B e f o r e :
LORD JUSTICE SINGLETON
LORD JUSTICE JENKINS
and
LORD JUSTICE PARKER
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Between:
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TREVOR PERRY
(an infant suing by his next friend Frederick Perry)
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v
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KENDRICKS TRANSPORT LTD
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(Transcript of the Shorthand Notes of The Association of Official Shorthandwriters, Limited ,
Room 392 Royal Courts of Justice, and 2 New Square, Lincoln's Inn, London W.0.2).
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MR. M.A.B. KING-HAMILTON QC and C P BURKE, instructed by Messrs. Peacock & Goddard, agents for Clulow & Rudge, Brierley Hill, Staffordshire,
appeared for the Appellant (Plaintiff).
MR. D.P.DRAYCOTT instructed by Messrs. Bentleys, Stokes & Lowless agents for Turner, Bayley & Co., Dudley,
appeared for the Respondents (Defendants).
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HTML VERSION OF JUDGMENT
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Crown Copyright ©
LORD JUSTICE SINGLETON: This is an appeal from a judgment of Mr Justice Lynskey given at Birmingham Assizes on 26th July of this year. The claim was brought by the next friend of a boy named Trevor Perry, who was injured in somewhat unusaual circumstances. The accident to him occurred at Dudley on 29th October, 1952. The boy was 10 years old. He lived in Jasmine Road, Dudley, and he went to St John's school, which is in St John's Road. he could make the journey to school by crossing some waste land, of which there was a good deal in the neighbourhood of the school. The defendants, Kendricks Transport Limited, had premises and a garage in Brewery Street, which had waste land on both sides of it. At the south end of their premises there was an open vehicle park. That was clearly marked on the south side by a bank and a small wall, but it was open. People who wished to cross the waste land might go through the defendants' vehicle park, although they were not supposed to do so. The defendants objected to it and did what they could to prevent people going through the vehicle park. Boys played in the vehicle park or passed through it. They were chased away whenever they were seen. Sometimes there were quite a number of coaches on the parking ground, for the defendants were both a garage and coach proprietors.
At the end of October 1952 there was a Leyland coach at the south-west corner of the parking ground. It had been there for perhaps three months. There was some uncertainty in the minds of the managers of the defendant company whether they would use that vehicle again or not. It as was not in bad condition throughout, but there was one particular piece of repair necessary if they were gong to use it again. They decided to leave it parked in the vehicle park for a time and that is what they did.
Before the coach was put in the parking ground the tank was emptied of petrol. It was quite close to the small wall and bank on the of the parking ground. About half way along it on the off side, that is the side which was nearest to the bank, was the place into which the petrol would be put: a sort of recess, with a cap on the top of the pipe into which the petrol is poured: the cap is usually a screw cap. After the petrol had been emptied from the tank, the cap was put on and the coach was towed to the parking ground and put in the position which I have described. There was regular inspection of the parking ground and any vehicle which might be in it. Boys did go on to the parking ground and sometimes they played upon coaches: so the boy Trevor Perry told Mr. Justice Lynskey. They were driven away whenever they were seen. He crossed the waste ground and came close to the bank at the south end of the defendants' parking ground. He saw two other boys, Whittaker and Rawlinson. According to his evidence, they were standing on the bank at the side of the coach. There were three coaches nearby at the time. He went towards them and, just as he was nearing them, they jumped away. Thereafter there was some kind of explosion and he remembered no more, so he said. The infant plaintiff was dreadfully burned as a result. It was a most distressing accident.
The infant plaintiff's father brought an action on his son's and his own behalf in regard to some loss which he had sustained. It was pleaded that the boy was on the defendants' land by their licence. In fact he had not in fact reached their land at the time of the accident, although the other boys may well have been on the land, trespassing in so far as they were touching the coach at any time, though they appear to have been standing on the bank at the edge of the land before they jumped back.
In para 5 of the statement of claim it was pleaded:
"On 29th day of October 1952 the plaintiff by the defendants' licence was upon the said land and in the vicinity of the aforesaid Leyland coach whilst returning from school when, owing to the negligence of the defendants, an explosion took place in consequence of a child throwing a lighted match into or near the petrol tank of the coach and the plaintiff sustained severe personal injury."
That is the way the case was put and, as far as I can see from a reading of the evidence, it was common ground that someone threw a match into the petrol tank from which the cap had been removed at some time.
