England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OP JUSTICE
(CIVIL DIVISION)
(Mr. Justice Kilner Brown - Liverpool)

		Royal Courts of Justice
		12th November 1975

(Revised)

LORD JUSTICE MEGAW: The infant plaintiff, Julie Harris, was 4½ years old when, on 6^th March 1968, she fell from a second-storey window of a derelict house, 239, Price Street, Birkenhead. She was very seriously injured. She, through her next friend, brought an action against the Mayor, Alderman and Burgesses of the County Borough of Birkenhead as the first defendants; and against Mrs. Jessie Kathleen Gledhill as second defendant. Two third parties and a fourth party were added to the proceedings.

The action was tried before Mr. Justice Kilner Brown at Liverpool. On December 16, 1974, he gave judgment for the plaintiff against the Corporation for £20,000. That was the amount which had been agreed by all parties concerned to be the proper sum of damages on the assumption that any party was held to be liable. The learned judge gave judgment for the second defendant against the plaintiff with costs, but he directed that those costs should be paid by the first defendants. The learned judge's formal judgment also contained provisions as to the third party and fourth party proceedings with which we are not concerned.

The first defendants appeal. They contend that the judge was wrong to hold them liable. There is a cross-appeal by the plaintiff, contending that, if the first defendants' appeal should succeed, then the plaintiff, contrary to the judge's decision, should have judgment for £20,000 against the second defendant. There is also an amended notice of cross-appeal on behalf of the second defendant to which in the circumstances it is unnecessary to refer.

The facts relating to this tragic accident are set out in the learned judge's judgment, [1975] 1 Weekly Law Reports. 379. On one matter of evidence, counsel for the Corporation criticises the judge's finding. I shall refer to that point later. In other respects, no criticism is made of the judge's findings; and the facts are substantially undisputed. I shall, however, summarise what appear to me to be the facts which are relevant for the purpose of this appeal.

Julie Harris lived with her mother at 157, Beckwith Street, Birkenhead. Almost opposite the house was a children's playground, Vittoria Court. On the afternoon of 6th March 1968, the little girl's mother took her to the playground. The plaintiff and another small girl wandered away from the playground. They made their way along Moreton Street, which is a designated children's play street. At the end of Moreton Street they entered the house 239, Price Street, the front door of which is in fact in Moreton Street at the corner with Price Street. The door was open or broken down. The whole house was in a derelict condition, with broken windows. The two little girls made their way up the stairs to a room on the second floor. The plaintiff must have climbed on to the window-sill, which was only about two feet above the floor of the room. The window was open, or the glass broken, or both. The plaintiff fell from the window-sill to the ground below, some 30 feet. These facts are by way of reasonable reconstruction of what must have happened. No one, so far as I know, noticed the children entering the house. But the fall from the window was seen by a passer-by.

It is accepted on all sides that Julie Harris must, in law, be regarded as a trespasser in the house at the time of her accident. On her behalf it was sought to establish that either "the Corporation", or the second defendant Mrs. Gledhill, or both, was or were in law to be treated as the occupier or occupiers of 239. Price Street at the time of the accident; and that, being an occupier, the Corporation or Mrs. Gledhill, or both, was or were in breach of a duty owed to the trespassing infant plaintiff.

How had the house come to be in this ruinous condition, unsecured? What was the basis on which it was sought to make the Corporation, or Mrs. Gledhill, liable? What was the connection of each of them, respectively, with the ruinous 239, Price Street, which might involve the status of occupier at the time of the accident?

Mrs. Gledhill had become the owner of the house in 1956. She had employed a firm of estate agents, Messrs. Bailey & Neep, to manage the property on her behalf. They were responsible to her, presumably for finding tenants, and for collecting the rents, and having necessary repairs carried out.

For some time -- I do not think it matters how long -- before July, 1969, Mrs. Gledhill's tenant in 239, Price Street had been a Mrs. Redmond. She was a good and careful tenant. Until the end of 1967, when Mrs. Redmond left and the house became empty, 239, Price Street had been kept in very good condition, despite what had been happening to property round about.

