England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE QBENF97/0800/1

(MR RECORDER GEOFFREY BRICE QC sitting as a Deputy High Court Judge )

Royal Courts of Justice

Strand

London WC2

Friday 19 June 1998

B e f o r e:

THE MASTER OF THE ROLLS

(LORD WOOLF)

LORD JUSTICE ROCH

LORD JUSTICE JUDGE

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R E G I N A

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LONDON BOROUGH OF SUTTON Respondent

JOLLEY Appellant

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(Transcript of the handed down judgment of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 421 4040

Official Shorthand Writers to the Court)

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MR M DE NAVARRO QC and MR H PALMER (Instructed by Messrs Watmores, Chancery House, 53-66 Chancery Lane, London, EC2A 1QU for the Respondent) appeared on behalf of the Appellant

MR BRIAN LANGSTAFF QC and MR P SPENCER (Instructed by Messrs Rowley Ashworth, 247 The Broadway, Wimbledon, London SW19 1SE) appeared on behalf of the Respondent

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J U D G M E N T

(As approved by the Court )

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JUDGMENT

LORD WOOLF, MR: This is an appeal from a decision of Mr Recorder Geoffrey Brice QC sitting as a Deputy High Court Judge given on 14 May 1997.

In his careful and detailed judgment the judge awarded the plaintiff £621,710 damages in relation to an accident in which he was involved on 8 April 1990 when he was a schoolboy aged 14. As a result of the accident the plaintiff sustained serious spinal injuries. He is now a paraplegic with major complications and confined to a wheelchair. The judge indicated that his suffering has been immense and not only will his condition not improve but in time it is bound to deteriorate. The damages would have been higher, if they had not been reduced by a finding of 25% contributory negligence.

The defendants, the London Borough of Sutton (the “Council”), do not dispute they were negligent. The principal issue on the appeal is whether the Council should have foreseen the accident which caused the plaintiff’s injuries. As the judge pointed out in his judgment there is no real dispute as to the circumstances in which this accident occurred. It is therefore unnecessary to describe the accident in detail.

The Council own a block of flats called Hayling Court, North Cheam. Nearby there is “amenity land” which also belongs to the Council. A boat was left lying on this land for at least two years before the accident. The plaintiff lived nearby and in the early summer of 1989 when walking in the vicinity with a friend, Karl, he saw a boat which had been abandoned on the amenity land outside the flats. Both were very interested in boats. It seemed to be in good condition. Some months passed and they saw the boat again in the same position. They spoke to a man, who has never been identified, who told them they could have the boat. They decided to repair the boat and take it to Cornwall so as to sail it but no thought was given by them as to how this would be achieved. The boat had no mast, no sail, and no engine. There was however a trailer lying nearby and apparently they wanted to take the boat to Cornwall because that was where pirates were to be found!

They started to repair the boat in February 1990. For this purpose they tried to use the trailer, but were unsuccessful because of the rotten state of the wooden structure of the boat. A jack was used instead. The jack belonged to the plaintiff’s father. By using the car jack and some wood, they were able to raise the front of the boat about two and a half feet. This enabled them to attempt to repair several holes in the hull of the boat.

They continued to work on the boat for a period of about six weeks at weekends and evenings. On 8 April 1990, the day of the accident, they were working under the boat. Karl crawled out from under, but suddenly for reasons which are not clear, the boat started to rock, Karl shouted to the plaintiff to get clear but he was unable to do so before it landed on his back causing his dreadful injuries.

During the two years the boat had been on the land belonging to the Council, it had been seen by their employees from time to time and was regarded as something of a eyesore. The Council’s employees wished to move the boat off the estate and there was no legal reason why they should not do so but due to a bureaucratic muddle this never happened. In December 1988 the defendants did however attach a sticker to the boat which was in a form used for abandoned cars. It read “DANGER DO NOT TOUCH THIS VEHICLE UNLESS YOU ARE THE OWNER ......”.

The Council were not aware that the plaintiff and Karl were working on the boat. It was however plainly abandoned and a caretaker employed by the Council, who was regarded by the judge as a solid and honest witness, was aware prior to the accident that the boat was clearly derelict, that it would attract the attention of children and would be a danger to children if they played on it. The hull of the boat had settled into the ground to some extent but this is not a sufficient reason for rejecting Mr Langstaff’s QC submission on behalf of the plaintiff that if any force was applied to the boat it would move or rock. There had been complaints to the Council about the boat. It was thought to be a danger and an eyesore. Although it was not examined closely by the defendant’s employees, if it had been, it would have been obvious to them it was in a rotten condition.

Among the judge’s conclusions was that the boat was something which could be anticipated would be an attraction to children. That if they played with it, they might suffer some injury, perhaps of a quite minor nature. That it was reasonably foreseeable that children, including those of the age of the plaintiff, would meddle with the boat and be at risk of some physical injury. That the Council ought to have removed and disposed of the boat not merely because the boat was an eyesore but because it was a trap.

