England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BARNSTAPLE COUNTY COURT
(MR RECORDER GREENWOOD)

		Royal Courts of Justice The Strand London
		Thursday 31 October 2002

Thursday 31 October 2002

LORD JUSTICE JUDGE:

1. This is an appeal with his permission from the decision of Mr Reorder Greenwood sitting at Exeter County Court on 19 March 2002, finding that Devon County Council was liable to Mrs Jennifer Beaton for personal injuries, loss and damage.
2. Mrs Beaton sustained unpleasant injuries on 13 September 1999 when she was on a bicycle ride with her family along the Tarka Trail near Biddeford shortly after they had all re-entered the disused railway tunnel known as Landcross Tunnel. Subject to liability, her damages were agreed at £18,000.
3. Landcross Tunnel is a disused railway tunnel about 175 metres in length, forming part of the Tarka Trail which was opened in 1991. This is a well-used cycle track. Something like 30,000 cyclists, presumably of all ages -- grandparents and grandchildren -- use the tunnel annually. It may also be open to pedestrians, although we were told there was no evidence one way or another on that point.
4. It must be a lovely local amenity -- a route along which cyclists are protected from encounters with cars, lorries or motorcycles. Inside the tunnel itself the track curves, so that as you enter the other end it out of your view. It is artificially lit by a series of lights placed in the roof at 20 metre intervals along its length. The lighting is not particularly bright, certainly when contrasted with the natural light produced by a sunny day. No doubt the eyes have to adjust fairly rapidly to the change. It is obviously brighter at the two entrances to the tunnel than it is in the middle. It is also likely (though not relevant to the decision) that part of the tunnel's attraction for children at any rate is created by the contrast and the excitement of entering a tunnel.
5. Between the date when it opened and the date of the hearing no complaints were received about the tunnel's condition. There had been but one previous accident. That occurred when the lighting had failed altogether and did not involve, as this accident did, the surface of the track.
6. The track is 16 feet wide. Largely the surface is concrete. It is not absolutely level. There is a slight slope running from the centre of the path to its edge. Gullies between eight and twelve inches wide and five to six inches deep run along each side of the concrete track. Each is adjacent to the side of the tunnel wall. In short, one side of each gully is adjacent to the concrete path, and the other is immediately adjacent to the inner wall. The gullies are filled with small stones or stone chippings. There was no finding critical of the presence of the gullies or their design. Their essential purpose was drainage, particularly with water percolating through the tunnel wall. Another purpose was gas main protection. In any event it was recognised that unfilled gullies running 175 metres along each side of the concrete path and five to six inches deep, would represent a potential hazard to cyclists using the track. That is why they were filled. There was no express warning about the presence of the gullies, but they would certainly have been visible to cyclists as they entered into the tunnel. More important, however, their proximity to the tunnel walls is such that no one would reasonably anticipate a cyclist deliberately cycling or choosing to cycle very close to the walls themselves.
7. There is a degree of supervision of the tunnel on behalf of the County Council. There are two rangers with responsibility for it. It is visited weekly, although, on the judge's findings, the rangers were more concerned with lighting and possible obstructions and litter on the path rather than with the gullies themselves. They had no specific responsibilities for the gullies, but if they were concerned with obstructions on the track they would presumably have noticed if stones were lying about on the track when they should have been in the gullies themselves.
8. The accident in which Mrs Beaton was involved was a sad end to a happy family bicycle ride. It is difficult not to feel a large measure of sympathy for her. She and her husband, their daughter and son-in-law and their three grandchildren were out on a bicycle ride together. Two of the grandchildren were old enough to ride their own bicycles. The third was a toddler, sitting in a trailer behind his father's bicycle. The family had passed through the tunnel safely travelling in one direction. It was on the return journey, shortly after they had re-entered the tunnel, that the accident with which we are concerned happened.