Much of the property in Price Street and neighbouring streets had fallen into decay. In 1966 the Corporation decided to make a compulsory purchase order under section 43 of the Housing Act 1957. Section 43 is in Part III of the Act, which is concerned with clearance and redevelopment. The order, made on 26^th August 1966, and confirmed by the Minister on 15^th May 1967, was known as the "County Borough of Birkenhead (Cottage Street Clearance Area) Compulsory Purchase Order 1966". It covered buildings in a substantial area, including Cottage Street, at least a part of Price Street, and some neighbouring streets and alleys. The Minister's confirmation of the order involved an amendment which took 239, Price Street outside the clearance area. That house was still covered by the order, and was subject to compulsory purchase, but was not on the basis that it itself was unfit for habitation. As I have said, it had been kept in good condition. Nevertheless, with the rest of the neighbourhood, it was to be compulsorily purchased so that the whole area might be used for building blocks of flats.

On 3^rd July 1967, the Corporation served on Mrs. Gledhill a notice to treat and, at the same time, a notice of entry in respect of 239, Price Street. On the same date a notice of entry in the same terms was served on Mrs. Redmond, the tenant. A covering letter, in substantially similar terms, was sent to each of these ladies by the Corporation. Nothing turns on the terms of the notice to treat. It was a necessary preliminary step towards the assessment of compensation for the compulsory purchase. The terms of the notice of entry are important. I refer to page 16 of Bundle P1. It is headed "The Housing Act 1957." It is further headed "Notice of Intention to Enter." It is addressed to Mrs. Gledhill. A corresponding notice, of the same date, was sent to the tenant: it was addressed to "The Occupier." There are two recitals, the first of which recites the order made on 26^th August 1966, and confirmed by the Minister of Housing. (It would seem that the wrong date was given for that confirmation; but nothing turns on that.) The second recital says: "Notice to treat for the said property was served upon the owners of the said property on the third day of July 1967." It then said:

"Now therefore the council in exercise of the power conferred upon them by Paragraph 9 of Part 2 of the Third Schedule to the Housing Act 1957 hereby give you notice that they will upon the expiration of 14 days from the service of this notice upon you enter on and take possession of the said property described in the Schedule hereto."

As I have said, that notice was dated and served on 3^rd July 1967. the Schedule referred to 239, Price Street.

So there was, in the clearest terms, an averment that the Corporation would, upon the expiration of 14 days from the service of that notice, which is to be taken as having been served on 3^rd July , enter upon and take possession of 239, Price Street, which, of course, involved an assertion by implication of a legal right in the Corporation so to do. The purported statutory authority for this notification, peremptory and unambiguous in its terms, was paragraph 9 of Part 2 of the 3^rd Schedule to the Housing Act 1957. Paragraph 9 had in fact been repealed by section 39 (4) and Schedule 8 to the Compulsory Purchase Act 1965, the commencement date of which, by section 40 thereof, was 1^st January 1966. The purported statutory authority no longer existed. But it has, as I understand it, been agreed between the parties that the misstatement in the notice of entry of the purported statutory authority does not matter. It is not suggested that the misdescription by the Corporation of the statutory power matters, since statutory power did exist. For paragraph 9 had, in effect, been replaced by section 11 of the Compulsory Purchase Act 1965. The relevant part of section 11(1) of the Act is:

"If the acquiring authority have served notice to treat in respect of any of the land and have served on the owner, lessee and occupier of that land not less than fourteen days' notice, the acquiring authority may enter on and take possession of that land, or of such part of that land as is specified in the notice; and then any compensation agreed or awarded for the land of which possession is taken shall carry interest" and so forth

There, then, is the statutory authority which, if the conditions as to notices are fulfilled, gives the acquiring authority the right to enter upon the land and take possession of it, even though compensation has not yet been assessed.

It will be observed that in the present case the Corporation's notice of entry prescribed the minimum period of 14 days and affirmatively and unequivocally asserted that it would enter and take possession upon the expiration of the 14 days.

