England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CARDIFF CIVIL JUSTICE CENTRE
(HHJ MASTERMAN)

		Royal Courts of Justice Strand, London, WC2A 2LL
		15 June 2004

Lord Justice Potter :

Introduction

1. This appeal concerns an unhappy accident when the infant claimant (who sues through his mother and litigation friend Catherine Stevens) fell from the first floor window of a house let by the appellant local authority ("Gwent") to his mother, in which she had lived with her family as their home for some years. The case raises the question whether Gwent, who it was accepted owed no duty of care to the claimant arising out of any disrepair or defect in the premises per se, were nonetheless liable in negligence on the basis that they had previously been requested by the claimant to install a safety lock upon the window in addition to its lever-action fastening handles as a safety precaution, in particular because she had a young child in the flat. Gwent had refused to do so, not on the grounds of cost or difficulty, but upon the grounds of council policy that window locks should not be fitted for reasons of fire safety.

The facts

2. The accident happened on 9 February 1999. Mrs Stevens was, with her husband, a joint tenant of the house at 8 Hillcrest View, Cwmtillery Abertillery. They had moved into the property in May 1996 following recent renovation of the property. The house (which was part of a block) was on three floors with the main living room at first floor level. From the main living room there was access by a glass patio-style door onto a small balcony. A few feet to the right there was a double-glazed casement window in two vertical sections, the left section being non-opening and the right section opening outwards without restraint. There was no balcony beneath it and thus there was drop of some 10 feet to the yard below. The window could be secured in the closed position by two rotating latches with handles, one low down and the other three-quarters of the way up the leading edge of the window frame. When the handles were pressed downwards the latch engaged with the window frame so as to keep the window shut. In order to open the window it was necessary to rotate the handles upwards so that the latch disengaged and to push outwards upon the window, which was hinged on its right-hand side. There was a narrow internal windowsill beneath, some 3 feet 6 inches from the floor. Beneath the full width of the windowsill was a slim radiator attached to the wall. It was not possible for a small child to open the window from a position standing on the floor. Nor would it be possible for such child to get onto the windowsill other than by using a piece of furniture or some other object at lower level than the windowsill as a stepping-stone for that purpose.
3. According to the evidence of Mrs Stevens, which the judge accepted, shortly after the Stevens moved in the claimant's sister, then aged 4, was found sitting on the sill of the open window with her legs dangling outside. It appeared to Mrs Stevens that she had found her way up onto the windowsill by climbing onto the unit on which the television was housed which had been placed close to it, and which gave her enough purchase to get from the top of the television onto the sill. On a subsequent occasion when a local authority officer was visiting the house Mrs Stevens asked him whether a lock could be placed on the window. Although he said that something would be done about it, it was not done. Mrs Stevens therefore spoke to Mr Hackling, Gwent's Housing Officer when he visited the premises and she asked for locks to be fitted to the window. Having said he would "look into it" he later told her that it could not be done because it would be against fire regulations. Mrs Stevens asked whether she could fit a lock herself but was told by Mr Hackling that she should not do it because of the fire risk. In her witness statement, she said that Mr Hackling told her she could not fit locks herself "because this would create a fire hazard and special locks which could be opened in the event of fire were necessary". She added in evidence that he had said that, if she fitted locks and "anything happened, then [she] could get prosecuted".
4. After a considerable interval, and following an attempted burglary at the premises in January 1999, Mrs Stevens contacted her local councillor Mr Davis and the police to ask what she could do about the problem of security. Mr Davis wrote to the Director of Community Services as follows:

"[Mrs Stevens] was at home when this incident occurred and is now very concerned as to the security and safety of her family and property as these houses are two-storey and she has young children. I am therefore requesting locks for the windows in these premises, not only for security reasons but also for the added safety of the young children living there."

