England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRADFORD COUNTY
COURT/HUDDERSFIELD COUNTY COURT HD2 04123
Her Honour Judge Finnerty

		Royal Courts of Justice Strand, London, WC2A 2LL
		24th March 2004

Mr Justice Moses :

Introduction

1. On 5^th July 1997 Tashan Gabriel sustained serious injuries to his left eye. He was then aged 6 years old. He was walking past a building site, when he was struck in the eye by a stone or mud thrown by children playing on the site. The site, at Bracken Square, Huddersfield, was owned by Kirklees Metropolitan Council ("the Council"). Tashan Gabriel claimed damages from the Council through his father and litigation friend. He commenced proceedings on 24^th October 2002.
2. The Council was undertaking demolition work on the site. In its Defence it admitted that construction work had begun on this site on 24^th June 1997, although "little work was actually undertaken" until 1^st July 1997. At the time of the accident it was alleged that the whole area was covered in rubble including mud, bricks, stones and glass. The Council admitted that between 1^st July and 7^th July, the area was in a partially excavated condition and may have included the rubble described in the Particulars of Claim.
3. The Particulars of Claim further alleged that the site was surrounded by residential accommodation and was used by local children as a play area. The Council admitted that Bracken Square was surrounded by residential accommodation, a Council housing estate, and that no perimeter fence had been erected. It asserted that it had been advised by the police not to erect a fence because:-

"it was considered by the police that children in the area would climb the fence and in turn would run the risk of falling and hurting themselves." (see paragraph 4 of the Defence)

4. Although the Particulars of Claim alleged a breach of duty under either the Occupiers Liability Act 1957, on the basis that the claimant was a lawful visitor to the site, or under the Occupiers Liability Act 1984, on the basis that he was a trespasser, at the hearing the claimant relied only on negligence. By that time it had become apparent that it was no longer asserted that the claimant was on the site at the time he was injured. The negligence alleged failures to fence the site, to prevent the land from being used as a play area or to make it unattractive to children. In denying negligence the Council contended that it took all reasonably practicable steps to avoid injury and, so far as I understand paragraph 7 of the Defence, denied any causative link between its actions and the actions of another child throwing a stone in the direction of the claimant.

The Judgment

5. I am compelled to refer to the pleadings in this case to illustrate the background to the accident because of the remarkably few facts found by the judge in her judgment. The judge dismissed the claim on the grounds that the Council, in the circumstances of the case, did not owe a duty of care to the claimant. The only facts which she found, in a judgment of two and a half pages, are set out on the second page between paragraphs 9 and 15. She accepted Tashan Gabriel's account in both his written statement and in his oral evidence (see paragraph 13). In his written statement the claimant said that on 5^th July 1997 he was returning from a shop when a stone hit him in his left eye. He said:-

"this happened as I walked past a building site where children were playing. They were making mud bombs and throwing stones which were on the site. There was no fencing around the site to protect passers-by."

6. He repeated this account in his oral evidence; he said that children were throwing stones at one another on the construction site and, as he walked on the pavement from the shop, he was hit in the eye by a stone.
7. The claimant's account was supported by evidence of a friend of the family, Evelyn Ray, who saw the claimant immediately after the accident occurred and found him lying on the highway.
8. The judge concluded that she was satisfied:-

"Tashan was walking on the highway from the shop, toward the Phoenix public house, when he was struck by a missile, either a stone or mud, thrown by a child who was on the construction site itself." (see paragraph 14)

9. The Council had elected not to call any evidence. It submitted that it owed no duty of care at common law to one who was neither a visitor nor a trespasser on the site arising from the actions of those who were on the site, either as visitors or trespassers "for whom the occupier of those premises has no vicarious liability".
10. The judge rejected this submission saying:-

"17. If there is a foreseeable risk of injury to such a category of persons then, on the balance of probability, a duty of care would exist. However, in my judgment there has to be very clear evidence that such a risk exists.

18. In my judgment, the real issue is one of foreseeability. Was it reasonably foreseeable that the defendant's conduct in allowing children free access to this construction site would expose people walking passed, or near to that site, to the risk of personal injury?.

19. On the evidence I am quite satisfied and find that such was not reasonably foreseeable. There is no evidence whatsoever of anything being projected from that site by anyone for whom the defendant's are not vicariously liable or indeed for anyone for whom the defendant's are variously liable. It was the evidence of Tashan and Ms Ray that neither had seen anyone throwing stones or mud on that construction site before."