9. The family was riding along at a perfectly safe speed when for some reason -- and it does not matter why -- things started to go wrong. The son-in-law came to a halt. The daughter stopped and came off her bicycle. Mrs Beaton herself was a little further behind. Seeing what was happening in front of her, she braked and came to a halt. Naturally enough she then put her right foot to the ground. According to the judge's findings, her "right foot either caught the edge of the concrete or fell directly into an area which was not at the same level as the concrete". The result was a very unpleasant and painful fall and injury. The judge's finding is subject to criticism on behalf of the County Council.
10. The judge found that the stones in the gully at the point where Mrs Beaton put her foot down to the ground were not flush with the concrete surface of the track. There was a depression or undulation in the stones in the gully at the point where she fell, which he held was "two-and-a-half inches or even less" deep. The judge appears to have accepted that by and large the stones along the lengths of both gullies matched the edge of the concrete. Indeed, when Mrs Beaton's husband went back to the scene to take photographs of it, he and his son-in-law, who was with him, had to remove stones from the gully to be able to take photographs of the scene to illustrate the incident as it had happened. He could not believe that repairs had not been carried out; but on the evidence they had not. This evidence of Mr Beaton's findings at the scene was consistent with the evidence of one of the rangers who, when the incident was reported, checked the gullies in detail without knowing precisely where the accident had happened. According to the judge's findings, the ranger discovered that by and large the stones within the gullies matched the edges of the concrete floor. The judge found that the worst that the ranger could find in terms of undulation was two-a-half inches and no more. It is pointed out in argument before us that that worst undulation was not found at the place where Mrs Beaton's accident had happened. In any event, it was not thought to be a problem requiring repair.
11. The judge held the County Council liable. He said that the County Council should reasonably have foreseen an accident of the sort described by Mrs Beaton. He directed himself that the basis of the claimant's case seemed to him to be "whether or not it was reasonably foreseeable so far as the defendants are concerned, that an accident of the sort which she has described would happen and on that basis whether the defendants had a duty under the Occupier's Liability Act to ensure that it did not".
12. His analysis of the obligations of the occupier of land is criticised on the basis that it equates the obligation to take reasonable care of and for visitors with an obligation to ensure against accidents. For the claimant it is suggested that this may have been a slip of the tongue. The judge did not, so it is argued, adopt a strict liability test. In that context I must refer to one or two passages in the judgment immediately after the judge had described the duty in terms which on the face of it suggest an obligation to ensure that this accident did not happen. He described how the lighting placed in the ceiling of the tunnel "was likely to be inadequate specifically to identify at any point as one proceeded the precise delineation of the tunnel floor". Later in his judgment, in relation to drops in the level between the side of the path and the gully, the referred to a drop in level, "however small". He also referred to the risk of someone either cycling or walking in falling and missing one's step. He spoke of "an unwitting lack" of foresight. Indeed, having heard the evidence of the two rangers, he spoke of not being prepared to criticise them in the context of failing to appreciate, unwittingly or not, the danger of an accident.
13. The judge examined, and was particularly concerned about the lighting within the tunnel and its inadequacy. He referred to the difficulty in seeing the precise delineation of the tunnel floor. He concluded that, although the gullies were useful in terms of drainage, they created an inherent danger against which there was no warning. He did not address the question whether the gullies would have been visible to anyone entering the tunnel at the time when they did enter the tunnel. What he described in his own assessment as "the important element" in the finding against the County Council was that the lights were not adequate to enable a cyclist to be able to see precisely where to put down a foot. He is criticised for ignoring the evidence from the rangers on the issue of the lighting.
14. The judge went on to observe that, given the possibility that cyclists would for many reasons from time to time stop and put a foot down to the ground in the area where the edge of the concrete meets the stone gully or drain channel, notwithstanding the absence of previous complaints or injuries, there was what he described in one place as a "clear risk", in another as a "considerable risk" of a fall such as that which occurred to the claimant, Mrs Beaton.
15. From the passages to which I have briefly referred, it seems clear that the judge approached this case as if the duty of Devon County Council was greater than it was, and greater than the "common duty of care" imposed by the Occupier's Liability Act. The submission on the behalf of the County Council seems to me to be well-founded. We now have to approach the facts on the basis that the correct analysis should be undertaken.
