England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE QBCOF 98/0718/4

Royal Courts of Justice

Friday, 26th February 1999

Before:

THE QUEEN

-v-

BRISTOL CITY COUNCIL Respondent

Ex parte SANDRA EVERETT

Appellant

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(Handed down transcript of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Tel: 0171 421 4040 Fax: 404 1424

Official Shorthand Writers to the Court)

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MR. N. PLEMING Q.C. and MR. M. WESTGATE (instructed by Messrs Bobbetts Mackan, Bristol) appeared on behalf of the Appellant/Applicant.

MR. T. STRAKER Q.C. and MR. R. BHOSE (instructed by Mr. D. Collins, Solicitor to Bristol City Council) appeared on behalf of the Respondent/Respondent.

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APPROVED JUDGMENT

Crown Copyright

Lord Justice Mummery:

This case is concerned with the scope of powers relating to the abatement of statutory nuisances. The relevant powers are conferred on local authorities by Part III of the Environmental Protection Act 1990 (the 1990 Act).

Section 79 of the 1990 Act provides-

"(1).....the following matters constitute "statutory nuisances" for the purposes of this Part, that is to say -

(a) any premises in such a state as to be prejudicial to health or a nuisance;"

The remaining sub-paragraphs (b)-(h) expressly mention particular matters which may be "prejudicial to health or a nuisance": smoke, fumes or gases emitted from premises; dust, steam, smell and other effluvia arising on specified premises; any accumulation or deposit; any animal kept in such a place or manner as to be prejudicial to health or a nuisance; and noise emitted from premises or from a vehicle, machinery or equipment in a street.

Section 79(7) defines the expression "prejudicial to health" as meaning

"injurious, or likely to cause injury, to health;"

There is no statutory definition of "injury" or "health" in the 1990 Act

Every local authority is under a duty to cause its area to be inspected from time to time to detect any statutory nuisances which ought to be dealt with. Where a complaint of a statutory nuisance is made to it by a person living within its area the local authority is under a duty to take such steps as are reasonably practicable to investigate the complaint.

Summary enforcement machinery is contained in Section 80 which provides that-

"(1) Where a local authority is satisfied that a statutory nuisance exists, or is likely to occur or recur, in the area of the authority, the local authority shall serve a notice ("an abatement notice") imposing all or any of the following requirements -

(a) requiring the abatement of the nuisance or prohibiting or restricting its occurrence or recurrence;

(b) requiring the execution of such works, and the taking of such other steps as may be necessary for any of those purposes, and the notice shall specify the time or times within which the requirements of the notice are to be complied with."

The remaining subsections of section 80 set out the procedure for the service of the abatement notice on the person responsible for the nuisance or on the owner of premises where the nuisance arises from any defect of a structural character, with rights of appeal by the person served with a notice. An offence is committed by a person on whom an abatement notice is served who, without reasonable excuse, contravenes or fails to comply with any requirement or prohibition imposed by the notice.

The Issue

The principal issue in this case is whether a steep internal staircase in a 19th century two bedroom terraced house at 14, Bannerman Road, Easton, Bristol (the Property) is in such a state as to be "injurious, or likely to cause injury, to health."

If, as Richards J held, it is not, then Bristol City Council (the Council) had no power to serve an abatement notice dated 21 February 1994 on the owner of the property, Solon South West Housing Association, on the complaint of its tenant, Sandra Everett, the appellant. Richards J also held that, as the state of the staircase was not capable of falling within section 79(1)(a) of the 1990 Act, the abatement notice served by the Council was not a valid notice and, even if it was, the council was entitled to withdraw it on 9 December 1996. He accordingly refused to quash the decision to withdraw the notice or to make a declaration that the abatement notice remains effective.

Sandra Everett appeals,with the leave of the judge, against his order dismissing her judicial review application

Background Facts

A full account of the facts is set out in the judgment of Richards J reported in [1998] 3 All ER 603. Only a few points need to be highlighted on this appeal-

(1) On 21 February 1994 the council served an abatement notice on Solon following a report by one of the council's environmental health officers that the Property constituted a statutory nuisance because of the steepness of the staircase. The notice required Solon to take out the existing staircase and to construct a new one in a suitable position in compliance with current Building Regulations.