The covering letter, also dated 3^rd July 1967, to which I have referred was not consistent with the terms of the notice of entry. (I look at page 9 of Bundle P1.) It begins by saying: "You will find enclosed a notice to Treat, Claim form in triplicate, and Notice of Entry." The letter continues, in the second part of the second paragraph:

"The council need to secure vacant possession of the property and one of their officers will call on the occupiers to make arrangements for vacant possession to be given and to offer such other accommodation as there is available to those who qualify for rehousing. While the property remains occupied the notice of entry does not affect present liabilities for rent etc., and rent should be paid by the occupiers and lessees, and collected by landlords in the usual way. The housing manager will arrange for suitable housing accommodation to be offered to those occupiers who were resident in the area at the time of the official count and a member of his department will call upon all occupiers in the course of the next few months to ascertain the needs of the various occupiers. I should perhaps mention that the council have power to enforce the notices when vacant possession cannot be arranged by agreement, or offers of other accommodation are refused. The council are usually able to avoid this final recourse to their compulsory powers and I hope that, with your co-operation, this will be possible in your case."

So the one document was saying that the Corporation was going to exercise its statutory authority to take possession at the end of 14 days, and the other document appears to say that it was not minded to do so until some unspecified, substantially later, date. The documents can, I think, only be reconciled (if they have to be reconciled) by the assumption that the Corporation is asserting that it will, indeed, be deemed to have taken possession on the expiry of the 14 days, but that, having thus notionally entered and taken possession, as it asserts in the notice of entry, it will continue to allow the occupier to reside there for as long as the Corporation sees fit so to allow.

In other circumstances, the apparent discrepancy between the notice of entry and the covering letter might give rise to difficulties. In the circumstances of the present case, I do not think that we need take time in contemplating those potential difficulties or in considering whether the possible reconciliation which I have suggested could be correct. I say that because it is conceded, or, it may be, asserted, on behalf of the Corporation that, from the expiry of 14 days after the service of that notice of July 3, 1967, the Corporation, despite the terms of the covering letter, had the unqualified right to enter on and take possession of 239, Price Street, at any time. The Corporation was not, it is said, obliged to take possession at the end of the 14 days: it was entitled to refrain from actually entering into possession for as long as it chose, stretching into infinity, despite the specific terms of the notice. But it could lawfully enter into possession on July 17, 1967, or on any day thereafter, as of right and without a fresh notice or any amendment of the existing notice. The Corporation did not enter on or take possession of 239, Price Street, until some days after the accident in March, 1968.

I continue with the history, I shall have to return to the question of the effect of that notice.

Mrs. Redmond, the tenant, continued to live in 239, Price Street for a further five or six months after July 1967. She did not, in the end, wish to be rehoused by the Corporation. She found a new place of abode for herself. She left the house 239, Price Street on the 20^th , or perhaps 20^th December 1967. She did not specifically inform the Corporation or any official of it of, at any rate, the precise prospective date of her departure; nor, after she had left, of the fact that she had left. She did tell Mr. Harrison, who was a rent-collector employed by Messrs. Bailey & Neep, Mrs. Gledhill's agents who managed the property. On 13^th December 1967, she gave him a week's notice. He asked her to leave the keys at another house, in Vittoria Street, where Mr. Harrison also collected rents on behalf of Messrs. Bailey & Neep. Mrs. Redmond left the keys in the Vittoria Street house. There is no evidence that Mr. Harrison informed anyone that Mrs. Redmond had left; nor, so far as we have been told, was there any evidence as to what happened to the keys.

