England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PRESTON COUNTY COURT
His Honour Judge Appleton

		Royal Courts of Justice Strand, London, WC2A 2LL Wednesday 7 November 2001

LORD JUSTICE WALLER :

1. This is a judgment of the court.
2. Jane Deborah Burke was a student at the Ansdell Campus of the Blackpool & Fylde College of Technology. It was the custom for students to take keep-fit classes. On 24 February 1992 at about 11-30am Mrs Burke entered a classroom in which she was to take a keep-fit class. She was standing talking to another student when a stack of four chairs overturned and hit her on the back of her right leg. She had a pre-existing knee condition and in the result her knee was dislocated. She has suffered serious injury. She brought her claim against the defendants as occupiers of the premises. At a trial on liability on 19 September 2000 His Honour Judge Appleton gave judgment in favour of Mrs Burke. The judge held that the defendants had failed to issue a warning in relation to the way in which the chairs should have been stacked and the danger if they were stacked improperly, and gave judgment in favour of Mrs Burke. Permission to appeal was originally refused on paper by Henry LJ. At that stage various points were being pursued including an assertion that the judge improperly stopped cross-examination. An application was renewed orally and Henry LJ was persuaded to grant leave, that leave being confined to one point namely whether the judge was "wrong to hold that the duty of care owed by the defendants to the claimant required in the circumstances of this case that the defendants should have instructed students as to the correct way of stacking chairs and should have brought to the attention of such students the consequences of a failure to stack chairs properly". This appeal is thus concerned with that one point.
3. The facts need hardly any further expansion. Mrs Burke was standing in this classroom on 24 February having placed her handbag under a table. Neither she, nor Mrs Hallam who was also present in the room, touched chairs which were stacked round the side of the room. The chairs so stacked it seems had previously been placed out in the open for the class that preceded the class which Mrs Burke was going to take. It appears that the custom was that students cleared the room stacking the chairs to the side. The students were 18 years of age or thereabouts although Mrs Burke herself was aged 29. In any event the students were adults.
4. It was at one time alleged by the defendants that it was impossible for a stack of chairs to fall spontaneously. An allegation was made that Mrs Burke or Mrs Hallam must have knocked the stack of chairs, alternatively that the accident was caused through Mrs Burke twisting on her knee without there being any fall of chairs. The judge found, and there is no appeal from his finding, that when chairs are inappropriately stacked they may be unstable and may fall spontaneously. The judge further found that the accident did occur as explained by Mrs Burke. He also found that the chairs must have been stacked by students and from the ground of appeal quoted above that seems to be accepted.
5. The following findings by the judge are important. First, there had never been in the experience of anyone a spontaneous fall of a stack of chairs. Second, no instructions were ever given to students on how to stack chairs. The way to stack these chairs was obvious. The judge recorded Mr Pratt, who was the Maintenance Security Officer of the defendants, as saying that he had never been taught how to stack the chairs nor had he instructed students on how to stack the chairs. To the judge he said "it would be common sense."
6. The judge then, following that finding, said this:-

"In a sense, he is right – but, there was a dangerous feature of this chair-stacking, and that is that it was desperately simple to get the legs interlocked the wrong way round. One chair thus positioned in a stack was capable, in my judgment, and I find as a fact, of causing instability in the entire stack. Now, although it seemed very simple, almost Lego-like operation to stack the chairs, it is perfectly obvious when one looks at the photographs that anyone who is not mechanically-minded, or is not paying attention, or in a hurry, can very easily stack one chair on top of another, but in such a way that its legs are as it were, in front of, and not behind, the legs below. Once in that 'in front of' position, there is instability".

7. The judge referred to the expert evidence in relation to the degree of instability. Certain tests had been carried out by the experts, a Mr Webster and a Mr Howe. In their joint opinion at paragraph 5 they stated:

"We agree the tests carried out by Mr Webster and Mr Howe give a general indication that where the chairs are stacked incorrectly, generally they tend to display instability over a short period of time not greater than two minutes, but in one of the tests carried out by Mr Webster, the instability extends over a period of six minutes, fifty seconds".

8. They go on to say at paragraph (6):

"We agree the tests carried out were not conclusive as to the length of time that a stack of incorrectly stacked chairs would remain stable".

9. The judge is then somewhat critical about the next two paragraphs of the joint opinion. Paragraph (7) said:

"We agree the task of stacking chairs does not require any special instruction as this is a common task and the correct arrangement of chairs should be self-evident".

10. That view the judge thought was almost defeated by the view expressed in paragraph (8):

"We agree that it would be a failure to exercise a reasonable degree of care if the chairs were wrongly stacked".