5. On 9 February 1999 the claimant, then aged 2 years 3 months, managed, in the absence of his mother or any witness, to open the window and fell out sustaining serious injury. Following the accident and after inquiry of the suppliers of the window to find out what could be done, Gwent fitted a safety catch to the window of a type which operated at the top of the window, falling into position as the window was opened and preventing it opening more than some 2 or 3 inches. In order to open the window further the safety catch could be released by reaching through the gap and lifting it up at a level which was out of reach of a small child, even if standing on the windowsill. The judge found that, had such a catch been in position at the time, it would have been effective to prevent the accident from happening.
6. The case for the claimant as pleaded in the Particulars of Claim was framed in "negligence and/or breach of statutory duty" under the provisions of the Occupier's Liability Act 1957. The particulars of negligence and/or breach pleaded were:

"(a) failing, despite several requests to do so, to fit safety catches to the second floor windows of the property.

(b) failing, despite requests to do so, to allow the claimant's parents to fit safety catches to the second floor window at the property.

(c) in the premises, exposing the claimant to a foreseeable and unnecessary risk of injury."

7. It was acknowledged at trial that the case could not be put on the basis of the statutory duty of Gwent under the Occupier's Liability Act 1957, because Gwent were not occupiers of the property. The matter thus proceeded simply upon the basis of common law negligence based on the failure of the council to respond to the requests of the claimant's parents.
8. The judge's findings so far as the occurrence of the accident was concerned were these. He accepted the evidence of Mrs Stevens that she had left the window closed and with the latches down and in place. He expressed himself satisfied that:

"Somehow Tom got himself up, perhaps by using the television unit, and then the radiator as stepping stones, onto the windowsill and from there, of course he would have no difficulty at all in freeing the window catches and I think that probably that is what happened and resulted in his fall."

9. He expressed himself surprised that Mrs Stevens had not, over the years, and following the incident with her daughter some years before, acquired a longer television cable so that the television, with its accompanying unit could be moved further from the window, she having said in evidence that she was aware on occasions that her son had climbed on to the unit to try and get to the telephone to the right of the television set.
10. So far as concerned the failure of Gwent to supply safety locks in response to the requests of Mrs Stevens and her expressed fears for the safety of her children, the judge said this:

"I am satisfied that the local authority declined to fit locks to the windows, and they did so on the grounds of fire safety … I accept that the local authority had a well-grounded fear of their tenants being trapped inside premises by fire. Mr Evans [Gwent's Housing Manager] was able to speak of that with personal experience because of incidents in that part of the South Wales valleys where there had been just that danger realised and people had lost their lives as a result of being trapped in houses by fire from which they could not escape. I do not know the precise circumstances of those cases but plainly a window which cannot be easily opened, or perhaps cannot be opened at all because a key has been lost, can contribute, if not actually cause, deaths in such circumstances, and therefore I accept that the local authority had to balance up the dangers that are posed by first and second floor windows and so on, and the possibility of people falling out of them, against the dangers of people being trapped inside buildings in a fire, and they took the decision, as really a blanket policy decision, that window locks should not be approved and, therefore, not fitted."

11. Having accepted that the house was not in a state of disrepair and having acknowledged the limitations on the liability in tort of a landlord in respect of the state of let premises: see Cavalier v Pope [1906] AC 408, the judge nonetheless found Gwent liable by analogy with the decision in Stockley v Knowsley Metropolitan Borough Council [1986] 279 EG 677. In that case, upon the particular facts, a council which owned a two-storey building divided into four flats, one of which was occupied by the plaintiff, was held liable to her for failing to prevent frozen water pipes in the roof of the building (which was outside the demise to the plaintiff) from bursting and flooding her flat. On being warned by the plaintiff of her fear that such might happen, the council had advised the plaintiff to turn off the stopcock in the back yard of the building (again outside her demise) which supplied water to the pipes, without telling her where and how it should be done. The council failed itself to take the necessary action with the result that the plaintiff's flat was flooded. The judge in this case observed that the Stockley decision seemed to establish:

"16 … that given appropriate circumstances the local authority can be liable to a tenant in negligence, and I have had to ask myself whether in this case a duty of care, as in the case of Stockley, arose. It seems to me it can only arise, on the facts, in this one way, which is that the landlord council had been specifically warned of a danger, that they had been asked to help to abate or minimise that danger and that they had declined to do so and that it was unreasonable for them to so decline. There is an added feature in this case which is that the council had actually told Mrs Stevens not to take it upon herself to fit a safety catch." (emphasis added)

It is to be noted, as is not in dispute, that the last sentence is inaccurate. Mrs Stevens' evidence was that the remarks of the council had been directed to the use of locks, not "safety catches" of the type eventually fitted.

