Mr Hinckley's own evidence in his witness statement as set out above, that ramps need to be lifted on occasions for this reason. They suggested that there can be no other reason why the ramp was raised, highlighting that lifting it manually would have been a physically strenuous task since it would have involved fighting against the hydraulic system, so making it unlikely that the people who lifted the ramp did so for no reason. Mr McCaul QC and Mr Reddiford went on to place substantial reliance on the evidence which was given by Captain Hunt and his wife Sallyann Greenwood-Hunt, both of whom described there having been insufficient room in the front of their horsebox, which was parked at right angles towards the front of Mr Lear's horsebox in a row from which, it was common ground, it ought to have been possible to drive out forwards in order to exit, rather than to reverse to do so. There was also evidence from Mrs Young that on 30 July 2011 the parking was "pandemonium" with "no organised system of parking at all". The "certain fact", Mr McCaul QC and Mr Reddiford submitted, is that there was insufficient room, and that whoever raised the ramp to get access to, or more likely egress from, the row which included the Hunts's horsebox could not have been able to gain access or egress from the row by driving forwards. Had they been able to drive forwards, there would have been no need to raise the ramp on Mr Lear's horsebox and it would not have been touched.
- I cannot accept these submissions. I am not satisfied that it has been established that there was an obstruction caused by Mr Lear's horsebox and that this, therefore, was the reason why the ramp on his horsebox was raised. I acknowledge that there is a degree of force in Mr McCaul QC's and Mr Reddiford's submission that a reason why ramps on other people's horseboxes are lifted is because they are causing an obstruction. I do not agree, however, that this is the only reason why the ramp was lifted. I bear in mind, in particular, that it was Mrs Faggetter's evidence that sometimes people will wish to avoid queues and "they might want to go out backwards" for that reason – in other words, that this can happen even if there is room in front of a horsebox. It is significant that the same witness explained that the previous year, when she was directed to park where Mr Lear parked in 2011, she was pleased to be put where she was because it enabled her, when she came to leave in her horsebox, to do so without having to follow the road around the Stable Field and only then gain egress by joining up with the service road where her horsebox was parked in 2010 and where Mr Lear's horsebox was parked in 2011.
- It is also to be noted that Mrs Faggetter, a very experienced horsewoman who has attended many national showjumping events, described the parking procedures in the Stable Field as being "very good" and stated that parking at Hickstead compared favourably to other events. This was evidence given by Mrs Faggetter when being cross-examined by Mr Browne QC. It was evidence which followed a witness statement in which she had stated as follows at paragraphs 18 to 20:
"18. Mr Lear's lorry was parked on a corner but it seemed clear to me that any horseboxes parked either side could have easily pulled forwards so there was a gap ahead of them to the next lane which is what I would have done.
19. From what I could see there would have been no need for anyone to lift the ramp up. It appeared that the person that must have lifted the ramp could easily have pulled their lorry forwards as there was plenty of space although this would mean they would have further to queue to the exit than if they chose to reverse.
20. The parking procedures at Hickstead are very good and have always been the same, nothing has changed over the years I have been attending."
Furthermore, Mrs Faggetter confirmed also that in the previous year she had had no concerns about causing obstruction when she parked her horsebox in the place where in 2011 Mr Lear's horsebox was parked. Significantly also, when cross-examined by Mr Tavares, Mrs Faggetter explained that on the day of the accident, 30 July 2011, she knew "there was a gap because I walked my horse around and walked past the front of those vehicles", namely the horseboxes in the row to which Mr Lear's horsebox was parked at right angles and where the Hunts's horsebox was parked.
- However, it is not only Mrs Faggetter's evidence which needs to be considered. It was Captain Hunt's own evidence that there was a 15 metre space in front of the horseboxes in the row where his horsebox was parked. Mr McCaul QC and Mr Reddiford suggested that this was evidence which was plainly given in error. However, I am not convinced by that suggestion, especially as Captain Hunt also explained in evidence that he and his wife had been able to drive past Mr Lear's horsebox along the service road and into the row where his horsebox then came to be parked, having asked to be moved from where WH's employees had initially positioned their horsebox. It is clear that for this to have been possible, and for the Hunts's horsebox then to reverse into the parking space where it ended up, there must have been sufficient space in front of the horseboxes in the row behind which Mr Lear parked his horsebox at right angles. Captain Hunt's evidence, therefore, that there was a lack of space in front of that row is, in my view, not wholly reliable.