I referred earlier to a criticism which has been made on behalf of the Corporation of a finding of fact by Mr. Justice Kilner Brown That arises on the evidence of Mrs. Redmond; and I can conveniently deal with it at this point in the history. Mrs. Redmond's evidence was given by way of a written statement admitted under the Civil Evidence Act 1968. Having told of her dealings with Mr. Harrison, which I have already summarised, she continued, in the second paragraph of her statement:

"Some weeks before I left 239, Price Street, I went to see Mr. Rhodes in the legal department of the The Mayor, Alderman and Burgesses of the County Borough of Birkenhead to tell him that Mrs. Gledhill was the owner of the house and I would be giving notice to leave to the rent collecter, Mr. Harrison. The point of my going to see this gentleman before I left 239, Price Street was to make it quite clear to him that I did not wish to be rehoused by the Corporation as my husband and myself were purchasing our own house."

In his judgment, at page 2/D of the transcript, the learned judge said :

""She" – that is Mrs. Redmond - called upon Mr. Rhodes. She informed him and she also informed Mr. Harrison, who was employed by Mr. Pascoe of Bailey & Neep to collect rents, that she did not wish to be rehoused, she preferred to make her own arrangements. She would leave just before Christmas 1967 and would leave the keys at a house in nearby Vittoria Street ..."

Again, at page 4/G in the transcript of the judgment, the judge said, at p. 384:

"Now although Mrs. Redmond was not a tenant of the Corporation she was seen by the appropriate officer. She notified the appropriate officer that she was making private arrangements and would be leaving before Christmas."

The criticism is that the learned judge was inaccurate because these passages in his judgment suggest that Mrs. Redmond had said that she had told Mr. Rhodes, an official of the Corporation, that she would leave before Christmas 1967, and that she would leave the keys at the house in Vittoria Street; whereas in fact Mrs. Redmond's evidence was that she had said those things to Mr. Harrison, but not to Mr. Rhodes or any other representative of the Corporation. True, she had indicated to Mr. Rhodes that she did not require to be rehoused, and that she was going to move out; but she did not specify to him, so it is said, "before Christmas," or any specific date, nor did she claim to have said anything to him regarding the keys. There might -- I say no more than that -- be some substance in this criticism, if this had been the sole evidence of the Corporation's knowledge before the date of the accident that 239, Price Street had been vacated. But, as will appear, and as is indeed indicated in the judge's judgment itself, the knowledge of the Corporation was shown apart altogether from any inference which might properly be drawn as to what Mrs. Redmond said in her conversation, or conversations, with Mr. Rhodes.

So, to resume the narrative, Mrs. Redmond moved out shortly before Christmas 1967. The house was left empty. The Corporation, who on the evidence were well aware that property left vacant in this area was promptly attacked by vandals, broken into and made desolate and ruinous, did nothing. It is said on their behalf that they did not know -- or perhaps rather that there was no evidence that they did know -- that the house was vacant. It was thus that the plaintiff, on 6^th March 1968, with her small companion, was able to enter 239, Price Street through an open and unsecured door, and, having gone up the stairs and climbed on to the window-sill of a smashed or open second floor window, to fall to the street below.

So far as concerns the Corporation's appeal, two questions arise. First, was the Corporation the occupier of 239, Price Street at the relevant time, so as to give rise to the possible existence of a duty towards persons who might be in the house, including trespassing children? Secondly, if the Corporation was the occupier in that sense, did it, on the facts which appeared on the evidence and the inferences to be drawn therefrom, owe, and fail in the discharge of, a duty owed to the infant plaintiff, by reason of the Corporation's failure to take any steps to make the house secure against entry by trespassing children?

I turn to the first question. Was the Corporation the occupier?

It is well-established law that there may be more than one occupier of property, at the same time, for the purposes of occupier's liability: Wheat v. E. Lacon & Co. Ltd. ([1966] Appeal Cases 552 ). Therefore this is not a case where it is necessarily "either or" as between the Corporation and Mrs. Gledhill. Nevertheless, the Corporation's submission does include the contention that Mrs. Gledhill at all relevant times continued to be the occupier for the purposes of the existence of a duty towards persons entering the house.