11. The essential ground of this appeal is that it was not open to the judge to conclude that the Council owed no duty of care to the claimant. On the contrary, it is submitted that on the undisputed facts, the judge ought to have concluded that the Council did owe a duty of care to the claimant, as he walked past its construction site. The Council's failure to prevent children playing on the site was a breach of its duty and the claimant's injury was a reasonably foreseeable consequence of that breach.

The Law

12. Since the judge's decision was founded on her conclusion that the Council owed no duty of care to the claimant, the appeal was focussed on whether the Council owed a duty of care to those passing by the construction site. The claimant's submissions started from the undisputed and indisputable proposition of law that there is no general duty of care to prevent third parties, such as the mud or stone-throwing children in the instant case, from causing damage or injury.
13. However, Mr Caswell, on behalf of the claimant, contended that stones, rubble and mud on site constituted a source of danger. He submitted that it was reasonably foreseeable that children would enter on the site and meddle or play with the rubble and mud there in such a way as might reasonably foreseeably cause injury not only to those on the site but to others passing by.
14. He founded his submissions upon principles expressed in the House of Lords in Smith v Littlewoods Limited (1987) 1 AC 241. The House of Lords decided that the owners of a derelict building were not liable for damage to neighbouring property caused by fire started by children who had broken into and started a fire in the cinema itself.
15. Lord Goff, in one of the two leading speeches, identified four special circumstances in which a defendant may be liable for damage caused by the deliberate wrong doing of a third party. Two of them founded the claimant's contention:-

i) Where a defendant negligently permits or causes a state of danger to be created on his land which may be exploited by a third party and

ii) Where a defendant knows or has the means of knowledge that intruders may trespass onto his land and create a risk of damage to others.

16. Lord Goff expressed the first circumstance as follows:-

"an occupier who negligently causes or permits a source of danger to be created on his land, and can reasonably foresee that third parties may trespass on his land and, interfering with the source of danger, may spark it off, thereby causing damage to the person or property of those in the vicinity, should be held liable to such a person for damage so caused to him" (see 273F)

17. He described the second circumstance in these terms:-

"if, for example, an occupier of property has knowledge, or means of knowledge, that intruders are in the habit of trespassing on his property and starting fires there, thereby creating a risk that fire may spread to and damage neighbouring properties, a duty to take reasonable steps to prevent such damage may be held to fall upon him." (see 274E-F).

18. Lord Mackay, in the other leading speech, described the circumstance in which liability may be imposed due to a third party's wrongdoing in different terms.
19. He said that the occupier would only owe a duty of care to prevent damage caused by the vandalism of third parties where the occupier was :-

"bound reasonably to anticipate and guard against this danger" (see 275H).

20. He continued:-

"the question whether, in all the circumstances described in evidence, a reasonable person in the position of Littlewoods was bound to anticipate as probable, if he took no action to keep these premises lockfast, that, in a comparatively short time before the premises was demolished, they would be set on fire with consequent risk to neighbouring properties, is a matter for the judges of fact to determine." (see 258 E-F).

21. There is a significant difference in emphasis between the two leading speeches. Lord Goff stressed that liability in negligence for damage caused by the deliberate wrongdoing of others cannot be founded simply upon foreseeability (see eg 272C and 279D). Later in his speech, he repeated that liability should only be imposed where a state of danger may be exploited by a third party in circumstances where a defendant has negligently caused or permitted the creation of that source of danger on his land (see 274B). At first blush, it may appear somewhat circular to require proof of negligence to found a duty of care. But in the context I take Lord Goff to mean no more than it must be proved that the creation of a source of danger resulted from the failure of the defendant to exercise the care reasonably to be expected of him in all the circumstances. Such an interpretation was confirmed in the passage which follows in Lord Goff's speech. He identified ordinary household equipment and installations which might be described as possible sources of danger if interfered with by a third party. A householder would not be held liable for acting in "a socially acceptable manner".
22. Lord Goff concluded this passage by saying:-

"no doubt the question whether liability should be imposed on defenders in a case where a source of danger on his land has been sparked off by the deliberate wrongdoing of a third party is a question to be decided on the facts of each case, and it would, I think, be wrong for your Lordship's House to anticipate the manner in which the law may develop; but I cannot help thinking that cases where liability would be so imposed are likely to be very rare" (see 274C-D).