11. It is that latter view which the judge thought was important and a "golden nugget".
12. The judge found (1) that the misplacing of one or more of the stacking-chairs in a stack does give rise to an inherent risk of instability and spontaneous collapse; (2) that gave rise to a reasonably foreseeable risk of injury; (3) that gave rise to a duty on the defendants to exercise reasonable care; and (4) that there was a failure to exercise reasonable care in that the defendants should have given what the judge described as "basic instructions", "common-sense instructions", like "By the way, you must stress to everybody how very easy it is to stack these chairs the wrong way round, so that the legs are in front of, and not behind, the ones on to which your chair is being stacked. And if you do that, they'll fall over".
13. The judge described the defendants as negligent for their failure "to appreciate the risk, or the danger, of mis-stacking, and failure to bring that to people's attention".
14. As indicated it is accepted that the mis-stacking here was performed by a student. At one time it was contemplated that the claimant would assert that the defendants were vicariously liable for the actions of a student. It seems that claimant's counsel had his attention drawn to Clerk & Lindsell on Torts paragraph 5-02 and the case referred to in a footnote, Watkins v Birmingham City Council COT 30 July 1975, and did not pursue that aspect further.
15. If the defendants are to be liable it must be by reference to section 2(2) of the Occupiers' Liability Act 1957 or some similar duty in negligence. By virtue of the above section the duty of an occupier is:

"to take such care as in all the circumstances of the case is reasonable to see that a visitor will be reasonably safe in using the premises for the purpose for which the visitor is invited or permitted by the occupier to be there".

16. It was not suggested that the duty of care in negligence would be put in any different way. The wording of the section makes it clear that the duty is not absolute. The difficulty in so many cases is that once an injury or an accident has occurred it is possible to see that there was in fact a danger and it is tempting to conclude that such danger should be foreseeable and should have been reasonably protected against. It seems to us that the judge's finding of the inherent danger in stacking chairs improperly is a view very much with the benefit of hindsight.
17. If one viewed the situation before any accident occurred we suspect a reasonable person would take the following views. First, it is obvious that the chairs to be properly stacked need to have their legs properly positioned and it is obvious how to do that. Second, if they are stacked inappropriately then there is a conceivable risk that the chairs may fall and that too is obvious. Third, the likelihood is that if the chairs were going to fall they would fall within a very short time of being stacked and it is conceivably likely that some minor incident would occur if they fell. Fourth, the obviousness is such and the degree of risk is such that a warning would be unnecessary.
18. We were referred to various passages in Bolton v Stone [1951] AC 850, a case well known to all law students, concerned with a cricket ball being hit out of the ground and injury to a passerby. Statements in cases have to be read in the context of their facts. One cannot therefore adapt them too literally to other situations. However statements for example in the speech of Lord Porter would support the view that it is wrong to impose unreasonable obligations on occupiers. He said for example at p. 858:

"It is not enough that the event should be such as can reasonably be foreseen; the further result that injury is likely to follow must also be such as a reasonable man would contemplate, before he can be convicted of actionable negligence. Nor is the remote possibility of injury occurring enough; there must be sufficient probability to lead a reasonable man to anticipate it. The existence of some risk is an ordinary incident of life, even when all due care has been, as it must be, taken".

19. Lord Oaksey at p. 863 said:

"The standard of care in the law of negligence is the standard of an ordinarily careful man, but in my opinion an ordinarily careful man does not take precautions against every foreseeable risk. He can, of course, foresee the possibility of many risks, but life would be almost impossible if he were to attempt to take precautions against every risk which he can foresee. He takes precautions against risks which are reasonably likely to happen".

20. It must be remembered that in the instant case one is not concerned directly with foreseeability of risk by the stacker of the chairs. He/she should foresee that if he/she stacked the chairs inappropriately there is a foreseeable risk of injury, albeit minor. The question is whether any reasonably careful member of staff at the college would contemplate that if he/she did not give some warning a student would inappropriately stack chairs and those chairs would thereafter cause injury. In our view the reasonably careful member of staff (a) would not think it likely that the chairs would be inappropriately stacked, (b) would not think it likely that the chairs would fall over spontaneously, (c) would not think it likely that if the chairs did fall over that they would cause any injury of any seriousness, and (d) would not think it likely that any warning that he/she gave would make any difference in any event.
21. One must feel some sympathy for the claimant. But it is in our view necessary to stress that the type of injury that she suffered i.e. the dislocation of her knee, would seem to be a highly unlikely result of a stack of four chairs falling. More important however, the sort of warning contemplated by the judge would be no more than to be stating the obvious so far as adult students were concerned. Thus, in our view it would be wrong to hold the defendants liable either in negligence or under the Occupiers' Liability Act and we would allow this appeal.
23. Order: Appeal allowed; Defendants' costs of this appeal and the costs below to be paid by the Respondent, such costs to be assessed by a costs judge; the Respondent's to pay the Defendants an interim payment of £10,000 plus interest as such earned on account within 14 days; Respondent's application for permission to appeal to the House of Lords refused.
24. (Order does not form part of the approved judgment)