The Corporation says that it was not the occupier, so that no question of a breach of occupier's duty can arise. The occupier, if any, was Mrs. Gledhill. In law, it is contended, she remained the owner, and the occupier. In law, she could have entered into physical possession after Mrs. Redmond left, or could have put a new tenant into possession. There was nothing in the notice to treat or the notice of entry to prevent her lawfully so doing. By the conduct of Mrs. Gledhill's agent, Mr. Harrison, in asking the tenant. Mrs. Redmond, to hand over the keys, not to the Corporation, but so as to be collected by him (Mr. Harrison), Mrs. Gledhill has shown, notionally, her intent, or the intent of her agent on her behalf, to retain control of the house, and thus to exclude the Corporation from control. The Corporation, it is said, on the other hand, though it was entitled to take possession at any time, following upon the expiry of the 14 days after the notice of entry, had not done so, and it is contended on behalf of the Corporation that unless and until it did so, either by sending some representative there to enter upon the premises with the intention of taking possession, or by carrying out some symbolic ceremony such as accepting the proffered keys, if they had been proffered, the Corporation was not an occupier. The mere immediate right which it had by virtue of the statutory authority created by the steps that it had taken to serve the notices, to enter and to take possession and to use the house for any purpose -- repair or demolition or anything else -- is not enough, it is said, to make it an occupier for this purpose. It is put as a matter of law, and it must be dealt with as such. The proposition is that the actual taking of possession or some symbolic taking of possession is necessary before one can become an occupier of property for this purpose.

I do not propose to deal with this as a general proposition of law to a greater extent than is necessary for the decision of this particular case on the facts as they appear before us. It may be, though I certainly would not like to be taken as suggesting that it would be, that there might be cases in which one who had the immediate right to enter upon premises would be held not to have become the occupier of those premises for purposes of liability to someone who came upon the premises, unless and until he had actually and physically entered into possession. But, whatever principle might operate in such cases, it could not, in my judgment, extend so far as to apply upon the facts of this case: the facts being that the Corporation has lawfully asserted an immediate right to enter and control, involving the right at any moment of time to dispossess the owner and the person occupying the house when the assertion is made; and when, as a result of that assertion of legal right, the preexisting occupier has moved out and the house is empty.

I say that by reference to the terms of the notice of entry and the statutory authority upon which it is based. By that notice of entry the Corporation was asserting its right to control this property after the expiry of the 14 days. And it was asserting the right to exercise that control at any time thereafter when it saw fit. In my judgment, such an assertion of a right of control, even though it has not been followed by an actual or symbolic, or a "deemed," taking of possession, is sufficient, at any rate when, as here happened before Christmas 1967, the property ceases to be physically occupied by any other person, to make the person who has that immediate right of control the occupier for these purposes. I do not see why it should be suggested that as between the Corporation and Mrs. Gledhill or her tenant there should be any duty owed by either of these ladies to the Corporation, after the notice of entry in the terms which I have cited had been served on them, to give the Corporation notice that they were leaving the house -- leaving it to the Corporation who had, and had continued to assert, the right to enter and control it. But if there was no such duty as between Mrs. Gledhill and the Corporation, how can the Corporation's liability to a third party -- the infant plaintiff -- be affected or abrogated by the fact that Mrs. Gledhill had not told the Corporation that she was no longer physically in possession of the house, by herself or any tenant?

No authority was cited to us by Mr. Morland, on behalf of the Corporation, to support his proposition that one who had complete legal right of control could not be an occupier unless and until he, by himself or his servants or agents, had actually moved into the occupation of the property. It is, therefore, something which has to be put as a matter of general principle. As a matter of general principle, I do not think that it can stand, at least with the width of operation suggested. I would refer to the speech of Lord Denning in Wheat v. E. Lacon & Co. Ltd. ([1966] AC 552 at page 578), where he says:

"In Salmond on Torts, 14th edition (1965), page 372, it is said that an 'occupier' is 'he who has the immediate supervision and control and the power of permitting or prohibiting the entry of other persons.' This definition was adopted by Roxburgh J. in Hartwell v. Grayson, Rollo and Clover Docks Ltd. [1947] K.B. 901 at page 917 and by Diplock L.J. in the present case [1966] 1 Q.B. 335 at page 368. There is no doubt that a person who fulfils that test is an ' occupier.' He is the person who says 'come in.' But I think that test is too narrow by far. There are other people who are 'occupiers,' even though they do not say 'come in.' If a person has any degree of control over the state of the premises it is enough."