The plaintiff said that he did not know what had happened. A police officer who saw him in hospital said that when he asked him what had happened the boy said that a lighted match had been thrown into the petrol tank and there was an explosion. One cannot pay much attention to what a boy, suffering as he was, said, but it seems to have been common ground at the hearing that the fire or explosion had been caused by a lighted match being thrown into the petrol tank, and that was what Mr Justice Lynskey found. That involved two separate acts: first, the removal of the cap by someone at some time; and, secondly, the throwing of the lighted match into the tank.
The plaintiff's case was pleaded as an action based on negligence. At the hearing and again on this appeal it was submitted that there is another matter to be considered in that the defendants brought on their land something of a dangerous character, to wit, a coach in the tank of which there had been at one time petrol and in that they allowed something of a dangerous nature to escape on to someone else's land and cause injury to the boy Trevor Perry.
I propose to deal first with the case which was based on negligence. Mr Justice Lynskey found that there was no negligence on the part of the defendants. With that finding I respectfully agree. The defendants did all they could to keep children away from their coaches, no doubt in the interest of the coaches which belonged to them.. They did not want boys on their parking ground, nor did they want men to cross over it. They did their best to stop them. Before they put the Leyland coach in the parking ground they caused the petrol to be removed from the tank, not by siphoning it, but by some other means through the bottom of the tank in order to ensure that all the petrol was out. Apart from that, they inspected the vehicles in the parking ground from time to time. Evidence was given by their employees, one of whom was called on behalf of the plaintiff, that so far as any one could tell the cap (which the boy called the winder) was on the petrol tank the day before this accident happened.
Mr. King-Hamilton, on behalf of the plaintiff (appellant), submitted that there was no evidence on which the judge could find, as he did, that the cap was on the petrol tank the day before the accident. He may be right in saying that there was no direct evidence. One witness from the defendants gave evidence that he inspected the vehicles regularly and that he knew that he had looked at this and seen the petrol cap on it a week before the day of the accident. He and others inspected regularly afterwards and no one noticed that the petrol cap was missing. The judge felt that, if it had been taken off before the day of the accident, someone would have noticed it, for there was a careful inspection. Mr Justice Lynskey was entitled to come to that conclusion. It is a fact that the petrol cap was not found after the accident happened. Whether it had been removed earlier that day or the night before, I cannot say. There was no evidence to show what the position was with regards to it, but someone took it off before the accident. Upon the evidence the learned judge was satisfied that there was no negligence on the part of the defendants. The appeal on that ground must fail.
The second way in which the case was put is that motor coach placed on the defendants' land was something of a kind likely to do mischief if it escaped or something from it escaped, and that the defendants, having it on their land, must keep it and fumes or flames from it upon their land at their peril. The submission is based upon that which is spoken of as the rule in Rylands v. Fletcher (1 Exchequer Cases. page 265). I read the words of Mr Justice Blackburn at page 279, which were expressly approved in the House of Lords:
"We think that the true rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape."
I assume for this purpose that an action for damages for personal injuries will lie in such a case and I further assume for this purpose that a motor coach which had had petrol in the tank is covered by the words "anything likely to do mischief if it escapes".
I suppose that an ordinary person would have thought that the tank or the coach and the tank would be safer if the petrol were removed from the tank than if the petrol was left in the tank, but upon the evidence given by the Inspector of the Dudley Fire Brigade it may be said that an empty tank is more dangerous than a full tank, that is, if there has been petrol in it. Upon the evidence ot the inspector, Mr. King-Hamilton submitted that here was a dangerous coach, for there might well have been an accident through fumes from the tank escaping if the cap was taken off. It appears clear upon the facts and upon the case put forward by the plaintiff that there was interference by someone with the coach and with the cap on the top of the tank.
If the damage is caused by the mischievous, deliberate and conscious act of a stranger the occupier of land can escape liability under the rule in
The principle laid down in Rylands v. Fletcher may be avoided or may cease to be applicable if the harm done was due to the act of a stranger. If the mischievous, deliberate and conscious act of a stranger causes the damage, the occupier can escape liability; he is absolved. That is clear from a number of authorities. The one referred to by the learned judge is Box v. Jubb 4 Exchequer Division, page 76. I do not cite it directly. It is sufficient of I take a passage from the speed of Lord Moulton in Rickards v Lothian reported in 1913 Appeal Cases, page 263,the passage ti which I wish to refer being at page 279.