16. This was a cycle path. There was nothing wrong with the track itself. It was wide enough to carry cyclists peddling in opposite directions. The gullies were so close to the wall that there was no obvious reason to believe that they would normally be in use at all. They were designed so that they should be filled with stones and effectively (although not, on the judge's findings, at every single point along the length of both gullies) they were properly filled and to the same level as the track itself.
17. When properly analysed, the judge's findings amount to criticism of the County Council in relation to the available lighting and because of an obligation to provide that every yard of each gully should be fully stocked with stones. In my judgment, it is open to question whether on the evidence the judge was entitled to reach the conclusion that Mrs Beaton had indeed put her foot into a hole of two-and-a-half inches or less in the gully. If she did, it is surprising that neither the ranger who went to the scene immediately the incident had been reported, nor Mrs Beaton's husband, when he visited the site, could find any evidence of such a hole at the place where his wife had fallen. That, however, seems to me not to require any further analysis. It is also surprising that the judge made the finding that he did in relation to lighting. These findings were not in any way linked to the place where the claimant fell, and he made no reference whatever to the evidence of the rangers on this issue. I consider that the observations of Mr Beaton and his son-in-law about what they were able to see after the accident are irrelevant to the issue of lighting; but more important, I doubt whether the issue of lighting is an issue of any great importance in itself. Even if lighting had been better, it seems to me, that faced with the unfolding situation involving her children and her grandchild being carried in the trailer, Mrs Beaton was bound to come to a stop and, as she did so, put her foot down on the ground simply to keep herself upright. As I have said, the judge's findings in relation to lighting do not, in my judgment, affect this issue in the way that he thought. But he has made the findings and I do not think we would be justified in setting them aside.
18. We are therefore left with a blemish in this long path in a place in which cyclists would be unlikely to be travelling. The cyclist would be most unlikely to be travelling with a shoulder close to the edge of the wall; far better, for obvious reasons, to be towards the centre of the path. Cyclists would keep away from the gullies, not because of any possible danger beneath their feet, but because it is not pleasant to cycle close to a tunnel wall when there is ample room elsewhere. Moreover, in the present case neither the existence of the gully itself nor its basic design was criticised by the judge as unnecessary for the purposes for which it was there, or inadequate for safety purposes. The judge himself spoke of the gullies serving an admirable purpose. In the end the case before him, as he analysed it, presented itself on the basis that the issue was whether or not the gully had been kept filled and should have been kept filled throughout its entire length with stones.
19. Other suggestions made in the pleadings and in the course of counsel's address, namely, for example, a white line or some sort of metal cover over the gully, were not in the end supported by the evidence and the judge had no criticism to make of its design.
20. In my judgment, a very significant piece of evidence failed to attract the attention of the judge. The reason why it failed to do so seems to arise from the fact that he misdirected himself about the standard of care owed by the local authority. The history of the use of the track during the previous years before the accident amply supported the contention that the track was reasonably safe for use by cyclists. If the judge had been directing himself correctly, he would have attached much more weight than he did to this uncontroverted evidence. As it is, all he did was to express sympathy to the defendants in the context of this being the first accident involving a gully. In fact that evidence served to demonstrate -- and the County Council was entitled to rely on it for this purpose -- that far from the risk of any accident being, as the judge found, considerable, it was minimal. Probably his misdirection meant that in the end he failed to carry out the balancing exercise which is required when deciding the question whether or not a breach of duty has been established. In my judgment, there was no sufficient evidence, even on the judge's own findings, that there had been a breach of Devon County Council's obligation to take reasonable care for the cyclists using that track on the day of this accident. The case therefore was not established.
21. I shall deal very briefly with the issue of contributory negligence. The judge rejected it. It has been raised, certainly on paper, and briefly on the appeal in the course of the argument. The issue does not now arise, but in the present context it is right to make clear that for my part I can see no negligence or fault of any kind in Mrs Beaton herself. As I have endeavoured to explain in the narrative of the events leading to her injuries, she simply came across an unfolding problem involving members of her family. She was not riding along in any sort of silly way; she was simply riding along the cycle track on a sunny afternoon when this happened. She brought herself to a halt in a perfectly sensible way and, having done so, she put her foot down. To find that she had been culpable in any way would, in my judgment, be an abuse of language. That, however, does not assist her in relation to the main issue. In my judgment, the judge was wrong to hold that the County Council was liable to her. Accordingly, despite the sympathy I feel for Mrs Beaton in view of the injuries she suffered, this appeal should be allowed.