Then Lord Denning goes on to consider what he describes as four groups of cases. Without going through them, it appears to me that when one looks at the cases referred to in those four groups it makes it clear that in law the quality of being in physical possession, or having been in actual physical possession, is not in all cases -- and is not in this case -- a necessary ingredient of the legal status of occupier for the purposes with which we are concerned.

Accordingly, upon the facts of this case, applied to the law as I understand it to be, I take the view that the learned judge was entirely right in his conclusion that the Corporation was to be treated as occupier for the purpose of consideration of liability towards this trespassing child.

And so I go on to the second question. The Corporation being the occupier for that purpose, was the judge right in holding that it was liable for a breach of duty towards the infant plaintiff?

It is here, and not in connection with the first question of "occupier or not," that the question of knowledge of the Corporation becomes relevant. Our task in this appeal on this second question has, in my view, been rendered substantially simpler by a concession which was made, and as I think rightly and necessarily made upon the evidence, by Mr. Morland for the Corporation. In calling our attention to the leading authority on the question of duty to infant trespassers, Herrington v. British Railways Board [1972] AC 877, Mr. Morland very properly read to us, amongst other passages, a passage from the speech of Lord Morris of Borth-y-Gest at page 909. It is unnecessary for me to restate the well known facts of Herrington's case, in which a small child had been killed by coming into contact with an electric rail. Lord Morris of Borth-y-Gest said, in relation to the facts of that case, at page 909/E, was this:

"The duty that lay upon the railways board was a limited one. There was no duty to ensure that no trespasser could enter upon the land. And certainly an occupier owes no duty to make his land fit for trespassers to trespass in. Nor need he make surveys of his land in order to decide whether dangers exist of which he is unaware. The general law remains that one who trespasses does so at his peril. But in the present case there were a number of special circumstances -- (a) the place where the fence was faulty was near to a public path and public ground; (b) a child might easily pass through the fence; (c) if a child did pass through and go onto the track he would be in grave danger of death or serious bodily harm; (d) a child might not realise the risk involved in touching the live rail or being in a place where a train might pass at speed. Because of *289 these circumstances (all of them well known and obvious) there was, in my view, a duty which, while not amounting to the duty of care which an occupier owes to a visitor, would be a duty to take such steps as common sense or common humanity would dictate: they would be steps calculated to exclude or to warn or otherwise within reasonable and practicable limits to reduce or avert danger."

Now, Mr. Morland accepted that, mutatis mutandis, the four special circumstances referred to in that passage under the letters (a) to (d) were present as special circumstances on the evidence in the present case, subject to this (from his point of view) vital qualification: that, as he asserted, the Corporation had no knowledge, and had no reason to have knowledge, that this particular house had been vacated and had fallen into the derelict condition. But, subject to that reservation, Mr. Morland assented to the proposition that these special circumstances were shown on the evidence in this case. So I translate those special circumstances into the words applicable in the present case: (a) the place where the door of 239, Price Street was near to a public street; (b) a child might easily pass through the door; (c) if a child did pass through and go into the house, he or she would be in grave danger of death or serious bodily harm; (d) a child might not realise the risk involved in going into that house.

On the facts of this case, all those matters were duly established on the evidence. On those facts being duly established, subject to the question of knowledge by the Corporation of the emptiness and state of the house, there could, in my judgment, be no doubt that the test as laid down in Herrington's case for liability of the occupier would be fulfilled. Would a humane person, knowing of those facts, have regarded it as something that ought to be done, to take reasonable steps to prevent children from trespassing into that area of danger? It is not suggested that, if it had been known that the house was unoccupied and in this vandalised condition, there would have been any practical difficulty in steps being taken to secure this house against infant trespassers between the date when it fell into this ruinous condition by the end of January 1968, and six weeks later on 6th March 1968, when the accident happened.

