England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL AND AN EXTENSION OF TIME

		Royal Courts of Justice Strand London WC2 Monday, 19th November 2001

1. LORD JUSTICE KEENE: This is a renewed application for permission to appeal against a judgment of His Honour Judge Mark Brown, sitting at Liverpool County Court, whereby he gave judgment for the claimant, Angela Maddocks, against both defendants. The present applicant was the second defendant in the action, her mother being the first defendant.
2. The claim arose out of an accident in the stable block of Burtons Farm in Kirkby. Mrs Maddocks fell down a ladder and was injured. The farm, the land and the buildings, including the stable block, were owned by the applicant but her mother ran a livery and stables business in the stables. The mother occupied the stables rent free, there being no contractual relationship between her and the applicant. She was in legal terms a licensee. The judge found that the applicant was a joint occupier of the stables with her mother. That finding is not challenged. It follows from that that she owed the common duty of care to any visitor to the stables by virtue of Section 2 of the Occupiers Liability Act 1957, that is to say, the 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 purposes for which he is invited or permitted by the occupier to be there."

3. Mrs Maddocks paid the first defendant for stabling. She went to the stables on the day in question to prepare some feed for the next day. For that purpose she had to go up into the loft, access to which was obtained by a ladder fixed vertically to a wall. While on the ladder she slipped and fell, seriously injuring her back.
4. Evidence from both sides established that the ladder, as it was at the time of the accident, did not provide a safe means of access to the loft. It was not properly secured to the wall and it ended below the level of the loft floor, that is to say, it did not have any part of it which would enable someone climbing up the ladder to grip above the level of the loft floor itself. In short, it was in a dangerous condition.
5. The judge found that the first defendant had been warned about the risk of accidents occurring because of the state of the ladder. He found her liable. Dealing with the position of the present applicant, the owner and also a joint occupier, he referred to the leading case of Wheat v Lacon [1966] AC 552. He found that the applicant was living on the farm at the time fairly close to the stable block, that she and her mother were part of a close-knit family living together on the farm and that she was made aware of an earlier complaint about the ladder. The judge noted that the duties upon two joint occupiers are not necessarily the same but he was satisfied that the applicant ought to have known of the danger created by the state of the ladder and should have dealt with it. Therefore he found her liable. That is challenged by the applicant.
6. On her behalf Mr Rahman, in a succinct and forceful submission this morning, contends that there is no finding in the judgment that the ladder was obviously dangerous. Consequently, he says the mere finding that the ladder was unsafe, by itself, does not indicate liability. He accepts that lack of knowledge of the state of the ladder would be no defence and there had here been a previous complaint. It is submitted that, after that previous complaint, felt had been fixed to the rungs and no accident occurred after that. Consequently, it is said that there is a properly arguable point here that the applicant should not have been found to be in breach of the common duty of care.
7. It seems to me that the starting point is that the applicant did have some degree of control over the stables. That is implicit in the finding which is not challenged that she was an occupier of them. They were not let or leased to anyone. The first defendant was a mere licensee. As Lord Morris said in Wheat v Lacon on the extent of control exercised by a joint occupier, it may be a pointer towards the nature and extent of the duty of care owed.
8. Clearly, the applicant's duty would have been unlikely to extend to mere transient features of the stables, such as movable items used by her mother in running the livery business. But matters concerning the condition of the structure would be very much part of the responsibility of the owner in joint occupation.
9. I note that in Wheat v Lacon Lord Denning said, when dealing with the duty of the landlord in that case, they ought to see that -

"the structure was reasonably safe including the handrail and that the system of lighting was efficient, but I doubt whether they were bound to see that the lights were properly switched on or the rugs laid safely on the floor."

10. In effect, he was saying those were day to day matters for the tenants.
11. The judge's finding that the applicant ought to have known of the state of the ladder which was not a transient feature of the stables seems to be unassailable. She was the owner in joint occupation living close by and aware that people came into the stables. Moreover, the finding that she was aware of a previous complaint about the ladder underlines that.
12. I take the point that Mr Rahman makes that a mere finding that the ladder was unsafe does not automatically lead to liability on the part of someone in the position of this applicant. It is enough that she should have been aware of the physical state of the ladder and that a reasonable person would have appreciated the danger. The judge expressly found that Mrs McKinley ought to have known about the danger created by the state of the ladder. (See page 26 G-H). That finding seems to deal with the argument which Mr Rahman has advanced this morning.
13. In those circumstances I cannot see that there is any properly arguable point in this appeal that would give it any real prospect of success. It follows from that that, for my part, I would dismiss this renewed application for permission.
14. LORD JUSTICE THORPE: I agree.
Order: Application dismissed