- Importantly also, Mr Lear himself accepted that his horsebox did not constitute an obstruction when it was parked shortly before midday. As he put it in his witness statement:
"If I had believed that my vehicle was causing an obstruction, I would not have parked where I did. When I left my lorry, with the ramp down I did not believe that it was causing an obstruction."
I am clear, having heard Mr Lear give evidence in an entirely straightforward manner, that this was, indeed, the position. I am sure that, however much he wanted to park as near as possible to the main arena and ideally, therefore, not in the outer field, Mr Lear would not have allowed his horsebox to be parked in a place where it caused an obstruction. Mr Lear is an experienced horseman and horse show attendee. As such, he would know very well how important it is not to cause an obstruction. I am equally clear that, if he had thought that by lowering the ramp on his horsebox he would be causing an obstruction, then he would not have lowered the ramp and left the horsebox alone for some 4 hours or so. Mr Lear confirmed, furthermore, that, when he returned to check on his horse at about 12.30 pm, his horsebox was not an obstruction at that stage either. He went on to confirm that his horsebox was not creating an obstruction when he returned to it shortly before the accident.
- Mrs Lear also agreed that, when she arrived on the scene having rushed back to Hickstead on being told that her husband had been involved in an accident, Mr Lear's horsebox was "certainly not causing any obvious obstruction", evidence which Peter Lear explained in cross-examination by Mr Browne QC he was not in a position to gainsay. He acknowledged also that, although he had stated in his witness statement that his father's horsebox "would have been an obstruction if someone was trying to get out, especially if his ramp was down", if horseboxes in the next row were able to go forwards, then Mr Lear's horsebox would not have been an obstruction. I am satisfied that, in the circumstances, Peter Lear's evidence was not concerned with the space in front of the row where the Hunts's horsebox was parked. In truth, it is understandable that Peter Lear should not have a particularly good recollection of the location of the horseboxes when he arrived on the scene after his father had had his accident. His focus, quite obviously, was on helping his father, not on studying where horseboxes in the row next to his father's horsebox were.
- In addition, Mr Jonathan Martin, a friend of Mr Lear and somebody who saw Mr Lear's horsebox at about 3.45 pm, explained that, whilst Mr Lear's horsebox "stuck out because he was not facing in the same direction as all the other lorries", evidence which I consider underlines the fact that horseboxes were generally parked in orderly rows since it supports the evidence given by Mr Bunn and Mr Hinckley that horseboxes were all parked facing downhill, Mr Lear's horsebox "was not blocking anybody's route in or out of the park". Mr Martin is experienced in attending horse shows. He is, as he explained, involved in livery and trailer hire. He would know whether there was an obstruction or not caused by Mr Lear's horsebox. As far as Mr Martin was concerned, as he explained in cross-examination by Mr Browne QC, at Hickstead it was "normally fine to drive out forwards", albeit that "sometimes you have to do a bit of a jiggle". I am clear that, had Mr Martin thought that the position was any different when he saw Mr Lear's horsebox as he was leaving on 30 July 2011, he would have recalled that this was the case. Similarly, Mr Martin's mother, Mrs June Martin, the most experienced with horses of all the witnesses, confirmed that, when she and her son were leaving, Mr Lear's horsebox "was not causing an obstruction". Specifically, she said this in paragraph 8 of her witness statement:
"When we left, Mr Lear's lorry was not causing an obstruction. We did not have a problem getting around his lorry. Mr Lear was parked near the edge of the field leading on to another field where stables were kept. Any lorries parked on the field next to the stables would not have had a problem getting past either."