So I turn to the question whether or not the Corporation had knowledge of the fact that the house was empty and of the fact that the house, being so empty, had been treated by vandals in such a way that it had fallen into a ruinous condition. The question, of course, is whether they had knowledge by such a time that, acting reasonably, they would have been in a position before the accident happened to take steps to secure the house.

In my judgment, the judge was right in the conclusion which, as I understand it, he reached upon the evidence, that the Corporation did have knowledge of those facts. The passage in question in the learned judge's judgment is at page 4 of the transcript, in the last sentence on that page. After he had referred, in a passage which I have already cited, to the evidence of Mrs. Redmond, a passage which is criticised on behalf of the Corporation, the judge concluded the paragraph in this way [1975] 1 W.L.R. 379, 384:

"In my view the Corporation were not only possessed of information that it would be available for demolition, but their officer who recorded the necessity for bricking up must through his subordinates have noticed, if they had kept their eyes open as they toured the area, that there was yet another house ready for treatment."

The reference in that passage is to documentary evidence which was produced at the trial (because no oral evidence was called on behalf of the Corporation) coming from the Corporation's records and no doubt fairly and accurately produced by the Corporation as being relevant in this case, showing the steps taken to secure various houses in this Cottage Street clearance area. The record runs from 6^th February 1967, to 29^th November 1968: that is the part, at any rate, with which we are concerned. It shows that between 29^th December 1967, and 6^th February 1968, four properties in streets adjacent to Price Street had in fact been attended to in various ways, with the intention of securing them, they having ceased to be occupied by reason of things that had happened under this Clearance Scheme. It is to that that the learned judge is referring. It is apparent that there were officials of the Corporation who were taking steps to see that houses were thus secured as and when they became vacant. The judge is saying, as I understand it, that it is a reasonable inference, on balance of probability, that those persons who had that responsibility and who would have had a responsibility to report back to their superiors any other house which they saw in need of the same treatment, must, in the course of their work in this area for that purpose, have observed in the weeks before 6th March 1968, that this house, 239, Price Street, being unoccupied, had fallen into this ruinous condition as a result of the operation of vandals.

Mr. Crowe, for the plaintiff, referred us to evidence that had been given by a lady who lived in a house next door to 239, Price Street, a Mrs. Cameron, which at any rate on one view of it might be treated as having been affirmative evidence that officials of the Corporation had come to her house during this period between the end of January and the beginning of March 1968. But, for myself, I think that, on the examination of that evidence made in reply by Mr. Morland this morning, it would have been unwise for the judge to have placed any substantial reliance upon that evidence -- not because Mrs. Cameron was seeking to say anything untruthful, but because it was apparent that her state of memory (not surprisingly) was defective. Nevertheless, there is the inference to be drawn from the known facts as to what officials of the Corporation were doing in that area; and, as I see it, there was a further inference on which the judge was entitled to act from the evidence which had been given by Mrs. Redmond, to which I have already referred. When that evidence is taken in its literal terms, it does show (and there was no contradiction of this) that Mrs. Redmond had, some weeks before Christmas 1967, gone to see an official of the Corporation and had told him that she did not require Corporation rehousing but that she was going to move out herself. The Corporation were therefore put on notice that this was something that was likely to happen; and I do not think that it is an unfair inference that what must have been said by Mrs. Redmond was that it was going to happen somewhere in the very near future. In those circumstances, again, it would seem that the Corporation must have been put upon the alert with regard to this house.

Taking the whole of the material, I would find it impossible to say that the learned judge was wrong in the conclusion to which he came that the Corporation did know. But even if that were wrong, I should take the view that the circumstances show that the Corporation ought to have known; and, as I understand the law, in a case of this sort that is sufficient to create the existence of liability.

