B e f o r e :
LORD JUSTICE NOURSE
LORD JUSTICE RUSSELL
and
LORD JUSTICE HENRY
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STEVEN COTTON |
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Plaintiff/ |
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Appellant |
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-v- |
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DERBYSHIRE DALES DISTRICT COUNCIL |
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Defendant/ |
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Respondent |
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Computer Aided Transcript of the Palantype Notes of
John Larking, Chancery House, Chancery Lane, London WC2A 1QX
Telephone 071-404-7464
(Official Shorthand Writers to the Court)
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MR. A.R. COLLENDER QC and MR. CLIVE SMITH (instructed by Messrs. Dean Thomas & Co., Worksop) appeared on behalf of the Appellant/Plaintiff.
MR. MICHAEL MURPHY Q.C. (instructed by Messrs. Keeble Hawson, Sheffield) appeared on behalf of the Respondent/Defendant.
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HTML VERSION OF JUDGMENT
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Crown Copyright ©
LORD JUSTICE NOURSE: I will ask Lord Justice Henry to give the first judgment.
LORD JUSTICE HENRY: The plaintiff appellant, who was then twenty-six, was one of a group of eight young men and women who, on Easter Monday 1984, drove to a local beauty spot, Matlock, a thermal spa, which was a popular destination for day trippers. After visiting two or three public houses, where the judge found that he would have had something like four pints to drink (though he was clearly in no sense drunk), he and some of his friends went for a hillside walk along a path on land belonging to the first defendants, on a hill called High Tor. That walk was to end in him falling over a cliff and suffering serious injuries.
All eight people were together at the Boat Inn, and all left there at about 3.20 pm and began walking on the road towards Matlock Bath. The River Derwent lay on the far side of the road, and the plaintiff and four of his friends, two men and two women including his wife-to-be, crossed the road and crossed the river by a bridge. They intended to walk along the river bank on the far side. They crossed a stile to get on to that bank, where there was a path. On that side of the river there were overhanging cliffs. The other three continued to walk up the road, and while the river party were walking along the bank there was a certain amount of high spirits. The appellant threw his wife-to-be into the river. He then jumped in after her. The mood was boisterous.
The nature of the terrain caused the path to leave the river bank. It became very steep in places, and it was necessary to go in single file. They had been walking for about half an hour, and gaining height for most of that time, when one of the party, the plaintiff's wife-to-be, realised that she had to turn back because she had arranged to collect her children at five o'clock. For some reason the group did not retrace their steps but decided that if they found a path leading towards the river they would walk down to that and cross the river either by a bridge or, if there were no bridges, by wading across. They were doing this to look for their other three friends. At the time they took this decision they were high, we have heard, and could, as the photographs that we have been shown make clear, have seen the houses below but not the river that lay between them and the houses. They would have been aware that the descent down to it must be very steep. They could not, as the judge found, have seen the cliffs from the main path. They came across what they thought was a secondary path leading off the main path. It was not in fact a path, as the judge found. Indeed, he found that no one would have constructed, or trodden, a path in that position because it led to a cliff and a sheer drop of some 60 feet, 80 yards further on.
The trial judge accepted that they believed it to be a path, having been given that impression by the loose shale and the absence of vegetation. They set off down it in a light-hearted mood, with the plaintiff and his future wife leading. The cliff was not visible to them from the main path. However, the judge accepted the evidence of a surveyor, Mr. Kenyon, called for the appellant, who was an experienced walker, when he said that anyone who started down the so-called secondary path would soon have known that it was quite impossible as a path. He would meet loose scree, and on such a gradient it would be obvious that he would have to be very cautious. The 80 yards from the true path to the cliff edge covered a drop of some 240 feet in height, or roughly 1 in 3. There was then the 60 foot cliff. The evidence shows that some of the party were going down on their backsides. The appellant and Mrs. Cotton were in front, chattering and laughing, and steadying themselves at one point by a fallen tree. The branch that the appellant was holding on to broke, but he said nothing at that juncture to indicate any alarm. One witness had seen him sliding towards the tree in the first place. No one actually saw the sequence of events which led to the appellant falling over the edge of the cliff. Nor does anyone know how far the cliff edge was from the tree that the witnesses observed. This vagueness in the witnesses' recollection may be contributed to by the fact that this trial took place some nine years after the accident (though it should be said that this was not the fault of the appellant's present solicitors).