- This leaves the evidence which Mrs Young gave in which she suggested that there was a state of "pandemonium". Although I do not doubt that Mrs Young was giving evidence which she believed to be true, I am doubtful that she can be right about this. It is evidence which is wholly at odds with the evidence given by every other witness, including even the Hunts. Notably, in their Written Closing Submissions Mr McCaul QC and Mr Reddiford did not place reliance on Mrs Young's evidence, instead acknowledging that "the format of parking was based on there being 8 rows of lorries", albeit that they suggested that the parking "did not comply with or remain in that format". It was not suggested, however, that there was quite the picture of chaos which Mrs Young painted. I agree with Mr Tavares when he observed in his Written Closing Submissions that Mrs Young's characterisation of the parking at Hickstead is not only at odds with the evidence given by other witnesses but also that it was somewhat surprising that Mrs Young should compare Hickstead unfavourably with the Blair Castle horse show where the parking is also managed by WH.
- I conclude, in the circumstances, that the reason why Mr Lear's horsebox ramp was raised was, in all probability, not because horseboxes could not move forwards from the row next to Mr Lear's horsebox, and not because Mr Lear's horsebox was, therefore, causing an obstruction, but because, as Mrs Faggetter explained, people sometimes wish to gain quicker egress than driving their horseboxes in a forwards direction permits. In view of this conclusion, the claim must fail. This applies both to Hickstead and to WH. This is because it cannot be said that Hickstead and WH did anything which resulted in an obstruction which led to the raising of the ramp on Mr Lear's horsebox.
- Even if there had been an obstruction, however, it would still not have followed that liability would have been established in this case. This would all the more be the position, if the obstruction caused by Mr Lear's horsebox was merely temporary. I agree with Mr Browne QC, Mr Harris and Mr Tavares that it does not follow that this would mean that there has been a careless act or omission on the part of Hickstead and WH since it cannot reasonably be expected that every movement of every vehicle on the Stable Field will be controlled at all times. I am clear that reasonable care does not mean an absolute duty to prevent any obstruction ever occurring. I agree, specifically, with Mr Tavares when he submitted in his Written Closing Submissions that:
"When parking over 1,000 lorries of all different shapes and sizes, with ramps in different positions, and with vehicles coming and going throughout the day, it would not be possible (or reasonable) to expect that obstructions could never occur. It was not proportionate to monitor every single vehicle movement throughout the course of the show, and to suggest otherwise would again be unrealistic. It was not, in event, in the defendants' interests for obstructions to occur."
- This seems to me to find an echo in the approach adopted by Jackson LJ in the Hufton case, the case involving a wet floor at a school, when he stated as follows at [28]:
"It is not possible, and the law does not require, the occupier of premises to take measures which would absolutely prevent any accident from ever occurring. What is required both by the common law and by s 2 of the Occupiers' Liability Act 1957 is the exercise of reasonable care."
In that case, the trial judge had concluded as follows:
"Insofar as door procedures were concerned, I reject the evidence of the claimant and Mr Wilkinson. I find that this was a well–run school and, notwithstanding occasional breaches of the rules of admission when a pupil would be admitted by a prefect, I find that the staff were vigilant about such matters and dealt with any breaches appropriately."
Jackson LJ agreed, saying this at [31] in a passage to which I have previously referred:
"Having read and re–read the evidence in this case, I am quite satisfied that the judge was entitled to make the findings of fact set out in those paragraphs. Furthermore, there is no basis upon which this court could interfere with the judge's evaluation of the facts or his conclusion that the defendant had a reasonable system in place to prevent the hall floor from becoming wet, even though that system failed in the present instance."
- I agree with Mr Tavares when he submitted that similarly the mere presence of a vehicle obstruction does not amount to a breach of duty provided that there was a reasonable system in place which was designed to try and prevent obstructions arising. This approach is consistent also with the approach adopted by Sharp LJ in the West Sussex case when she referred to the school not being "under a duty to safeguard children against harm under all circumstances", albeit that it may be that the observation was made in the context of considering whether the requisite foreseeability had been made out rather than when dealing with breach. It is in this context also that what would have been reasonably foreseeable would not have been an injury as severe as that suffered by Mr Lear but a more minor injury such as a strained back. As Mr McCaul QC and Mr Reddiford acknowledged when making the point that there is a distinction between, on the one hand, whether foreseeability has been established and, on the other hand, if foreseeability has been established, whether it was incumbent on the party owing the duty of care to have taken steps to seek to prevent the risk of injury which is regarded as having been reasonably foreseeable, the more remote the risk or the more minor the injury which is foreseeable, the more a party may be justified in not taking further steps to safeguard against the risk.