So I would reject the contention on behalf of the Corporation that they did not know of the facts which would give rise to the existence of this danger. As I say, knowing those facts, there is nothing that has been put forward that would have prevented the taking of precautions which, if they had been taken, would in all human probability have prevented this accident; and the circumstances were such that if the facts were known, as they either were known or ought to have been known, common humanity required that such measures should have been taken.

The only remaining point, as I understand it, put forward by Mr. Morland on behalf of the Corporation is that a young child, unsupervised, may always fall out of a window into a street and therefore there is, as it were, no real causative connection here between any failure to board up this particular house and the fact of this child's accident. It is not an argument which I regard, with all respect to Mr. Morland, as being a possible argument. I think that causation here was plainly shown. I would dismiss this appeal.

LORD JUSTICE LAWTON: I agree with the judgment which has just been delivered by Lord Justice Megaw, and have only one short comment to add. In the course of his submissions, Mr. Morland invited the court's attention to a passage in the speech of Lord Diplock in Herrington v. British Railways Board [1972] AC 877 which appears at page 941of the report. The passage was to this effect:

"The duty" -- that is, the duty to child trespassers -- "does not arise until the occupier has actual knowledge either of the presence of the trespasser upon his land or of facts which make it likely that the trespasser will come on to his land; and has also actual knowledge of facts as to the condition of his land or of activities carried out upon it which are likely to cause personal injury to a trespasser who is unaware of the danger."

In his submissions, Mr. Morland construed the words "actual knowledge" as meaning positive knowledge. For my part, I doubt whether Lord Diplock did intend "actual knowledge" to mean what Mr. Morland submitted it did mean; and for this reason. In many branches of the law, plaintiffs and prosecutors have to prove knowledge. It has long been accepted that a man cannot claim he has no knowledge when he has shut his eyes to the obvious. Nor can he claim that he has no knowledge when he has knowledge of what are sometimes called primary facts and has not drawn the inferences which can reasonably be drawn from those primary facts.

Now, if my understanding of Lord Diplock's words "actual knowledge" is right, then the Corporation were in this situation. 239, Price Street, Birkenhead, was in a clearance area. No less than 27 houses in that street and many more houses in adjoining streets were covered by the County Borough of Birkenhead (Cottage Street Clearance Areal Compulsory Purchase Order 1966. Magistrates and judges all over the United Kingdom know that once houses in clearance areas are left unoccupied, vandals, vagrants and other socially difficult persons move in and put those premises into a dangerous condition. It was accepted by Mr. Morland that the The Mayor, Alderman and Burgesses of the County Borough of Birkenhead knew what tends to happen in clearance areas. The only point made was that they had no positive knowledge that 239, Price Street had been vacated. But, as Lord Justice Megaw has pointed out, the evidence established that their officials, charged with safeguarding derelict premises, were moving about this area during the period between the time when it was left unoccupied by Mrs. Redmond and when the infant plaintiff sustained her injuries. Had they looked at all, they would have seen that these premises were empty and derelict and that they required some attention to safeguard children from entering and possibly injuring themselves. It seems to me, therefore, that the knowledge which the Corporation were proved to have was the kind of "actual knowledge" which Lord Diplock was envisaging in Herrington v. British Railways Board.

LORD JUSTICE ORMROD: I agree; and would wish to add very little indeed. The only question on the first part of this case is whether the Corporation are properly regarded in law as a person occupying or in control of the premises in which the accident happened. For the reasons which have been given by my Lords, there is, in my judgment, only one possible answer to that question. They were at all material times the persons with the right to control that property. It would have been almost absurd to suggest that, in the circumstances of this case, the owner, Mrs. Gledhill, could have been expected by the law to go to expense in securing these premises against the damage which was inevitable and was bound to happen to them immediately or very soon after the tenant vacated them. In those circumstances it would be a disastrous injustice to her to hold her liable for this appalling accident; and I am glad to be able to agree with the judgments which have just been given that this appeal should be dismissed.

(Appeal and cross-appeals dismissed with costs, payable by First Defendants. Legal Aid taxation of Plaintiff's costs. Leave to appeal to the House of Lords refused.)