England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MILTON KEYNES COUNTY COURT
(His Honour Judge Meier)

		Royal Courts of Justice Strand London WC2 Tuesday, 5th December 2000

1. LORD JUSTICE HENRY: This is an appeal against the judgment of His Honour Judge Meier who dismissed the claimant's claim for damages for personal injuries sustained by him when walking on the North Sands beach at Hartlepool. He was walking with two relatives on that beach which, as the name implies, was sandy, at 5.45 pm on 31st March on what had been a fine, sunny day. He was walking roughly from north to south with the sea on his left, and, having originally said that he was simply one or two feet in advance of his relatives, in the witness-box that went up to 10 to 12 metres in front. He was 47 years old at the time and had been on that beach just once, some 40 years earlier.
2. The beach was crossed by two main surface water drains from the town, which I will refer to as "outfalls" in each case. The foreshore was occupied by the two local water authorities (the defendants in this action) who had agreed, if events so arose, to share liability at 50/50. Each of the outfalls comprising the two main drains was a substantial object, a rectangular tunnel approximately 30 metres long, 3 metres high and 4 metres wide. This was attached to the town's drainage system. It emerged at the foot of the dunes and then went across the beach. They had been installed in 1971. One does not know when they were originally installed how far buried they were within the beach. As they stand today they are partially buried, though it is a fluid situation, as will be seen, but, at any rate, to judge by the photographs that we have seen, assuming them to be a representative sample, under normal circumstances the roof seems to run from roughly 6" proud of the beach until considerably more where the beach slopes away towards the sea, probably some 3 or 4 feet. So these outfalls lie across the sand like a partially buried crocodile and will always be visible at the point where they join the sea, but they may be covered with sand towards the dune end, and sometimes, as clearly happened in this case, in the middle.
3. The way the accident happened was this, according to the claimant, Mr. Kincaid. He said that on the day he fell none of the outfall was visible. That cannot have been true in relation to the sea end of it and, indeed, Mr. Miller, a friend and relative of his who was with him, confirmed in general terms that you could not see the outfall except for the bottom (that is the sea end), and then added:

"If you are looking for it you can see it. No problem."

4. What seems to have happened is this. On his account (the judge seems to have accepted it) he walked across the roof of the outfall, which was at beach level but covered with sand so he was not aware that he was doing that, and he simply stepped off the far end of it and fell into what he described as a crevasse. He said that he had been walking and talking, not paying particular attention. There was no structure in front of him. He fell into what he described as a crevasse, tapering wedge-shaped towards the sea and he stepped down into it. It was just a big drop and he broke his ankle very badly. It is for the injuries to the ankle that he sues.
5. Of the many photographs that were prepared for the purpose of this case, one in relation to the south outfall represents conditions something like that described by Mr. Kincaid, namely the beach carrying on at roof of outfall level on one side and a drop on the other. There, according to counsel for the respondent today, there was no evidence that the northern outfall was ever seen in a condition like that by any witness in the case. The judge qualified that in his judgment by saying that it was very rare for that condition to obtain on the north outfall. This is a shifting picture. Sand can build up against one wall or another by a process known as littoral drift. It is possible for at least the land end of the outfall to be totally covered by such sand but it is always visible where it goes into the sea. The process whereby sand builds up on one side reflects conditions where the sand on the other side may be moved away from the structure by the same litterol drift, a combination of waves, currents and even the wind, when dealing with the sand by the dune, which can create a situation where the beach level on one side is up to or above the top of the outfall, making it possible for the beach level surface on the other side to be a drop down.
6. The high watermark of the claimant's case in relation to this was obtained in a report by an expert witness who did not give evidence but who prepared the report for the defendant. That was Dr. Ian Valentine, a senior lecturer in hydraulic engineering at the Department of Civil Engineering at the University of Newcastle. His report was before the parties and the court. He was not called to give evidence because the expert evidence had been agreed, but, in the presentation of his case for the claimant, counsel focused on the last paragraph of the report where Dr. Valentine focused on a situation which no witness had observed at the north outfall, and gave it as his view that:

"In my opinion, it is quite possible that the beach surface level difference could be up to 3 metres from one side of the north outfall to the other over about half its visible length. This could apply to either direction. It is impossible without monitoring (visual observation) to determine this level difference at any given time or to say how long it would persist. Variations in level of the beach and particularly adjacent to the fixed structure are normal."