22. LORD JUSTICE MAY: I have found this a troublesome case, not least because, as my Lord has just said, I have great sympathy, as anyone would, for Mrs Beaton and her family. She was badly injured and she and her family will have been distressed by what occurred on what should have been a thoroughly enjoyable day out. No doubt the injury and the distress has continued since. In the result, however, I agree that the appeal should be allowed for the reasons which Judge LJ has given. I adopt, without repeating, his account of the facts and circumstances and add a few words of my own.
23. I agree that a fair reading of the Recorder's judgment indicates that he misdirected himself as to the extent of an occupier's common duty of care under section 2 of the Occupier's Liability Act 1957. This provides that an occupier of premises owes the same duty, the common duty of care, to all his visitors except insofar as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise. Then critically in subsection (2), the common duty of care is 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 has invited or permitted the occupier to be there.
24. The claim was also put in the claim form in negligence, but it is not suggested, nor do I think, that the extent of any common law duty was different from the statutory duty. The critical short part of the paragraph of the Recorder's judgment as to the standard of care contains these words:

"Now, the basis it seems to me of the Claimant's case must be whether or not it was reasonably foreseeable, so far as the Defendants are concerned, that an accident of the sort which she has described would happen and on that basis whether the Defendants had a duty under the Occupier's Liability Act to ensure that it did not."

25. As to the question there considered of foreseeability, the claimant's case had no difficulty because way back in 1991 when this tunnel was being made ready to be part of the cycle path, the County Council Works Division produced a works estimate, and that included this sentence: "Edge voids to be filled with single-sized stone for drainage, gas main protection, and pedestrian safety". So an empty gully on the side of this tunnel was in fact foreseen as potentially dangerous to pedestrians. That is why the gully was filled with a kind of gravel. So much for foreseeability.
26. I agree that the Recorder's use of the word "ensure", taken with other passages in the judgment to which my Lord and counsel have referred, show the general tenor of the Reorders approach and indicate that he imposed on the defendants a higher standard of care than that required by the statute. In the light of this error, this court must re-assess the facts found by the Recorder.
27. My highlight reasons (and I emphasise this is only a summary of the main points) for agreeing that this appeal should be allowed are: first, the critical main question was whether Mrs Beaton stepped down into a hole in the gravel whose presence constituted a failure on the part of the defendants to take reasonable care. Secondly, although there was some evidence of a larger hole, the Recorder did not decide the claim on the basis of it. He seems to have decided in Mrs Beaton's favour on the supposition that there may have been a drop of no more than two-and-a-half inches at the place where she stepped down. I say "supposition" because I agree that there is a powerful case that the evidence did not justify such a finding. No one could find such a drop after the accident and there was no basis for rejecting the defendant's evidence that no remedial work had been done in the meantime. Thirdly, I am not persuaded, even on the basis of a drop of no more than two-and-a-half inches, that the possibility of minor imperfections in the gravel in the gully was sufficient to establish breach of the statutory common duty of care in circumstances where no relevant accident had occurred in the tunnel for eight years or more, during which the evidence was that it was used by 30,000 cyclists a year. Fourthly, the lighting may have been dim towards the centre of the tunnel and for much of its length, but it was bright daylight outside on this September day. The gullies extended to the ends of the tunnel and must therefore have been visible to a cyclist entering the tunnel. It is accepted that Mrs Beaton would not have been looking precisely where she was putting her foot at the moment she stopped. Thus any dimness in the lighting cannot sensibly be said to have been causative of her accident. For these highlight reasons I agree that the appeal should be allowed.
ORDER: Appeal allowed with costs to be subject to detailed assessment.