(2) Sandra Everett viewed the property. She was aware of the steepness of the staircase before she accepted a tenancy of it as from 30 September 1994. At that time she was capable of coping with the staircase. She later found the staircase difficult to use because of a back injury. She complained about the state of the staircase. Solon provided a hand rail to the top section of it to improve safety.

(3) On 9 December 1996 the Council wrote to the solicitors for Sandra Everett stating that the Council had received legal advice to the effect that the notice dated 21 February 1994 was incorrectly served and that an "excessively steep staircase" could not be considered a statutory nuisance. The abatement notice was withdrawn.

(4) Sandra Everett applied for judicial review quashing the decision of the Council to withdraw the abatement notice.

Judgment

The judge formulated the main issue (at 608b) as follows-

"...where premises are in such a state as to create a likelihood of accident causing personal injury, do they thereby constitute a statutory nuisance within section 79(1)(a) of the 1990 Act ?"

After carefully summarising the detailed submissions the judge stated his conclusion succinctly (at 613a) as follows-

"I have reached the conclusion that the situation here under consideration is not capable of giving rise to a statutory nuisance within section 79(1)(a) of the 1990 Act. I accept the general thrust of Mr Bhose's (for the Council) submissions that this statutory regime is not intended to apply in cases where the sole concern is that, by reason of the state of the premises, there is a likelihood of an accident, causing personal injury.

In reaching that conclusion, I am influenced more by the legislative background and apparent legislative purpose of the provisions than by their actual language. The expressions "prejudicial to health" and "injurious, or likely to cause injury to, health" may not bring immediately to mind the case of accidental physical injury, but as a matter of language alone I think that they are capable of embracing it. It is not a distortion of language to refer to physical injury as an injury to "health", or to describe premises as being "likely to cause" physical injury in circumstances where the causal mechanism is indirect, in that there is a likelihood of accident giving rise to such injury.

When one looks, however, at the legislative history summarised above, it seems reasonably clear that the expressions were not intended to be so wide in their scope. Where powers to take action against premises that were "prejudicial to health" or "injurious to health" were conferred by the mid-nineteenth century statutes, the object of concern was plainly the direct effect on people's health of filthy or unwholesome premises and the like: in particular, the risk of disease or illness. There is nothing to suggest that the powers were intended to protect against the danger of accidental physical injury. Looking at the legislation as a whole it seems to me that that kind of problem fell outside the legislative purpose. I do not discern in the subsequent legislative history any material change in the legislative intention, such as to justify the attribution of an enlarged scope to the current powers, based as they are on essentially the same language as used in the original legislation."

The consequence of that conclusion was that the steep staircase did not constitute a statutory nuisance. As the judge said (at 614g)-

"If premises cannot constitute a statutory nuisance by reason of the fact that they are in such a state as to create a likelihood of accident causing personal injury, it follows that a steep staircase cannot give rise to a statutory nuisance even if it does create such a likelihood."

It also followed that the withdrawal of the abatement notice on 9 December 1996 was not unlawful and that the application for judicial review should fail. As the judge held (at 615h)-

"....if the situation was not capable of falling within 79(1)(a) of the 1990 Act ....... the abatement notice served by the Council in 1994 was not a valid notice and it would be pointless of the Council to maintain it."

The judge went on to hold that, even if he was wrong on the main point and the situation was capable in principle of falling within the relevant provisions, the Council had an implied power to withdraw the abatement notice and it had exercised that power lawfully in the circumstances of the case.

Prejudicial to Health Point

Mr Nigel Pleming QC, on behalf of Sandra Everett, submitted that section 79(1)(a) of the 1990 Act applies to cover cases where the sole concern is that the premises are in such a state that there is a likelihood of injury to health by accidental injury.