7. His report says in another place that that is often due to very recent wave and current conditions.
8. What caused some difficulties in the way the case was put to the court was the claimant's description of falling into a crevasse with a bank on one side. This was difficult to envisage when dealing with a shifting substance such as sand. The judge focused on this in arriving at his decision. He said this in his judgment:

"The approach has been dealt with in this way: that the defendants have in fact provided a report by Dr Valentine, as I have indicated, which suggests, according to the claimant, relying on that report, that the defendant ought to have known that the introduction of the outfall in 1971 would interfere with the literal drift and cause a build up of sand on one side or the other of the structure. It is a feature, it would appear, that happens from time to time at the southern outfall, but, on the evidence before me, is a rare occurrence on the northern outfall. What Dr Valentine indicated in his statement was ..."

9. He then quotes the section that I have already read out. He says of it:

"This is a report which should be relevant, quite clearly, if one is dealing with a situation, as described initially by the claimant, whereby the level of the sand was, as it were, over the outfall, and then one is faced with the situation where he falls onto sand which is at a much lower level. But I was concerned by the description of the hole or trough into which he fell, the crevasse. It is relevant, in my judgment, to this finding of fact: that it is more likely than not that this was a situation which occurred because of weather conditions."

10. I break off there to interpose that there had been no evidence as to how sand crevasses might be formed. Going back to the judgment:

"It had been stormy on the Wednesday beforehand. It had been relatively stormy the day before, but it was a beautiful day on this occasion. There had been a high tide an hour or so at least prior to Mr Kincaid visiting this particular site. The crevasse or trough such as it is, is not, in my judgment, relevant to the point that was raised by the claimant and addressed by Dr Valentine. This is not a case, in my judgment, which is relevant to the issue which Dr Valentine comments upon: the difference between the two levels of sand at either side."

11. He goes on:

"The finding of fact is relevant in my judgment in this way: if it had been and I was able to find that the issue here was one of literal drift which caused the difference in levels at this particular site on this particular occasion, I would have to consider quite carefully, on the evidence available, as to whether or not on balance what happened was foreseeable, and, therefore, was it reasonably foreseeable that the local authority could expect the possibility of somebody to be injured, not only in the way that Mr Kincaid was injured, but in any other circumstance. For example, if it was that somebody was running, or children playing, that they would be likely to be damaged or to have an accident in these sort of circumstances. But this, in my judgment, is not what happened.

The evidence that has been presented to me, whilst the suggestion is that it is possible that this sand can shift in this way, I am not satisfied that that is what has happened. This, in my judgment, was an unpredictable event. Something certainly did happen, and I am satisfied as a finding of fact that the level was certainly much lower on the south side than on the north side. I accept, on the evidence of Mr Kincaid and Mr Miller, that the sand had covered the top of the outfall. I also accept on what Mr Miller has got to say that this outfall was readily visible. But what happened when Mr Kincaid fell off, irrespective of the fact that it must have been apparent that there was a drop, cannot be laid at the foot of the defendants. The question of foreseeability is one thing. The question of what is reasonably foreseeable is another. Whilst on the one hand it must be apparent that the sea does in fact cause difficulties in an area where there is a swirl of literal drift, I do not think any blame at all can attach to a local authority, the defendants in this case, where there is an incident, and I used the word 'freak' in this case, and I think this is what this was - a freak incident, one to which no blame can attach, because I cannot see in any shape or form that it could be reasonably foreseeable that this type of incident would occur."