Lord Moulton, having referred to Fletcher v Rylands, said:
"Following the language of this judgment their Lordships are of opinion that no better example could be given of an agent that the defendant cannot control than that of a third party surreptitiously and by a malicious act causing the overflow. The same principle is affirmed in the case of Box v. Jubb. In that case the defendants had a reservoir on their land which was connected both for supply and discharge with a watercourse or main drain. Through the sudden emptying of another reservoir into the drain at a higher level than their reservoir and by the blocking of the main drain below, the Defendants' reservoir was made to overflow, and damage was done to the lands of the plaintiff. The defendants were guilty of no negligence either in the construction or maintenance of the reservoir, and the acts which led to its overflow were done by persons over whom they had no control. In giving judgment Chief Baron Kelly says:
'The question is, what was the cause of this overflow? Was it anything for which the Defendants are responsible? Did it proceed from their act or default, or from that of a stranger over which they had no control? The case is abundantly clear on this, proving beyond a doubt that the Defendants had no control over the causes of the overflow and no knowledge of the existence of the obstruction. The matters complained of took place through no default or breach of duty of the Defendants, but were caused by a stranger over whom and at a spot where they had no control. It seems to me to be immaterial whether this is called vis major or the unlawful act of a stranger; it is sufficient to say that the Defendants had no means of preventing the occurrence. I think the defendants could not possibly have been expected to anticipate that which happened here and the law does not require them to construct their reservoir and the sluices and gates leading to it to meet any amount of pressure which the wrongful act of a third person may impose'.
Their Lordships agree with the law as laid down in the judgments above cited, and are of opinion that a Defendant is not liable on the principle of Fletcher v. Rylands for damage caused by the wrongful acts of third persons."
In the present case there were two acts which had to happen before the damage could be done. The first was the removal of the cap. By whom that was done there is nothing to show. The second is the throwing into the tank of a lighted match which immediately brought about flames which caused injury to this young boy.
The two boys who were near the plaintiff and who were up against the coach as he approached were about the same age as the plaintiff, about 10 years old. It is submitted by Mr. King-Hamilton that, in view of their age, they cannot have been capable of a deliberate or a conscious act, Mr. Burke, who followed, put this general proposition, that children are incapable of deliberate volition. That submission was sought to be reinforced by the reading of a passage from the speech of Lord Atkinson in Cooke v Midland Great Western Railway of Ireland reported in 1909 Appeal Cases, page 229, at page 237. I do not propose to read the passage. I do not think that it affects anything which has to be decided in this case. The way in which Mr. King-Hamilton seeks to use it is this. The defendants knew, said he, that boys played on their parking ground; they knew that coaches were an attraction to them; a coach ought be regarded as an allurement; and thus the defendants ought to have anticipated any action of any kind on the part of those boys of 10 years of age, and they ought to have guarded against it.
I regard that as placing much too high a duty on the occupiers of property. I am prepared to accept this position. If the person who interferes with something of the defendants is a person whom they might expect to be upon their ground and if the character of the interference is something which they ought to anticipate, then they do owe some duty. The measure of that duty depends upon the circumstances, the nature of the object, and the age of the children. I do not think that it can extend to that which happened in this case. Someone removed the cap. Someone threw the lighted match into the tank. There is no evidence to show that either of those things should have been anticipated. If it is said that because boys pass through a parking ground there is a duty on the occupier of the parking ground who has a vehicle there to see that the cap is not removed from the petrol tank, in other words, to lock by a padlock or otherwise the cap, that is something new, in my view. I do not know the basis on which it can be said that the occupier must anticipate that kind of thing: still less do I think that the occupier ought to anticipate that a boy of ten would throw a lighted match into the tank. There is nothing to show that it has ever been done before and I hope that it will never be done again. A boy of ten years of age knows that it is wrong. He knows that he is asking for trouble if he does it. That I think is shown by the fact that both boys jumped back. The match was thrown into the tank mischievously and deliberately. It cannot be said that it was something which the defendants ought to have anticipated and it was the act of one who was not under their control in any sense. He was a stranger.
Mr Justice Lynskey gave judgment for the defendants, having considered both aspects of the case, and in that I think he was right. Therefore the appeal should be dismissed.
LORD JUSTICE JENKINS: I agree. So far as the plaintiff's claim is founded on negligence it seems to me that he has wholly failed to make out his case. As the learned judge found, the defendants did all that could reasonably be. expected of them to prevent children meddling with the disused motorcoach. The tank was emptied, no doubt as a safety precaution, though it seems to be open to question whether in fact the emptying of the tank may not have made it more dangerous than it would have been if full. Be that as it may, the tank was empty. That at any rate had the advantage of immobilising the vehicle, so that children could not set it in motion, and it prevented their getting petrol from the tank, which they might have done if the tank had been full. The defendants also took proper steps to see that the cap was on the orifice of the petrol tank when they carried out inspections, which they seem to have done at sufficient intervale. Whenever they saw children on the site they shouted at them and drove them away. They seem to have complained both to the school and to the police that children were making a nuisance of themselves on their vehicle park.