He prefaced his argument on statutory construction with the general comment that the effect of the judgment was to reverse a settled understanding among environmental health officers that this class of injury was covered; and that, if the judgment was upheld, the position would be that a class of injurious and potentially lethal defects in existing dwellings would not be subject to a generally applicable method of regulatory correction, as contained in Part III. He suggested, as obvious examples of a clear likelihood of physical harm to occupants of premises, defective electrical wiring presenting a risk of electrocution, fire or smoke; defective gas installations with a risk of poisoning, fire or smoke; exposed hot pipes with risk of burning; lack of adequate means of escape in the event of fire; weak, brittle or broken glass in a vulnerable location; slippery and dangerous surfaces; lack of handrails to stairs, landings or balconies, with risk of falling; and unsafe kitchen layouts carrying risks of accidental injury, fire or smoke.

Against the backdrop of this alarming list of legislative omissions or over sights, Mr Pleming contended that section 79(1)(a) should be construed as follows -

(1) Legislative Language

In their ordinary meaning the words "injurious, or likely to cause injury to, health" are apt to cover accidental physical injury caused by the state of premises. They are not restricted to infection, disease or other deterioration of a person's physical or mental condition. As "health" is not defined in the 1990 Act it should have its ordinary everyday meaning, which connotes at least absence from significant physical injury or illness. There is no justification either in ordinary usage or statutory context for restricting "health" to freedom from disease or infection. A person's health is as much injured or harmed by a broken neck caused by falling down steep stairs as by an attack of asthma or bronchitis caused by the insanitary state of the premises. This approach is confirmed by the difficulty in drawing any rational distinction between what may be described as "ongoing health" and a single dramatic personal injury suffered as the result of an accident. Nor is it possible to make any rational or workable distinction based on how the injury occurred eg between, on the one hand, passive exposure to premises in their current state and, on the other hand, an accident occurring in the course of using the premises. The language of the section does not justify drawing any distinction by reference to how the injury occurs or the kind of injury suffered. In brief, there is nothing in section 79(1)(a) or (7) to detract from the broad general natural meaning of "injury to health".

(2) Legislative History

The plain current meaning of the legislative language should prevail, unless it is inconsistent with the intention of Parliament. The judge had accepted that, in its ordinary meaning, the provision is apt to cover accidental personal injury. It was an error on the part of the judge to conclude that legislative history required him to reach a conclusion that the likelihood of accidental by physical injury should be excluded from the scope of the legislation. The proper approach to the 1990 Act is to look at its language and not to attempt to restrict the scope of it by reference to a meaning gathered from the context of earlier repealed statutes. In fact, the history of previous Public Health Acts is not a reliable guide to the interpretation of the 1990 Act. It was pointed put that the 1990 Act is a consolidating Act. The Act made significant amendments to the earlier legislation: for example, by introducing new types of nuisance not found in the Public Health Act 1936, such as fumes and gases and by deleting or amending others.

(3) Case Law

The case law prior to the 1990 Act did not give any settled or restricted meaning to "injury to health" such as the judge found. Indeed, there were cases which proceeded on the assumption that dilapidated premises which are dangerous or premises which create a risk of injury do fall what is within Section 79(1)(a). The following cases were cited: R -v- Parlby (1889) 22 QBD 520 at 525; Turley -v- King [1944] 2 All ER 489; Cunningham -v- Birmingham City Council (1998) 30 HLR 158; London Borough of Southwark -v- Ince (1989) 21 HLR 504; and Pearshouse -v- Birmingham City Council (Unreported decision of Collins J on 4 November 1998).

(4) The Proper Approach

An "updating construction" should be adopted recognising that the position now is not the same as it was in Victorian times when the Public Health Acts, dating from 1848, were enacted. There is no fixed standard of what is likely to cause "injury to health". It is important to consider what is an acceptable level of harm and an acceptable degree of risk at the time when the statute is to be applied. Those levels of harm and degrees of risk are likely to change over time. Legislation such as the 1990 Act is always speaking, addressing different situations at different times. A current approach to protection from harm to health is called for.

Conclusion

The logic of Mr Pleming's arguments in support of the appeal would be more difficult to resist if the function of the court was to construct a fresh, comprehensive and rational system for protecting public welfare. The arguments, though skilfully developed, have less cogency within the less ambitious confines of judicial interpretation of statutory provisions which, when restated by Parliament in the 1990 Act, repeated identical expressions which had been used and defined in earlier Public Health legislation, and which had also been the subject of a judicial interpretation settled for over a century.