It was common ground that the Council owed to the plaintiff, as a visitor, the “common duty of care” as defined in section 2 of the Occupiers Liability Act 1957. That duty is defined in section 2(2) as:

"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 purpose for which he is invited or permitted by the occupier to be there.

Section 2 provides that:

The circumstances relevant for the present purpose include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor so that (for example) in a proper case -

(a) an occupier must be prepared for children to be less careful than adults; ..."

The judge in coming to his conclusion on the question of the Council’s liability made the following points:

"One must keep well in mind that this case is concerned with boys aged 13 and 14. The boat was on a grassed area outside a block of Council flats in an area where there were abandoned cars. I have no doubt that the presence of the boat was something which one ought to anticipate would be an attraction to children of differing ages. Younger children might simply play on it and in its rotting condition might suffer injury, perhaps of a quite minor nature. .... These two boys were not so much playing with the boat as working on it. I do not believe any such distinction assists the defendants. Play can take the form of mimicking adult behaviour. It was reasonably foreseeable that children including those of the age of the plaintiff would meddle with the boat at risk of some physical injury. so far as this type of accident was concerned, it is really only likely to occur if the child was a young teenage boy with the strength and ability to raise the boat and prop it up. ...

There was no reason in fact or in law preventing the defendants from removing and disposing of the boat well before the accident ... As owners and occupiers of Hayling Court estate they were entitled to remove and dispose of abandoned motor cars and an abandoned boat.

I find that the type of accident and injury which occurred in this case was reasonably foreseeable (albeit that it involved significant meddling with a boat by two young teenage boys and that the injuries proved to be very severe) and that the actions of the plaintiff and or Karl did not amount to a novus actus.”

“I should add that the case focused on the defendants liability as occupiers of the grassed area on which the boat was abandoned. However an alternative ground was based on a case of negligence simpliciter. .... Were it necessary to do so I would have held the defendants liable in negligence in that they exercised in my judgment sufficient control over the abandoned boat for a long period that they owed the plaintiff a duty of care."

The Parties’ Contentions

Mr de Navarro QC on behalf of the Council advanced a number of different submissions as to why the appeal should be allowed. His primary submission was that the accident in which the plaintiff sustained his injuries was one which the Council could not reasonably have foreseen. Therefore although they were negligent in not removing the boat prior to the accident the negligence was not causative of the plaintiff’s loss.

Another argument that he advanced (which is no more than a different approach to the previous argument) is that the plaintiff’s activity of jacking up the boat so that they could work under the boat was a new event (a novus actus) which broke the chain of causation. A further way of approaching this issue is to say, because what happened could not be reasonably foreseen, it was outside the area of the invitation or permission which the Council had given to the plaintiff to be on their land.

Mr de Navarro submitted that this court was required to look again at the issues involved and determine them afresh. He submitted that this was not a case where he was challenging the findings by the judge of primary fact, but the inferences to be drawn from those facts in relation to which it was perfectly appropriate for this court to form its own judgment. He relied on Order RSC.59 r.10(3) which gives the court of appeal “power to draw inferences of fact and to give any judgment and make any order which ought to have been given or made ...” and the case of Benmax v Austin Motor Co Ltd [1955] AC 370. In his extremely forceful argument on behalf of the plaintiff, Mr Langstaff drew attention to the facts which he submitted fully justified the decision to which the judge came.

Any examination of the central role of foreseeability in determining the extent of the liability of a defendant for a breach of a duty of care starts with the decision of the House of Lords in Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound) [1961] AC 388. It was in the Wagon Mound case that Viscount Simonds made the important statement of principle that:

"It is, no doubt, proper when considering tortious liability for negligence to analyse its elements and to say that the plaintiff must prove a duty owed to him by the defendant, a breach of that duty by the defendant, and consequent damage. But there can be no liability until the damage has been done. It is not the act but the consequences on which tortious liability is founded.... It is vain to isolate the liability from its context and to say that B is or is not liable and then to ask for what damage he is liable. For his liability is in respect of that damage and no other. If, as admittedly it is, B’s liability (culpability) depends on the reasonable foreseeability of the consequent damage, how is that to be determined except by the foreseeability of the damage which in fact happened - the damage in suit? (P.425)"

It is however Hughes v Lord Advocate [1963] AC 837 which is most relevant to the present appeal. In Hughes the consequences of the breach of duty were unusual in the case of an eight year old boy. A manhole was left open. It had been left open in connection with maintenance work on underground telephone equipment. The manhole was covered with a tent and in the evening it was left unattended, guarded by warning paraffin lamps. An eight year old boy entered and knocked or lowered one of the lamps into the hole. An explosion occurred causing the boy to fall into the hole and be severely burnt. It was held that the workmen were in breach of duty to safeguard the boy. An attempt to dispute liability on the grounds of foreseeability and the Wagon Mound case was successful in the lower courts but the House of Lords allowed the appeal. In his speech Lord Reid made certain comments which could be seen as very supportive of the plaintiff’s case. He stated:

"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 defendant’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." (emphasis added)

(at p.845)

Lord Reid later by way of distinction referred to a situation where there was an intrusion of some new and unforeseeable cause like the falling of a ceiling so that the damage cannot be said to have resulted from the defendant’s breach of duty and in relation to that situation he appears to accept that there would be no liability. However he concluded by saying:

"This accident was caused by a known source of danger, but caused in a way which could not have been foreseen, and, in my judgment, that affords no defence. " (at p.847)

I must confess that I have difficulty in reconciling these remarks with the approach in Wagon Mound . However Lord Reid also agreed with the speech of Lord Guest and so Lord Reid’s speech therefore must not be regarded as being in conflict with that of Lord Guest. Lord Guest focussed on whether the type of accident which occurred was foreseeable. He said, (at P.856):

"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”."

I draw attention to Lord Guest’s reference to the fact that he could not see “that these are two different types of accident”. Lord Pearce agreed with the speech of Lord Guest and focused on the importance of different types of accident when considering the question of liability. This appears from the following passages of his speech:

"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 (see The Wagon Mound ). But to demand too great precision in the test of foreseeability would be unfair ... since the facets of misadventure are innumerable (P.857).

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. (p.858)"

Lord Morris of Borth-y-Gest also concentrated on the type of accident. At p.852 he said:

"The fact that the features or developments of an accident may not reasonably have been foreseen does not mean that the accident itself was not foreseeable. The pursuer was, in my view, injured as a result of the type or kind of accident or occurrence that could reasonably have been foreseen. In agreement with Lord Carmont, I consider that the defenders do not avoid liability because they could not have foretold the exact way in which the pursuer would play with the alluring objects that had been left to attract him or the exact way in which in so doing he might get hurt."

He added at the end of his speech (at p.853):

"My Lords, in my view, there was a duty owed by the defenders to safeguard the pursuer against the type or kind of occurrence which in fact happened and which resulted in his injuries, and the defenders are not absolved from liability because they did not envisage “the precise concatenation of circumstances which led up to the accident”. "

I have cited extensively from their Lordships speeches in Hughes because it is on their approach in that case that the outcome of this appeal depends. Other cases do provide illustrations of what has been the court’s decision on the particular circumstances which have arisen for consideration. However, as those other cases can readily be distinguished on the facts from the present case, their contribution to resolution of this appeal is limited. There is, however, one general point which can be drawn from analogous cases and that is while there are examples of situations where in what at first sight seem to be unusual circumstances, liability has been established, there is no case of which counsel on either side were aware where want of care on the part of a defendant was established but a plaintiff, who was a child, has failed to succeed because the circumstances of the accident were not foreseeable. To that extent if this appeal succeeds the result will be novel.

The judge attached importance to the presence of the boat as being both an allurement and a trap. While this can be of significance in some cases it is only part of the background to this case. There can be no dispute that if this boat was left in this position, children would be attracted by it and would play with it. This was conceded. It was also a trap in the sense that it was not immediately apparent that it was in a rotten condition, that is in a condition where it could prove dangerous because a child could find that a plank or planks gave way. It was a combination of these two features that made it the duty of the Council to have the boat removed. They failed to do this and in that respect they were negligent. However these features, the attractiveness of the boat to children and its dangerous condition, were not established to be part of the causes of the accident. The immediate cause of the accident was that the two boys jacked and propped the boat up so that they could work underneath it and did so in a way that meant that the boat was unstable and could and did fall on the plaintiff.

The question which has to be asked is, was this accident in the words of Lord Pearce “of a different type and kind from anything that a defender could have foreseen”? In answering this question it is necessary to have well in mind that the council should have appreciated that it is difficult to anticipate what children will do when playing with a boat of this sort. Boats, like cars, if they are left “abandoned” in an area where children have access, will certainly attract children to play with them. But what the plaintiff was engaged on was an activity very different from normal play.

Even making full allowance for the unpredictability of children’s behaviour, I am driven to conclude that it was not reasonably foreseeable that an accident could occur as a result of the boys deciding to work under a propped up boat. Nor could any reasonably similar accident have been foreseen. Ironically the state of the boat was so poor that it made it less likely that it would be repairable or that boys would embark on doing the necessary repairs. The photographs of the boat and the evidence of Mr Hall indicate that it was a fairly heavy structure. It would be by no means easy for the boat to be moved or raised. In deciding whether the accident was foreseeable it is important not only to consider the precise accident which occurred but the class of accident.