23. I should also note that Lord Brandon concluded that there was no duty because the behaviour of the vandals was not reasonably foreseeable (see 250E). Lord Griffiths doubted whether there was any universal test to decide whether an occupier is liable for a danger created by a trespasser but agreed that mere foreseeability was insufficient (see 251F). Lord Keith agreed with the speeches of Lord Mackay and Lord Goff.
24. I do not believe that the difference in emphasis between the two leading speeches need cause any problem in this case. Lord Goff was far from suggesting that the criterion of reasonable foreseeability was not a necessary condition for founding the existence of a duty of care to prevent damage by third party trespassers, he was merely emphasising that it was not a sufficient condition.
25. Lord Mackay, too, pointed out that the probability of risk is not the only consideration (see 268E). A reasonable man weighs the risk against the difficulty of eliminating it. The risk may be so small that in the circumstances a reasonable man will be justified in disregarding it (see Lord Mackay's reference to the speech of Lord Reid in giving the opinion of the Board in Overseas Tankship (U.K.) Ltd v Miller Steamship Co Pty (1967 1 AC 617 at 268 E-H). In support of the proposition that proof of the probability of risk (meaning a real risk as opposed to a mere possibility) is not enough, Lord Mackay continued by citing Lord Wilberforce in Goldman v Hargrave (1967 1 AC 645 at 662 to 663:-

"one may say in general terms that the existence of a duty must be based upon a hazard, ability to foresee the consequences of not checking or not removing it, and the ability to abate it." (cited at 269 E-F).

26. Lord Mackay concluded by describing the fundamental principle as being that expressed by Lord Radcliffe in Bolton v Stone (1951 AC 850 at 868 to 869:-

"unless there as been something which a reasonable man would blame as falling beneath the standard of conduct that he would set for himself and require of his neighbour, there has been no breach of legal duty." (cited at 270 A-B).

The Challenge to the Judge's conclusion

27. This appeal was focussed upon the question whether the judge was correct to find that there was no reasonably foreseeable risk of injury caused by the children playing on the construction site. At paragraph 17 of her judgment she expressed the view that a duty of care would arise if it was shown that there was a foreseeable risk of injury to passers-by. But if it was reasonably foreseeable that injury might be caused to a passer-by by the activities of children playing on the site, there still remains for determination the question whether the Council owed a duty of care to remove that risk or whether a failure to take steps to remove that risk amounted to a breach of that duty. There is inevitable overlap between the two questions. The passages to which I have drawn attention in the speeches of Lord Mackay and Lord Goff demonstrate that mere proof of foreseeability of risk of injury is not sufficient to found a duty of care. As Lord Mackay's references to the three cases at the end of his speech establish, there remain the questions whether the risk was so small that in the circumstances a reasonable man would have been justified in disregarding it, whether the defendant would be able to abate the risk and whether, even if there was a duty there was a failure to take reasonable care. Those questions cannot be answered merely by asking whether there was a reasonably foreseeable risk of injury. The extent of that risk and the available means of abating it are also relevant. I emphasise those issues at this stage because they demonstrate the importance of findings as to the background facts in determining whether there was a duty of care and whether, if such a duty existed, there was a breach.
28. The difficulty with Mr Caswell's submission, on behalf of the claimant, lies in its contention that the stones and mud on the site constituted a source of danger. At one stage in his submission, he said that the stones were "inherently dangerous". But, as Mr Goldstaub QC, on behalf of the Council, said, the stones and rubble on the site cannot be described as inherently dangerous at all. It makes no sense to describe the children trespassing on the land as "sparking off a source of danger", a metaphor suitable for fire but not for stones or rubble. The claimant's submission demonstrates the danger of deriving principles in the tort of negligence by way of analogy from decided cases, a danger emphasised by Lord Steyn in Jolly v Sutton LBC (2001) WLR (1082 at 1089 E-F). Cases such as these are, as Lord Steyn put it, "inevitably very fact-sensitive". (see 1089E).
29. In reality the site might only constitute a danger to passers-by on the pavement if it was reasonably foreseeable that children playing there might throw rubble or mud accumulated on the site in such a way as to injure a passer-by. As Mr Goldstaub QC put it, the real question is whether it was reasonably foreseeable that some heavy object would be ejected from the site, fly through the air and injure a passer-by.
30. Mr Goldstaub QC accepted that it was reasonably foreseeable that children would trespass on the site. He further accepted that, when passing by on the pavement, the claimant was both a neighbour in fact, since the pavement ran alongside the construction site, and in law, in the sense that if a heavy object flew in the air from the site towards the pavement, a passer-by might, be injured.
31. But he contended that it was open to the judge to conclude that it was not reasonably foreseeable that trespassing children might play with whatever was on the site in such a way as to cause a heavy or dangerous object to fly from the site and cause injury to a passer-by. The court should be slow to interfere with the judge's conclusions. It should only do so where it took the view that the judge was plainly wrong (see Lord Thankerton in Glasgow Corporation v Muir 1943 AC 448 at 454, Lord Macmillan at 457 and Lord Mackay in Smith v Littlewoods at 258F).
32. I accept that this court cannot interfere unless the judge's conclusion of fact was not justified by the evidence she found. Her conclusion at paragraph 19 as to reasonable foreseeability was a secondary fact or informed opinion (see Lord Steyn in Jolley at 1089B). But this court exhibits reluctance only when faced by detailed findings of fact which are relevant and necessary to the determination of whether a duty of care exists and whether it has been breached.
33. In my view there are fatal flaws in this judgment, in the light of which it is not possible to say whether the judge was right in concluding that no duty of care was owed or whether, if it was, the Council was in breach of that duty.
34. The judge made no findings of fact at all as to the background circumstances. There is no description of the site in relation to the surrounding area and the adjoining pavement. The dimensions of the site are not given. We were shown photographs but they are undated and appear to have been taken long after the event. The judge made no finding as to the extent to which the photographs represent the situation at the time of the accident. There is no reference to the photographs at all. There are no findings as to the general condition of the site or in particular as to the nature and extent of the debris or rubble accumulated during the course of the excavation work but left unattended and unprotected. Conditions on the site are of importance. The extent to which the rubble accumulated during the course of excavation work is relevant to whether it represented an allurement to trespassing children to play with that rubble and throw it about. It must, after all, always be remembered that, as Lord Hoffman remarked in Jolley, children's:-