Richards J was right in holding that the kind of problem raised by the steep internal staircase, with its attendant dangers of accident or physical injury, does not fall within the category of injury addressed by Part III of the 1990 Act, when properly interpreted in the context of the earlier statutory provisions. As Richards J stated, the problem of accidental physical injury existed as much in the mid-19th century as it does today. But it is not the problem at which these statutory provisions and its predecessors were directed. He said (at 613h)-

"It fell outside the intended scope of those provisions, and it falls just as much outside the intended scope of the present day successors to those provisions. The "always speaking" principle cannot be deployed so as to depart in that way from the legislative purpose."

1. Legislative History of Part III

Mr T Straker QC, on behalf of the Council, took the court on an historical excursion of the Public Health legislation relating to statutory nuisances prior to the restatement of the law in the 1990 Act. It was not only a reminder of the achievements of the Victorian urban reformers; it also set the legislative scene for the interpretation of Part III of the 1990 Act. Section 79 of the 1990 Act cannot sensibly be unstitched from the context of the statutory nuisance provisions restated in it.

The legislation dates from the mid-1840's. Only the high spots of the statutory tour need be noted here -

(1) In 1855 an Act was passed to consolidate and amend the Nuisances Removal and Disease Prevention Acts 1848 and 1849. Bodies were designated to be the local authority for the purposes of dealing with, inter alia, the "Description of Nuisances" referred to in the Act. Section 8 provided that-

"The Word "Nuisances" under this Act shall include -

Any Premises in such a State as to be a Nuisance or injurious to Health:"

The same word also included

"Any Pool,Ditch, Gutter, Watercourse, Privy, Urinal, Cesspool, Drain, or Ashpit so foul as to be a Nuisance or injurious to Health:

Any Animal so kept as to be a Nuisance or injurious to Health:

Any Accumulation or Deposit which is a Nuisance or injurious to Health:"

The Act also contained power for the local authority to appoint sanitary inspectors for the purposes of the Act. Under Part II powers were given relating to the "Removal of Nuisances".

(2) The Public Health Act 1875 consolidated and amended legislation relating to public health in England. Part III was headed "Sanitary Provisions" and included, in Section 91, provisions relating to nuisances which were defined as deemed to include

"1. Any premises in such a state as to be a nuisance or injurious to health:"

There was also included in the definition similar provisions to those already quoted from the 1855 Act and further provisions relating to the overcrowding of houses, the state of factories, workshops and workplaces and injury from fire places furnaces and chimneys.

(3) The law relating to public health was consolidated with amendments in the Public Health Act 1936. Part III deals with "Nuisances and Offensive Trades". Statutory nuisances are defined in Section 92(1) as including

"(a) any premises in such a state as to be prejudicial to health or a nuisance;"

Similar provisions to those contained in the 1875 Act are also designated as statutory nuisances.

Section 343(1) contains the definition of the expression "prejudicial to health" which is the same as in section 91(7) of the 1990 Act.

(4) It is also important to note that the 1936 Act contains other provisions with respect to buildings, works and fittings separate from those concerning statutory nuisances. This was also the case with the Public Health Act 1961. Those provisions, including the power to make Building Regulations, are now contained in the Building Act 1984. In particular, Section 77 is concerned with dangerous buildings and provides

"(1) If it appears to a local authority that a building or structure, or part of a building or structure, is in such a condition, or is used to carry such loads, as to be dangerous, the authority may apply to a magistrates' court, and the court may -

(a) where danger arises from the condition of the building or structure, make an order requiring the owner thereof -

(i) to execute such work as may be necessary to obviate the danger..."

There are similar provisions in section 79 relating to ruinous and dilapidated buildings and neglected sites. It is to be noted that these provisions, unlike the provisions relating to statutory nuisances, are in discretionary, not mandatory, form.

The important point to note from the legislative history is that the expression, which now falls to be construed in section 79 of the 1990 Act, has been repeatedly used by Parliament in the context of what have been characterised as "sanitary statutes". There are distinct statutory provisions relating to dangerous and dilapidated buildings, such as are now to be found in the Building Act 1984, the Housing Act 1985 (sections 189, 190 and 352),the Landlord and Tenant Act 1985 (section 11) and the Defective Premises Act 1972.