The happening which brought about the accident was one which the defendants could not reasonably have been expected to foresee. As my Lord has pointed out, it involved not only the removal by some mischievous person of the cap on the orifice of the tank, but also the dropping by some mischievous person of a lighted match into the tank, for that must be taken, I think, to have been what in fact happened. These two mischievous acts seem to me to be wholly beyond anything which the defendants could reasonably have anticipated.
As to the alternative contentions that the defendants are liable, even if they were not negligent, on the principle of Fletcher v. Rylands. I am prepared to accept the view that this motorcoach in the condition in which it was on the defendants' land was an object of the class to which the rule in Fletcher v. Rylands applies, that is to say, that it was for this purpose a dangerous thing, so that the defendants were under an obligation under the rule to prevent it, or the dangerous element in it escaping on to a neighbour's land and doing damage there. It was a dangerous thing for this purpose in that its tank contained inflammable petrol vapour. But the fact that it was a thing to which the rule in Fletcher v. Rylands applied, and the fact that the vapour escaped and was ignited and did damage, cannot conclude the matter against the defendants, because, as is well settled, an occupant of land cannot be held liable under the rule if the act bringing about the escape was the act of a stranger and not any act or omission of the occupier himself or his servant or agent, or any defect, latent or patent, in the arrangements made for keeping the dangerous thing under control. In this case, it seems to me plain that the escape was caused by the act of a stranger or strangers in the shape of one or both of the two small boys Whittakar and Rawlinson.
Mr. King-Hamilton submitted that a child cannot for this purpose be a stranger because ability should not be imputed to a child of doing a conscious and deliberate cat when he does such a thing as setting fire to petrol vapour in the tank of a vehicle. Speaking for myself, I. see no necessity to confine the exception from the rule in Fletcher v. Rylands of acts of strangers to acts which proceed from the conscious volition or the deliberate act of the stranger. It seems to me that the relevance of the exception is that the stranger is regarded as a person over whose acts the occupier of the land has no control. Then the real cause of the escape is not the occupier's action in having the dangerous thing on his land: nor is it any failure on his part or on the part of his agents in keeping the dangerous thing on the land, nor is it due to any latent or patent defect in his protective measures. The real cause is none of these things. The real cause is the act of the stranger, for whose acts the occupier of the land is in no sense responsible, because he cannot control them.
If I may be allowed to cite a further passage in addition to those my Lord has read, it is interesting in this connection to observe that in the case of Rickards v. Lothian (1913 Appeal Cases page 263) Lord Moulton, at page 278, after referring to the judgment of the Exehequer Chamber in the case of Nicole v. Marsland continued:
"To follow the language of the judgment just recited - a defendant cannot in their Lordships' opinion be properly said to have caused or allowed the water to escape if the malicious act of a third person was the real cause of its escaping without any fault on the part of the defendant. It is remarkable that the very point involved in the present case was expressly dealt with by Baron Bramwell in delivering the judgment of the Court of Exchequer in the same case. He says:
'What has the Defendant done wrong? What right of the plaintiff has she infringed? She has done nothing wrong. She has infringed no right. It is not the defendant who let loose the water and sent it to destroy the bridges. She did indeed store it, and store it in such quantities that if it was let loose it would do as it did, mischief. But suppose a stranger let it loose, would the defendant be liable? If so, then if a mischievous boy board a hole in a cistern in any London house, and the water did mischief to a neighbour, the occupier of the house would be liable. That cannot be. Then why is the Defendant liable if some agent over which she has no control lets the water out? … I admit that it is not a question of negligence. A man may use all care to keep the water in … but would be liable if through any defect, though latent, the water escaped … But here the act is that of an agent he cannot control'."
There Baron Bramwell gives, by way of reductio ad absurdum, the example of a mischievous boy boring a hole in a cistern. He says that if the defendant in Nicole v. Marsland was liable, then the occupier of a house in which there was a cistern, it a mischievous boy bored a hole in it, would he liable, and adds "that cannot be" If we are to accept Mr. King-Hamilton's argument on this point in its full form, then if any mischievous boy chose to come on the defendants' land and chose to set fire to the petrol or the petrol vapour in the tank of a vehicle there, the defendants would be liable. I repeat, with Baron Bramwell, "that cannot be".