Although the appeal is a re-hearing it is still important for this court to recognise that the judge having heard the evidence was in a better position to know all the circumstances than this court can be even with the assistance of transcripts. However, like my Lords, I do not find it possible to attribute this accident to the breach of duty of the Council. An accident of the kind which the plaintiff sustained could only occur because together with Karl, he behaved in a way which was not capable of being reasonably anticipated. It is on this basis that I am driven to resolve this appeal. The same approach can be reached by saying that it was the boys’ own acts which created a situation which resulted in the accident but the preferable solution is one based on foreseeability. I would not however, myself decide the case by impliedly limiting the purposes for which the plaintiff was permitted to be present at the place where the accident occurred.

Having come to the conclusion that the plaintiff fails on liability it is not strictly necessary to deal with the question of contributory negligence. However, for the avoidance of doubt, I make it clear that if it had been relevant to do so, I would have dismissed the Council’s appeal as to the apportionment of liability. If the Council were liable, then the plaintiff was appropriately held 25% to blame.

The plaintiff has a cross-appeal on the quantum of damages. The outcome of that appeal was dependant on a case at present before the House of Lords. However, in view of our decision on liability, the cross-appeal will also have to be dismissed.

Our decision is a tragedy for the plaintiff and those who care for him. This we very much regret. Nonetheless the appeal has to be allowed and judgment entered for the Council.

LORD JUSTICE ROCH: I agree that the appeal should be allowed for the reasons given by My Lord the Master of the Rolls, and express my conclusions in my own words in deference to the careful judgment of Mr Recorder Brice QC, the arguments of Mr Langstaff QC on behalf of the plaintiff respondent and because our decision deprives a badly injured plaintiff of a substantial award of compensation.

In Hughes -v- Lord Advocate [1963] AC 837 Lord Pearce at page 857 said:

"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 use the words of Denning LJ in Roe -v- Minister of Health “within the risk created by the negligence”. No unforeseen, extraneous, initial occurrence fired the train. The children’s entry into the tent with the ladder, the descent into the hole, the mishandling of the lamp, were all foreseeable."

In the present case the risk created by the negligence, the negligence being a failure to remove this boat with its rotten planking, was of children who were drawn to the boat climbing upon it and being injured by the rotten planking giving way beneath them. The activities that were obvious and which the appellants could and should have foreseen were of children climbing and playing upon the boat.

The accident which occurred was, in my opinion, quite different. The jacking up of this boat and the going underneath this boat when it was inadequately supported were not activities by children which the appellants could or should have reasonably foreseen. The accident that occurred was not simply an unexpected manifestation of the apprehended physical dangers created by this boat being left with its rotten planking in a place where children might play upon it. Had the boat been sound then no reason for its removal would have existed, nor would any obligation on the appellant’s to remove it have existed. Yet the accident which occurred could still have occurred with the boat in a sound condition, although injury to children playing upon the boat would not in those circumstances have been reasonably foreseeable. The jacking up of the boat was an unforeseen, extraneous initial occurrence.

LORD JUSTICE JUDGE: I agree that this appeal should be allowed and only add some words of my own because of the catastrophic nature of the injuries suffered by the unfortunate plaintiff.

This boat was in an unsafe condition, effectively an abandoned wreck on a piece of land open to the public. Left where it was it would over time have attracted the interest of children. That they would meddle and play with and around the boat was inevitable. If as a result of its unsafe condition a child had been injured while doing so the subsequent claim for damages would have succeeded. Whether it would have succeeded on the basis of an injury resulting from the mere presence of the boat - as opposed to its unsafe condition - is a separate question which does not arise for decision.

Many reported decisions establish what in reality is no more than common knowledge. When children start to play their imaginations can take them far beyond what a sensible adult would contemplate for himself. As Lord Pearce commented in Hughes v Lord Advocate [1963] AC 837 at 857

"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."

There is however a tendency to proceed from the proposition that once meddling by children is foreseeable then, whatever form it may take, none of its manifestations can be regarded as unexpected. This approach is flawed. Without for one moment suggesting that any “precise concatenation of circumstances” need be envisaged, and making every allowance for the unpredictability of children, before the present claim could succeed the defendants ought reasonably to have foreseen that children, including children the age of the plaintiff and his friend, would not simply have “messed about” with or near this cumbersome boat, but have moved it some distance from its original position and made the fairly complicated arrangements to prop it up and work beneath it described in his judgment by the Master of the Rolls.

In my judgment this accident was of a different type and kind from anything which the defendants could reasonably have foreseen when they carelessly permitted the boat to remain where it was. Accordingly although they might have been held liable for other accidents involving children injured playing with or near the boat (if there had been any), it has not been established that they should be held liable for this particular accident.

Order: Appeal allowed with costs here and below. Leave to appeal to House of Lords granted. (Does not form part of approved judgment)