2. Case Law

As Richards J noted, this special feature of the legislative regulation of statutory nuisances was judicially recognised both in the early case of Great Western Railway Co -v- Bishop (1872) LR 7 QB 550 and, a century later, in the decision of the Divisional Court in Coventry City Council -v- Cartwright [1975] 1 WLR 845. The reasoning in both cases supports the Council's submission that the provisions relating to statutory nuisances are concerned with a threat to health in the sense of disease rather than with the prevention of accidental physical injury from the dangerous state or condition of premises.

(1) Great Western Railway Co -v- Bishop (supra) was a decision on "nuisances" in section 8 of the Nuisances Removal Act 1855. The definition of "nuisances" has been noted above. The owners of a railway bridge over a highway were summoned under the 1855 Act for allowing a nuisance to exist on their premises. The alleged nuisance was that rainwater, which had collected on the bridge, ran through the planks and dripped onto the highway and onto users of the highway. The magistrates ordered the abatement of the nuisance. The Court of Queen's Bench held that the magistrates were wrong in making that order. Sir Alexander Cockburn CJ said (at 552)

"I think this conviction cannot be upheld, and I regret it, for I think that it would be very convenient and very useful that there should be summary jurisdiction in such a case; but that it would be convenient that there should be a summary jurisdiction is not sufficient. We must not act upon any such motive of public convenience where we are construing an Act of Parliament, unless we see the construction that would carry out such a public right is warranted by the language of the statute. The Act speaks of nuisances or things injurious to health, and I think that the distinction taken by Mr Lopes is a true one, that it was intended for the benefit of public health or health generally, to secure the means of abating things that were either matters of public or private nuisance, of public nuisance as coming within the word "nuisance", and private nuisance as coming within the words "injurious to health"; but whether you regard public or private nuisance, still it was intended that the powers of this Act should apply only when the thing complained of was injurious to health. It was admitted that this Act cannot be considered as comprehending within its provisions all things that would amount to nuisances in point of law. Obstructions of a highway and a variety of other offences of that kind against public convenience, which are in point of law nuisances, never can have been intended to be within the scope of this legislation. It becomes therefore necessary to draw a line somewhere. We can only discover that line by reference to the evident scope and purpose of the enactment. It is plain that the object was to protect the public health and private health of individuals living in towns, or in the neighbourhood of towns".

The Lord Chief Justice said that, although the acts alleged against the Railway Company, amounted to "a very serious annoyance and inconvenience to persons who have to pass under the bridge" which might amount to a nuisance at common law, it was not a nuisance within the statute

"....because it is not a nuisance that can be said to affect public health, except in a very indirect remote manner, not such as could be contemplated by the Act of Parliament. The statute is intended evidently to prevent all those nuisances which arise from slaughter-houses and accumulations of refuse matter, and a variety of other injurious or obnoxious trades which are a nuisance to the public, and cannot be taken to apply to such a case as the present."

In his submissions to the court, which were accepted, Mr Lopes QC described the 1855 Act as

"A sanitary Act...It is clear that the word "premises", as defined, means premises in such an unhealthy and foul state as to be a nuisance or injurious to health."

(2) The same approach was taken by Lord Widgery CJ and other members of the Divisional Court in Coventry City Council -v- Cartwright (supra), a case on Section 92(1)(c) and Section 343 of the Public Health Act 1936. A local resident made a complaint that a vacant site owned by the local authority in a residential area was the subject of fly tipping of household refuse and building materials. The council from time to time removed the household refuse, but not the building materials. The justices were of the opinion that the building materials were "prejudicial to health" in the sense that people who entered the site might injure themselves on the building rubble and also that the visual impact to householders overlooking the site constituted a nuisance. On that basis they made an abatement order which was successfully appealed by the local authority. Lord Widgery CJ (at 849 B) said -

"The real question was whether the accumulation was prejudicial to health."