The judge's findings of fact were these. First, he found that when the photographs of the scene were taken in 1992 at the Matlock Bath end of the path, the south end (that is to say, the opposite end from the end which the appellant and his friends advanced along), there were notices that said, "Welcome to High Tor. For your own enjoyment and safety please keep to the footpath. The cliffs can be very dangerous, and children must be kept under close supervision." There were no such signs (indeed, no signs at all) at the north end, or the Matlock end, where this expedition had started. The appellant's case is that there should have been a like sign at the north end as there was at the south end, referring to the presence of cliffs in the neighbourhood and to the desirability of keeping to paths. Secondly, the judge found that the plaintiff and those with him were, in the terms of the Occupiers' Liability Act, permitted by the defendant to walk at the time in the whole area with which we are concerned. There were no restrictions imposed by the Derbyshire Dales District Council in relation to that.
Coming to the judge's findings on the evidence he heard, he found that if the appellant and his friends had looked around them when embarking on this walk they would have seen the overhanging cliffs. Whether they did this or not no one can now remember, but it would be hard not to notice them. As Mr. Collender has made clear to us, that is not a reference to the actual cliff over which the appellant fell but to other cliffs and a higher level of cliffs down by the river. What must have been apparent to this group was that they were in an area of steep gradients with some cliffs at any rate. The judge found that on the afternoon of the accident the appellant had been in a boisterous mood. He found that the group's decision not to proceed on and not to retrace their steps but instead to head down towards the river was:
"... strange because a moment's reflection, upon looking towards the river and the road, would have shown that they were very high and that the angle of descent, if they went straight down, would be, at best, extremely steep. The more rational choice would have been to retrace their steps."
The judge found there was an apparent path that they turned down but it was not a footpath. He said:
"Nobody would have constructed, or trodden, a path in that position leading to a cliff and a sheer drop of some 60 feet, 80 yards away."
However, he accepted, as I have said, that they took it to be a path, and found that the cliff and the river were not visible from that point. He found that, walking that apparent path, it would soon become apparent that it was not a trodden path, and he found that:
"... exercising reasonable care for their own safety, and just by looking ahead of them, they would have appreciated that a path going straight down to the river would have been increasingly steep and very dangerous. That would have involved a fall of about 300 feet to the river, in a very short distance."
He found that the appellant:
"... should have been exercising great caution since falls, not necessarily producing serious injury, were possible or even likely."
He said it was unfortunate that the appellant did not exercise such care. He found that:
"... soon after starting to walk down what they took to be a path, the plaintiff, followed by the other members of the party, would have appreciated that it was not possible to use this apparent path for their purposes, and that it was not a path."
He then, crucially, found that:
"... if they had at that time [i.e. as they started to walk down the apparent path] attempted to stop, they would have stopped without having suffered any injury at all, as all but the plaintiff did."
Finally, he found that the cliff was not a "trap". That finding again was challenged by the appellant in this case, and that will have to be examined.
Having made those findings of fact, the learned judge correctly directed himself as to the test he had to apply, namely, the common duty of care as set out in section 2(2) of the Occupiers Liability Act 1957, which reads as follows:
"The common duty of care is 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 using the premises for the purposes for which he is invited or permitted by the occupier to be there."
Having made those findings, and in applying those tests, the judge concluded his judgment as follows. He said:
"It is necessary to ask, did the standards of common sense and common humanity, and did the common duty of care, demand that the defendant should have taken steps to prevent the plaintiff, or anyone else, falling over that cliff? I cannot find that the cliff was a trap, in the British Railways Board v Herrington sense, but nevertheless the questions are apt.
On behalf of the plaintiff, it is argued that there should have been notices warning that the cliff was there, some 80 yards away from the true path ..."
Then he sets out the common duty of care.
He then deals with the thought processes which the occupier responsible for ensuring that the common duty of care was complied with should have gone through, and he said this:
"As it seems to me, the thought processes which should have taken place should have been along these lines. The starting point should have been a consideration of the visitor. The responsible officer should have said to himself, 'He may be a day tripper, who will not appreciate that some apparent paths are not paths at all, and ... will not appreciate if he starts on such a path that ahead of him there is a sheer drop of up to 60 feet.'
He should then have said, 'I must take reasonable care to see that such a person will be reasonably safe.' That would have led him to ask, 'Will he be reasonably safe without any notice of the sheer drop?'