"ingenuity in finding unexpected ways of doing mischief to themselves and others should never be underestimated" (see 1093 C).

35. Moreover, there are no findings as to the Council's knowledge or means of acquiring knowledge as to the risks that children would trespass onto the site and play there. Nor are there any findings as to the extent of that risk. That factual question is relevant to the issue as to whether a duty of care was owed. The risk may have been so small as to justify the Council in disregarding it. It is also relevant as to whether there was a breach. The judge referred to the defendant's conduct in allowing children free access to the construction site at paragraph 18 of her judgment but made no reference to its knowledge or means of knowledge as to whether that was likely to happen or the extent to which it might happen.
36. There was before the court a number of documents, which tended to indicate that the Council was aware that children might go onto the site. An undated safety plan referred to the objective of:-

"1.1 (ii) minimising the risk to the health and safety of these staff and those of others that might be affected by the Project, in particular, members of the public"

"Specific extraordinary hazards only are highlighted. This plan does not address the commonplace site hazards which must be controlled by the application of normal good site management practices."

37. An annex referred to "surrounding/adjoining land use", referred to residential land use and under the rubric "Safety Implications" stated

"Interface with members of the public especially children and exclusion from the site."

38. A table of extraordinary hazards referred to the possibility of children playing near machinery and under the heading "Assumed Precaution or Method of Working" referred to "Areas to be Fenced off to Public wherever possible." A tender stage safety plan referred to:-

"precautions to be taken to guard against surrounding roads being contaminated with excavated material."

39. A pre-contract meeting on Friday 25^th April 1997 referred to the construction safety plan at paragraph 6: -

"the only matter which needs addressing is the site safety aspects both during construction and when the Contractor is off site. This is of particular importance bearing in mind the location of the works both in the middle of a housing estate and in close proximity to the public house"

40. A Method Statement, part of the tender stage safety plan stated under the heading "Excavation":-

"precautions to be taken to guard against surrounding roads being contaminated with excavated material."

41. A letter from Kirklees Highway Service dated 16^th June 1997 to an unknown occupier stated:-

"construction sites can be dangerous and I would ask you to ensure that everyone, especially children, are kept well away from both works and the construction machinery at all times."

42. After the claimant's injury, there was a progress meeting on 16^th July 1997 in which it was recorded under the heading "Site Safety":-

"a decision taken not to overdo safety. Children trying to get onto site taking this as a challenge. High security fencing has been considered but it was thought this could be seen as provocation to the local community and possibly as scrap and would be more dangerous to children trying to climb over"

43. The judge made no reference to any of these documents at all. They tended to show that the Council was aware of the risk of children gaining access to the site and the dangers to the surrounding area resulting from the conditions on the site. The documents merited consideration by the judge. They were relevant to the issue of knowledge of the Council of the risk of children going onto the site and, to an extent, to the risk arising from the conditions on the site. Yet there is no reference to them in the judgment whatsoever. There was argument between the claimant and the Council before us as to their meaning and significance. But their significance was a matter for the judge. The argument was a matter for the judge to resolve.