He rejected the assertion that the possibility of physical injury from cuts and the like was sufficient to justify the assertion that the deposit or accumulation was "prejudicial to health". He said (at 849B-C) -

"The words are obviously very wide, and one should hesitate, in construing the section in proceedings such as the present, to lay down boundaries which may in another case prove to be unsuitable. But I think that the underlying conception of the section is that which it struck at is an accumulation of something which produces a threat to health in the sense of a threat of disease, vermin or the like."

He was encouraged in that view by the reasoning of the court in Great Western Railway Company -v- Bishop (supra). See also Ashworth J at 851C-E.

Although the court certified a point of law general public importance for decision by the House of Lords, leave to appeal was refused. Later cases have not cast any doubt on the reasoning in the cases of Cartwright and Bishop. Indeed, the Divisional Court recently followed the reasoning in those cases and in the judgment of Richards J in this case: Birmingham City Council v Oakley (18 December 1998 - unreported).

The other cases cited by Mr Pleming QC do not establish that "injury to health" in this context covers accidental physical injury. For example, he pointed out that the case of Bishop was distinguished in The Bishop Auckland Local Board v. The Bishop Auckland Iron and Steel Co (1882) LR 10 QB 138. Stephen J held that an accumulation or deposit of cinders and ashes was a nuisance if it emitted offensive smells which interfered with the personal comfort of persons living in the neighbourhood, but did not cause injury to health. Stephen J did not, however, hold that "injury to health" included accidental physical injury.

When restating the law of statutory nuisances in the 1990 Act Parliament used the same expression "injury to health" that it had used in the earlier legislation. That expression had been interpreted and applied by the courts for over a century in the sense demonstrated in the two authorities cited above. In those circumstances it is probable that Parliament intended (a) to produce the same result in similar cases under Part III of the 1990 Act as had been produced under the equivalent provisions of the earlier Public Health Acts and (b) to leave the risk of injury by accident to be dealt with by local authorities under other available statutory powers in measures such as the Building Act 1984 and the Building Regulations.

Conclusion

I have read in draft the judgment of Buxton LJ and agree with it.

I would dismiss this appeal. The issues relating to the power of the Council to withdraw a valid abatement notice, which has been served and not successfully appealed, and the lawfulness of the exercise of that power by the Council do not need to be decided on this appeal. However, the court heard full argument on both points. I intend no disrespect to the careful submissions advanced on behalf of the appellant when I simply say that, if Richards J was wrong on the main point (which he was not), there is no error in his conclusions on the other two issues: the Council clearly had an implied power to withdraw the notice and it exercised that power lawfully.

Lord Justice Buxton

BUXTON LJ: By a combination of sections 79(1) and 79(7) of the Environmental Protection Act 1990 the issue in this case is whether because of the manner of construction or arrangement of its staircase 14 Bannerman Road is "in such a state as to be injurious, or likely to cause injury, to health". Although the judge did not regard the construction as the most obvious available, he was persuaded that this statutory formula could as a matter of language alone extend to a case where the state of the premises was likely to cause physical injury: [1998] 3 All ER at p 613 c. I do not agree. It is very unnatural to describe a physical accident as causing injury to health. First, such incidents as a broken ankle or sprained wrist are in ordinary useage not described as interfering with the victim's' health, as opposed to afflicting or injuring his body. Second, once the concept of injury is introduced into the definition, the specific limitation to injury to health underlines the fact that "injury" here is not used in its normal sense of bodily injury.

There are at least two pointers in the bare wording of the present legislation that support that view. First, section 79(1)(f) of the 1990 Act, which has been linked to the present section 79(1)(a) since at least section 91 of the Public Health Act 1875, and which concerns

any animal kept in such a place or manner as to be prejudicial to health or a nuisance

is difficult to reconcile with the argument that "prejudicial to health" as used generally in section 79(1) can extend to physical injury. If the purpose of section 79(1)(a) indeed extended to physical injury caused by an animal, it would be surprising that it limited that protection to injuries resulting from the "place or manner" in which the animals were kept. And it is especially odd to single out for prohibition cases where the "place" of the keeping threatens physical injury: since if an animal is dangerous it is dangerous wheresoever it may be. A further pointer in this direction is to be found in section 81 of the Public Health Act 1936, which gives local authorities powers to make "byelaws for the prevention of certain nuisances", including, by section 81(b), byelaws preventing the keeping of animals so as to be "prejudicial to health". It strains belief to think that this latter expression, defined generally for the purposes of both the 1936 Act and the 1990 Act, can in this context extend to danger of physical injury.