- Having considered the evidence which is available to me, I am quite satisfied that WH had a system of parking which meant that obstruction was generally avoided, and which meant that, if there was an obstruction, there were measures which were appropriate to deal with it, so as to mean that people would, or should, not have to raise rams on horseboxes belonging to others. I have considered, in particular, the evidence which was given by Mr Bunn and Mr Hinckley. I find that the system entailed, as I have previously mentioned and as acknowledged by Mr McCaul QC and Mr Reddiford, the parking of horseboxes in the Stable Field in eight rows spreading across the field and around the perimeter of the track, with the horseboxes facing downhill to the south and the main arena. This is a system which has been in place for many years. It is, in particular, the system which is apparent from an aerial photograph which was before me and which Mr Bunn explained he took using a drone, which he had purchased, during the 2014 Longines Royal International Horse Show. The same photograph shows, as I have indicated, that horseboxes are also allowed to be parked at the northern edge of the Stable Field alongside the service road which leads out of the parking area and where Mr Lear parked his horsebox in 2011 and Mrs Faggetter had done in 2010. Although it is plain that, owing to differing horsebox lengths, the eight rows are, and I am satisfied were in 2011, not entirely uniform, it is nonetheless clear to me that the rows are distinct and, crucially, that there is adequate space between them to allow horseboxes to move forwards when leaving. That, Mr Hinckley explained, was the system and I accept that evidence, supported as it is by a number of witnesses, including Mrs Faggetter and Mrs Martin. I find also that the system in operation involved all vehicles being individually directed to a parking space by members of WH's parking team. This was not only what Mr Hinckley stated happened. It was also what Mr Lear stated happened when he parked where he did. As he put it when being cross-examined by Mr Browne QC, "at Hickstead you are put where you are told to go". It was also the evidence of Captain Hunt and his wife, Mrs Faggetter and Mrs Martin. This is a system which, I am clear, was almost always adhered to. In addition, it is clear that the system involved drivers being required to display their telephone numbers on their passes and placed in the windscreen of their horseboxes, so that they could be contacted in the event that the owner needed to be contacted, including if their vehicle was causing an obstruction and needed to be moved. Mr Lear himself did this. Sadly, however, whoever lifted the ramp on his horsebox did not make contact with him. Nor did they contact WH's team to ask that they contact Mr Lear or to ask that they themselves lift the ramp.
- I consider that this is a system which was entirely reasonable. I bear in mind also that, as demonstrated when Mr Hinckley was cross-examined by Mr McCaul QC, he and his team, being very experienced in managing parking at horse show events, had considerable personal familiarity with the identity of many of the individuals and horseboxes attending the show. Whilst clearly such knowledge can be no substitute for a proper system designed to avoid obstruction, it does nonetheless seem to me to underpin the fact that the people operating the system, Mr Hinckley and his team (the people, literally, who were 'on the ground') knew what they were doing. Mr Hinckley, for example, when asked about a particular group of vehicles in the 2014 aerial photograph, specifically why they were not parked in as orderly a fashion as the system demanded, was able very knowledgeably to explain that he had had a row with the owner of the vehicles in question, all of which were owned by one person and so there was not quite the need for the same amount of spacing as would otherwise have been the case.