It seems to me that this argument must be limited to saying that in the circumstances of a particular case it may be that children doing some mischievous act whereby the dangerous thing escapes are not strangers, but I cannot regard that me aiding a plaintiff in an action such as this, unless it can be shown that in the circumstances of the case the dangerous thing was left by the defendants in such a condition that it was a reasonable and probable consequence of their action, which they ought to have foreseen, that children might meddle with the dangerous thing and cause it to escape. If facts such as those were made out in any particular case, then in my view the defendants could not claim to rely on the act of the mischievous child as constituting the act of a stranger. It would be an act brought about by the defendants' own negligence in dealing with the dangerous thing, and the consequence, which they should have foreseen, of a negligent act. But if that is made out, then one reaches the point where the claim based on Fletcher v. Rylands merges into the claim in negligence: for if such a state of affairs could be made out, then it would no longer be necessary for the plaintiff to rely on Fletcher v. Rylands at all. He could rely simply on the defendants' negligence. But Mr. King-Hamilton is precluded from taking that course here by the circumstance that the learned judge, in my view perfectly rightly, held that there was no negligence on the part of the defendants.
Accordingly, while I feel great sympathy for this unfortunate infant plaintiff, who has sustained very serious injuries through no fault of her own, I have came to the conclusion that no ground, has been shown upon which this court could properly hold the defendants liable to compensate him for his hurts.
I agree that this appeal must be dismissed.
LORD JUSTICE PARKER: I agree and I would only add a word in deference to Mr. King-Hamilton's argument on his submission in regard to the rule in Fletcher v. Rylands. Though the decision in Musgrove v Pandelis (1919(2) King's Bench, page 43) has been the subject of some criticism (see the speech of Lord Porter in Read v Lyons & Company Ltd 1947 Appeal Cases, page 157, at page 176), it is still binding upon this court. Accordingly I feel bound to approach the matter upon the basis that the facts here bring the case within the rule in Fletcher v. Rylands: nor do I think it is open to this court to hold that the rule only applies to damage to adjoining land or to a proprietary interest in land and not to personal injury. It is true that in Read v. .Lyons Lord Macmillan, Lord Porter and Lord Simonds all doubted whether the rule extended to cover personal injuries, but the final decision in the matter was expressly left over and, as the matter stands at present, I think we are bound to hold that the defendants are liable in this case, quite apart from negligence, unless they can bring themselves within one of the well-known exceptions to the rule.
It has for a long time there has been an exception to the rule where the defendants can show that the act which brought about the escape was the act of a stranger, meaning thereby someone over whom they had no control. The acts in question here, firstly, of removing the petrol cap, and, secondly, of inserting a lighted match, are, as it seems to me, prima facie undoubtedly the acts of strangers in that sense. Mr. King-Hamilton, however, contends that nevertheless, since at any rate the last of those acts, the insertion of the lighted match, was almost certainly the act of a young child, the exception does not apply, and for this reason, so he says, that in law the act of a young child is not a novus actus interveniens. Speaking for myself, I do not think the matter can be approached in quite that way. In a Rylands and Fletcher case the plaintiff need only prove the escape. The onus is then on the defendants to bring themselves within one of the exceptions. Once they prove that the escape was caused by the act of a stranger, whether an adult or a child, they escape liability, unless the plaintiff can go on to show that the act which caused the escape was an act of the kind which the occupier could reasonably have anticipated and guarded against. In that connection it seems to me that it is not sufficient for the plaintiff to show that the defendants knew that children played in the vehicle park, played on the roof of a motor car or inside a coach. They must show that the defendants reasonably should have anticipated an act of a kind which would cause the escape.
Sorry as one is for the infant plaintiff in this case, it seems to me that he has utterly failed to show that the defendants should have anticipated any such thing.
I agree that this appeal should be dismissed.
LORD JUSTICE SINGLETON: Do you want any costs?
MR. DRAYCOTT: In the court below I did not ask for costs but my instructions are today to ask for the costs of this appeal.
LORD JUSTICE SINGLETON: That must be right, if they are asked for.
MR. KING-HAMILTON: Yes; I cannot oppose it.
LORD JUSTICE SINGLETON: Then the appeal will be dismissed with costs. I suppose that order should be against the next friend, should it not?
MR. DRAYCOTT: Yes, my Lord.
MR. KING-HAMILTON: Would your Lordships grant leave to appeal to the House of Lords in this case?
LORD JUSTICE SINGLETON: No; we do not grant leave.