Second, the contrast between prejudice to health and physical danger is underlined in the emergency provisions under the Building Act 1984, where separate regimes are supplied in respect of section 79 statutory nuisances on the one hand (section 76 of the 1984 Act) and, on the other hand, "dangerous" buildings (section 77 of the 1984 Act). The latter expression, seen as referring to a different case from the section 79 statutory nuisance, is the obvious and natural way of referring to danger of physical injury: which "injury to health" is not.

However, whatever may be thought of the verbal infelicities forced on the 1990 Act by the appellant's case, as the Judge said everything falls into place once one looks at the history of the legislation, as expounded by my Lord in his judgment. It is quite clear, as the Judge indeed concluded, that the provisions of section 79(1) come without significant amendment from nineteenth century statutory provisions directed at premises that create a risk of disease or illness. The provisions with which we are concerned are first found in general public health legislation of a recognisably modern type, in almost identical terms to the 1990 Act formulation, in section 91 of the Public Health Act 1875. Reading through that Act, and referring to its predecessors, it cries out from the page that the target of the legislators was disease and not physical injury. And that was clearly understood or assumed at the time the legislation was passed. One of the predecessor statutes, consolidated in the 1875 Act, was the Nuisances Removal Act 1855, section 8 of which addressed "Premises in such a state as to be a nuisance or injurious to health". In Great Western Railway Co v Bishop (1872) LR 7 QB 550, where the issue was whether water running from a railway bridge on to highway users below constituted such a nuisance, Mr Lopes QC, at p551, pointed to the origins of the legislation and concluded that the Act was a sanitary Act, and so a "nuisance" under it must affect health. Cockburn CJ, at p552, agreed with him. True it is that the actual issue in the case was whether the inconvenience, as opposed to physical injury, suffered by the passers by could be a nuisance; but that point was seen as concluded by the status of the legislation as, in nineteenth century terms, a sanitary provision. That perception was expressed in the 1875 Act by the nuisance provisions in section 91 being included in Part III, "Sanitary Matters"; and by the implementation of that Act being in the hands of the sanitary authorities that had been created by the Public Health Act 1872. Changing the language, but not the concept, into twentieth century form, the successor provisions of 1990 are about disease or ill-health, and not about physical danger.

It reinforces that conclusion, already drawn from analysis of the legislation itself, that, to mention only one part of the wide range of secondary material interestingly put before us, the Report of the Consolidation Committee presented to Parliament in support of the Bill that became the largely consolidating Public Health Act 1936, the relevant parts of which were restated in the 1990 Act, explained that that Bill was confined to "provisions of a strictly public health character relating to the prevention and treatment of disease": Cmd. 5059 of 1936, page 9.

I would mention two other points. First, it was contended that to exclude physical danger from these provisions would leave the citizen unprotected. I am far from sure that that is so. But, to the extent that that is the case, it is, I fear, a matter for Parliament and not for this court. The limitation of the reach of this statute to disease and ill-health is too long-standing and deep-rooted to be susceptible now to any different interpretation; particularly since, as the Judge pointed out, [1998] 3 All ER at p 613 g, the concept of physical injury was well-known in the nineteenth century, but was not addressed by these particular provisions. Second, there may be cases where the boundary between injury to health and "mere" physical injury is difficult to define with total precision, though no actual cases were put before us in argument. That problem, if it is a problem, cannot affect the general proposition that physical injury, a concept the boundaries of which are usually easy to perceive, does not, standing on its own, engage section 79 of the 1990 Act.

For those reasons, which merely add some minor elements to the grounds set out in my Lord's judgment, I also would dismiss this appeal.

Lord Justice Hirst - I agree with both judgments and have nothing to add.

Order: Appeal dismissed; order nisi against the legal aid fund with nil contribution; application for leave to appeal to House of Lords refused.