- It is helpful also in this context to consider what else might have been done since I struggle to see, being realistic about matters, that a better system could have been put in place. In his Written Closing Submissions, Mr Tavares identified a number of measures which he suggested would need to have been taken if an accident such as that which happened to Mr Lear was to be avoided. He referred to horseboxes having to keep their ramps shut save for immediate loading or unloading, to every movement of every horsebox within the Stable Field having to be marshalled, and to the spacing between horseboxes having to be so great as to mean that no obstruction could ever, conceivably, occur. In my view, these are measures which would have been quite unrealistic and impractical. Taking the last suggestion by way of example, as Mr Tavares pointed out, this would mean horseboxes spread over a vast area with much longer distances for people to walk to reach the show site. It would also mean, as Mr Bunn explained, that people would engage in unauthorised 'fly-parking' between horseboxes, so heightening the risk of obstruction rather than reducing it. Likewise it would be simply unrealistic to expect that every time a horsebox moved, perhaps even just a few feet, a member of the WH team should be on hand. The number of horseboxes over the course of the event would make this impossible. In short, to require that these sorts of steps were taken would elevate the nature of the duty owed (whether under the 1957 Act or at common law) into an obligation absolutely to prevent any accident from ever occurring rather than merely to exercise reasonable care. This would run wholly counter to the correct approach as explained by Jackson LJ in the Hufton case at [28].
- I would add that I do not consider that the conclusion which I have reached concerning the reasonableness of the system turns on the point which Mr Browne QC, Mr Harris and Mr Tavares made about the foreseeable risk being only of a minor injury and a remote possibility, so as to mean that a reasonable person in the position of Hickstead and WH would have decided that particular, or additional, steps were not required to be taken to guard against it. I am satisfied that, regardless of the nature or likelihood of the risk which was reasonably foreseeable, the measures taken by Hickstead and WH in this case were reasonable and, accordingly, that no question of breach of duty arises.
- In the light of the conclusion which I have reached concerning Mr Lear's horsebox not being an obstruction where it was parked on 30 July 2011, and in view also of the conclusion which I have reached concerning the reasonableness of the system which was operated by WH on Hickstead's behalf, it is not strictly necessary that I should say anything about risk assessments, whether carried out by Hickstead or by WH. I am clear, however, having considered the evidence given by Mr Bunn and Mr Hinckley, that they appreciated the need to have a system in operation which avoided obstruction. I agree with Mr Tavares when he submitted in his Written Closing Submissions that Mr McCaul QC's and Mr Reddiford's focus on risk assessment documentation is overly prescriptive and somewhat unrealistic. What matters, I agree with Mr Tavares, is that Mr Bunn and Mr Hinckley aimed to avoid obstruction and employed a system which was designed to achieve this aim. The fact that nowhere is this recorded in writing seems to me to be immaterial. The more so, given the lack of previous problems with lorry ramps at Hickstead.
- Mr Bunn referred when giving evidence to WH having a "dynamic risk assessment". By this he meant that WH maintained a written parking policy which was updated every year (albeit that this policy did not expressly address obstruction issues) and that Mr Hinckley would prepare written debriefing documents each year which would then be available for the following year and preparation for the events which were to take place that year. Mr Bunn also apparently had in mind the fact that WH kept a log in which incidents were recorded. Whilst I agree with Mr McCaul QC and Mr Reddiford that this does not equate to the type of formal risk assessment which might have been undertaken, I am nonetheless still not persuaded that this means that I should conclude that a system designed to avoid obstruction, and which I regard as being reasonable, is unreasonable because of the absence of a formal risk assessment dealing with risks associated with obstruction generally and the lowering and raising of ramps specifically.
- Dealing lastly with the claim against Hickstead in particular, since I have concluded that there was no breach of duty on the part of WH, the independent contractor employed by Hickstead to manage parking at the 2011 Longines Royal International Horse Show, it must follow that Hickstead can be under no liability to Mr Lear in respect of what WH did in relation to parking management. Even if I had reached a different conclusion, however, deciding that there was a breach of duty on WH's part, it would not have followed that Hickstead would also have been liable to Mr Lear. On the contrary, it is clear to me that, in any event, Hickstead would not have been under such a liability. As to the common law position, I consider that Hickstead would have been entitled to avoid liability on the basis that its appointment of WH, a specialist parking management company with considerable experience of horse show events, to handle parking matters is not something which can be criticised. Hickstead was entitled to rely upon WH's expertise in the conduct of parking. As to the specific matters alleged by Mr McCaul QC and Mr Reddiford, I see nothing in the suggestion that Hickstead failed to give WH adequate instructions as to what to do. Mr Bunn and Mr Hinckley were clear that they had pre-event meetings and it is apparent that these meetings entailed the type of discussions which would have been required. I do not accept that it was incumbent upon Hickstead to tell WH about the risk that third parties might interfere with ramps on other people's horseboxes. This is something which Mr Hinckley already knew, as demonstrated by the answers which he gave when being cross-examined by Mr McCaul QC; he did not need to be told specifically about it by Mr Bunn and nor did Mr Bunn have to tell Mr Hinckley that Mr Brown knew that this type of thing sometimes happened at horse shows. Nor, in my firm view, is there any force in the contention that Hickstead is at fault for not having monitored WH's work. This is not an obligation under the common law, but it is something which, as I have previously explained, is part of the proviso contained in section 2(4)(b) of the 1957 Act. I am quite satisfied that what Mr Brown did, which was to visit the Stable Field three or four times a day to check that things were going well, something which it appears that Mr Bunn did also to some extent, was more than sufficient for these purposes.