Reasonably, the responsible officer could then have said, 'He ...', the visitor, '... will know that he is high up. He could not fail to know that. He will see the road and the houses well below him. He will keep to the paths ...', as all the witnesses who were there said that they thought they were doing, '... and he will not continue down an apparent path when he has discovered it is not a path.'
The responsible officer would then have asked, 'Will the apparent path take him to a position of danger before he realises, and must realise, that he is not on a path?' The officer could then have reasonably said, 'He will soon ...', as Mr. Kenyon [that is the surveyor called in by the plaintiff] told me, '... discover that what he thought was a path is not a path at all. Then he will climb back up, and this discovery will happen well before there is any position of danger caused by the cliff 80 yards away.'"
That is the crucial finding in this case. The judge continued:
"Such reasoning would have been reasonable and would have led the responsible officer to say, 'We have complied with the common duty of care because the visitor will be reasonably safe without any specific notice, let alone any fence.'"
The judge concluded his judgment by saying:
"Only the plaintiff continued to and over the cliff. I do not know why. I do not know why he continued down the apparent path when it must have been clear it was no path. I do not know why he did not cry out when the branch broke. I do not know how near he then was to the cliff edge. I do not know why he carried on over the cliff edge. If he had decided to descend at that point, whether he knew there was a sheer drop or not, it would have been an act of sheer folly, but I do not know the answers to those questions, and, after nine years, I suspect it is far too late to find out.
I have to ask, were the defendants at fault, and it gives me no pleasure to say that I can find none."
Accordingly he felt constrained to dismiss this claim.
That judgment, and the finding on which it is based, has been analysed with great care and skill by Mr. Collender, who appears for the appellant before us, who has subjected it to most careful scrutiny. He makes two points essentially. First, he deals with the question of the warning notice. He says that there should have been a warning at the northern end of the path in like terms to the warning at the other end; that is to say, an admonition to keep to the footpath and the statement that the cliffs can be very dangerous. Two things can be said about that. First, such a warning would not tell you that the apparent path was not a path; and in so far as it went further and told you that there were cliffs in the neighbourhood, that would have been known already, and it would not have told you where those cliffs were. For my part I find it difficult to see how the presence of such a warning notice as is suggested here would have affected events. Secondly, Mr. Collender challenges (as he must, if the appellant were to succeed in this appeal) the judge's crucial finding that the visitor who in error set off down the apparent path will soon discover that what he thought was a path is not a path at all, and then he will climb back up, and this discovery will happen well before there is any position of danger caused by the cliff 80 yards away. The criticism of that passage put forward is that it is a wrong conclusion to draw because in this situation it is said it would be easy for the walker to pass the point of no return and to be in a position where he could not easily get safely back. However, the judge based that finding of fact partly on the evidence of Mr. Kenyon, the surveyor who he heard, and partly on his own view of the scene, having walked the terrain in question. Given that basis on which the judge reached that conclusion, it is clear, he having formed that view of the terrain, that that finding is not readily susceptible to challenge in this court. On the evidence before the judge, I am not persuaded that he was in error in arriving at that finding. It is useful to bear in mind the words of Lord Shaw of Dunfermline in Glasgow Corporation v Taylor [1922] 1 AC 44 at 60, when he said this:
"In grounds open to the public as of right, the duty resting on the proprietors ... of making them reasonably safe does not include an obligation of protection against dangers which are themselves obvious."
It seems to me that any notice here of the sort suggested would simply have been pointing out a danger which, when it arose, would have been obvious. Once it was appreciated that there was no path, the danger of proceeding down a steep gradient where the footing was insecure and unstable and where you could not see what was over the brow, would have been obvious. So the judge held and, in my judgment, he was right to do so.
Like the trial judge, I have great sympathy for Mr. Cotton, but the trial judge was, in my opinion, manifestly right in finding that the respondents to this appeal were not in breach of their duty as occupiers, and for those reasons I would dismiss this appeal.
LORD JUSTICE RUSSELL: For all the reasons appearing in the judgment of my Lord, I too agree that this claim fails. Whilst wishing to associate myself with the expressions of sympathy for this unfortunate plaintiff, I too would dismiss this appeal.
LORD JUSTICE NOURSE: I also agree and wish to add nothing of my own.
Order: appeal dismissed; legal aid taxation granted.