Conclusions

44. The only reason which the judge expressed for her conclusion was the absence of any evidence of a previous incident of anything being projected from the site or anyone throwing stones or mud before (see paragraph 19 of her judgment). If that was the reason for the judge's conclusion it was insufficient. Excavation work had only started four days before the claimant's accident. Her reason, if it was a reason, did not justify her conclusion. Before concluding that there was no duty of care owed by the Council to the claimant, the judge ought to have asked the following:

i) whether it was reasonably foreseeable that children would go onto the construction site;

ii) whether, whilst on the construction site, it was reasonably foreseeable that the children would play there;

iii) whether it was reasonably foreseeable that, in playing on the site, they would throw whatever came to hand and;

iv) whether in playing with material on site it was reasonably foreseeable that they might cause injury to those passing by on the pavement.

45. In order to answer those questions it was necessary for the judge to make findings of fact as to the Council's knowledge and means of knowledge. It was necessary for the judge to determine the extent to which it was reasonably foreseeable that children would go onto the site and play there. It was necessary to identify the nature of that which had been accumulated on the site, by reason of the excavation work, in order to determine whether there existed a real risk that children would throw the material about and injure passers-by and, if so, the extent of those risks. A duty of care could only arise by reason of the combination of the presence of children playing on the site and the accumulation of rubble there.
46. Nor will the answers to those questions dispose of the issue of liability. The extent of the risks which the questions will identify, will go not only to the existence of the duty but also to the alleged breach. The extent of the risks will go to the issue of the ability of the Council to abate them it and thus, not only to the existence of the duty of care, but to the steps which the Council ought reasonably to have taken to minimise or remove the risk.
47. The judge fell into error in failing to find sufficient facts to determine whether a duty of care was owed or not. She erred in concluding that a duty of care would arise merely because there was a foreseeable risk of injury to passers-by (see paragraph 17 of the judgement). Further, she fell into error in failing to identify those facts upon which she relied in concluding that there was no reasonably foreseeable risk of injury. In the absence of any clear findings of fact, in my view, the judgment cannot be upheld.
48. However, it is not possible to conclude that the Council did owe a duty of care to the claimant or that it acted in breach of that duty. There are no findings of fact by the judge which enable me to form any judgment as to the correct conclusion.
49. To my mind, the only fair solution to both parties is to remit this case for consideration by a different judge. That judge will have to consider, in the light of all the facts, not only whether a duty of care arose, but whether, if it did, the Council acted in breach of that duty and whether, if it was in breach, the damage suffered by the claimant was caused by that breach. I do not intend to give any indication as to whether a judge, considering all the facts, ought to find that there was a duty of care or that the Council acted in breach. But if I thought that it was plainly unarguable that a duty of care existed or that the Council acted in breach of that duty, it would not be right to remit this case. In the light of the documents to which I have referred, it is at least reasonably arguable that a combination of the accumulation of rubble left by the excavation and the presence of children playing on the site, gave rise to a danger which, in the exercise of reasonable care, the Council should have taken steps to abate.
50. It is regrettable that this matter cannot be resolved speedily, having regard to the age of the claimant and the fact that this accident happened nearly seven years ago. For the reasons I have given, it is not possible to reach any concluded view in the absence of necessary and detailed findings of fact. In those circumstances, I would, for my part, allow the appeal and remit the matter for consideration by a different judge.
51. I should, however, emphasise that my conclusion is not intended to encourage further litigation. The particular circumstances of this case demonstrate, to my mind, that this matter is eminently suitable for compromise.
52. As to costs, I would propose, tentatively, that the defendant should pay the costs here and below. The defendant chose to call no evidence and has lost this appeal. I make this proposal in order to save the time and expense of a further hearing, since both parties would have to travel to London. I would also propose that any argument as to costs should be submitted in writing within 14 days from the handing down of this judgment.

MR JUSTICE MOSES: For the reasons given in the judgment we have handed down, this appeal is allowed.

So far as costs are concerned the order which is contained in paragraph 52, that the defendant should pay the costs of the appeal and below, but, since neither side is here, if that order is challenged, then there should be any submissions in relation to it made in writing within fourteen days from today, the date of the handing down of the judgment.

ORDER: Appeal allowed.