12. That was the reason given for the decision. The freak incident was the creation of the crevasse, as I understand it. That was attacked by counsel for the appellant, Mr. Brilliant, before us. The judge had found that the mechanism for producing the crevasse was not foreseeable; indeed, would have been to the parties dependent on the evidence unknown. But, submitted counsel for the appellant, what the claimant was concentrating on was the drop. It was the drop that constituted the danger, and the drop would be there whether it was a drop into the crevasse or the sheer drop on the far side of the roof of the outfall, and, submitted the appellants, the test of foreseeability depended on the foreseeability of the drop alone and not on any freak formation of a crevasse. They did not have to show the foreseeability of the crevasse forming so long as they could show the foreseeability of the drop being there.
13. I found force in that ground of appeal, and if there had not been a respondent's notice, it seems to me that we would have been bound to allow the appeal on that point. In the respondent's notice the occupiers relied on these points. They contended that:

"If, as is contended by the appellant, the accident was the result of the reasonably foreseeable littoral drift the learned judge's decision should be affirmed on the following additional grounds:

1. In all the circumstances, the erection of warning signs was not reasonably necessary to make the beach safe.

2. The erection of warning signs would probably not have prevented the accident.

3. The accident was caused wholly, or partly, by the negligence of the claimant."

14. That is how the case is put, and both sides before us accept that we should proceed to determine the case on the evidence before us.
15. I turn first to look at the first question raised by the respondent's notice as to what exactly were the particulars of negligence and, linked to that, whether this was an accident that could have been avoided by anything that could reasonably be expected to be done by the occupiers.
16. Turning to the particulars of negligence alleged, I leave the question of warnings until last. The first one relied on was failure to fence off or otherwise guard the edge of the drop. The basic facts are these. The outfalls had been installed in 1971. There had been no complaints or incidents concerning them until the 1995 accident. The evidence showed that the sand drift and movement depended on wave currents and some wind action at the dune faces. They were dependent on recent weather conditions, so that where sand might drift was very much a matter of the moment rather than it always drifting in the same place. It could drift on either side of each of the outfalls, between which there was what could be described as swirling competition for drift. Having said that, it was a rare event for the sand to have covered the roof of the outfall in the way that it did at the north outfall on this occasion, but there was no one place where that might happen. It could happen on either outfall in either direction. However, the presence of the outfall would always be visible because of the sea end of it, and the outfall itself would almost always be visible for its whole length, as the photographs before us show. In those circumstances, fencing would not only be impracticable but basically disproportionate because it would be fencing a drop where the whole structure would be visible for the great proportion of time. Again, because of the different places in which the drop might occur, it would be impracticable to have a daily inspection or anything of that kind. The only other thing to be suggested was warnings. The difficulty with warnings is that there are many ways down to the beach and therefore no central channel in which a warning could be put. The message of such a warning would be difficult to get across, particularly when drifts could appear anywhere. In all the circumstances, it is very difficult to see how a warning would have helped in these circumstances. We know that the occupiers here considered matters after the accident when they reviewed their procedures. They decided that there was nothing sensible to be done, and with that decision I am sympathetic. Here, there is a big structure which would always be visible, at least over the sea, which will usually be unmissable, and, in any event, when one comes to the final stage, the drop will always be unmistakable, if there is a drop, to anyone who is keeping a lookout when crossing the roof of this outfall. It will be clear that the drop is there rather than sand. The structure stands as its own warning. The drop will be visible in any case where the presence of the structure has, for whatever reason, escaped attention. In my judgment, the occupiers here have fulfilled their common duty of care to the applicant under the Occupiers Liability Act and, while sympathizing with the claimant, this was a pure accident and not the fault of the water companies. Though it will be of no consolation, even had we been constrained to find otherwise, we would have concluded in any event that Mr. Kincaid cannot have been keeping a proper lookout because he could not have missed the structure and/or the drop had he been looking out, whether the test of contributory negligence is causative potency or blameworthiness or a combination of both. A very high percentage of contributory negligence would have been attributable to the claimant in any event if we were wrong as to liability.
17. LORD JUSTICE KAY: I agree.
Order: Appeal dismissed; costs to be taxed but that taxation to be postponed indefinitely; legal aid assessment. (Order not part of the judgment of the court)