- In conclusion, therefore, my decision is that Mr Lear has not established his case on breach. His claim must, accordingly, fail.
Other matters
- In the light of the conclusion which I have reached on the breach issue, it is not strictly necessary that I should go on and address the various other defences which were raised by Hickstead and WH. In the circumstances, however, I shall do so but only in relatively brief terms.
- First, although, having decided as I have done in relation to foreseeability in the context of determining whether a duty of care existed, it is not inevitable that I should decide that the damage suffered by Mr Lear is not too remote to be recoverable, nonetheless it seems to me that, in this case, it would not be right to conclude that Mr Lear's claim falls foul of the remoteness principle.
- Secondly, Hickstead and WH's position is that the cause of Mr Lear's accident was the action of persons unknown in raising the ramp. Their position is that they should not be held responsible for the voluntary act of a third party or third parties, relying on Topp v London Country Bus (South West) Ltd [1993] 1 WLR 976 and Chubb Fire Ltd v Vicar of Spalding & Others [2010] EWCA Civ 981. Such act or acts, it is submitted by Mr Browne QC, Mr Harris and Mr Tavares, each constituted a novus actus interveniens. Had it been relevant, which it is not in view of the conclusions which I have reached, I would have rejected this submission as, in my view, had there been an obstruction and had there been a breach of duty through Hickstead and WH not operating a reasonable system, then it could not legitimately be said that that breach was merely part of the history of events.
- Thirdly, as to the suggestion that Hickstead and WH can rely upon the defence of volenti non fit injuria, I see no merit in such a suggestion. Mr Lear was unaware of the risk of the ramp falling on him. He cannot, therefore, be regarded as having voluntarily accepted the risk that what happened to him would happen.
- Nor, lastly, is there any merit in the only very faintly pursued suggestion that Mr Lear was guilty of contributory negligence in parking where he did, in failing to display instructions to others not to close the ramp on his horsebox manually, and in opening his ramp whilst standing under it. Mr Lear parked where he was told to park, and since he was unaware of the risk that the ramp might fall if it was manually opened he had no cause to warn others not to open the ramp in such way. Nor, having returned to his horsebox to discover that the ramp had been raised, should Mr Lear have appreciated that the ramp had been manually closed. He was entitled to assume that whoever had closed the ramp had used the hydraulic system given that the hydraulic controls were clearly visible. In these circumstances, Mr Lear was wholly justified in opening the ramp catches as he did, standing not to the side but behind his horsebox which was his usual practice. In short, he was not negligent. Nor, in my view, although this is not strictly a matter of contributory negligence, is this a case in which it is open to Hickstead to rely upon section 2(3)(b) of the 1957 Act in order to lessen the level of care required of it as suggested by Mr Tavares as part of his criticism of Mr Lear's actions.
Conclusion
- At the beginning of this judgment, I described this as a tragic case. I observed also that it is impossible to have anything but sympathy for Mr Lear in his current position. It is understandable that he should feel that there should be redress for what he has been through since that fateful day in July 2011 when he suffered the terrible injuries which he did. For the reasons which I have given, however, he is not entitled to redress from Hickstead or WH as neither is liable to him. The claim is, in the circumstances, dismissed.