12. The judge expressed his conclusions as follows:

"17. …. the policy which the local authority relies on, namely, that of balancing one danger against another, is as a general rule justifiable. On the one hand there is the danger of a child falling out of a window, on the other there is the danger of individuals, including children, being trapped in a burning building and killed, and I find it very difficult to criticise the local authority for coming to the decision they did. In other words, I do not say that they were unreasonable in approaching it on that basis as a general rule but I think I have to look at the specific facts of this case … that the council was asked to look at a situation where one child had very nearly fallen out of a window and asked to decide whether in this particular case that danger should be averted by the fitting of some kind of lock or safety catch. It was a matter for them. I have to ask myself whether it was reasonable for them to decline to do so, and on the facts of this case and the evidence I have heard it seems to me crystal clear that the council did not give this matter individual consideration. It was simply dealt with on the basis of a blanket policy that window locks were not going to be approved. (emphasis added)

18. I do not find that the council applied their minds to this particular window in this particular case against the particular background of facts which I have described. It seems to me that there being a duty of care arising in these circumstances, that duty of care must extend to considering individual circumstances where there is a known danger and deciding whether the tenant should be assisted to minimise that danger, and here I think the council did not act in that way, and therefore I found it impossible to say that they have acted reasonably and, against that background, I come to the conclusion that Mrs Stevens, on behalf of her son, has established liability against the council and therefore that this action succeeds."

The parties' submissions

13. The submissions of Mr Murphy QC on behalf of Gwent can be shortly summarised in this way. He submits that, so far as liability is concerned, the key passage of the judgment is that contained in paragraph 16 (quoted in paragraph 11 above), which paragraph he asserts contains two errors. First, he submits that the judge misunderstood or misapplied the decision in Stockley as being based upon a broad principle that once a landlord council has been warned of a possible danger, then the council has a duty to abate or minimise it.
14. Second, Mr Murphy rightly points out that the refusal of the council to fix locks or permit locks to be fitted to the windows of its dwellings (which the judge expressly found to be based on a reasonable policy of fire safety) did not, on the evidence, amount to a refusal to fit or permit the fitting of a safety catch of the type eventually fitted, which does not appear to have been suggested by either side at the time. Although there was in evidence an internal Gwent office note of uncertain date referring to the fact that Gwent were "unable to fit catches due to fire hazard", its date and authorship were not established and Mrs Stevens did not suggest that she had had any conversation with Gwent concerning safety catches as opposed to locks. In respect of any alleged duty to fit locks, Mr Murphy submits that the council's refusal was justified. In respect of any duty to fit safety catches of the type eventually fitted, he submits that, short of any express request from Mrs Stevens or any undertaking by Gwent to search for and/or fit a suitable safety catch, no assumption of responsibility or duty of care on the part of Gwent could be established.
15. In so far as the judge criticised or found the council liable for dealing with the matter on the basis of a 'blanket policy' that window locks were not and would not be approved (see paras 17 and 18 of the judgment quoted at paragraph 12 above) Mr Murphy submits that the council should not be criticised and were not obliged to make an exception to their general rule in circumstances which were not exceptional, in the sense that the position of Mrs Stevens as a mother with young children in a council property fitted with windows with similar latch fittings and subject to a similar fire safety policy was not an exceptional case.
16. Mr Evans QC on behalf of the claimant argues in support of the judge's decision and adopts his reasoning. He submits that, on the basis of the complaints raised by Mrs Stevens, Gwent should not have reacted by a simple embargo on safety locks but, in the light of her expressed fears, should have investigated the position, in which event they would have found a suitable safety catch of the type eventually fitted.

Conclusion

17. In my view, in coming to his decision, the judge was wrong to derive assistance from the decision of this court in Stockley. There are two important distinctions between the position of Gwent in this case and that of the borough council in Stockley. There the judge held, and the case in the Court of Appeal proceeded on the basis that, the council had a duty of care to prevent damage to its tenants from flooding occurring from a burst pipe in the loft (which part of the house was in the control of the council and not the plaintiff). It was this duty which the council failed to discharge when, unable to send someone round to turn off the stopcock, they told the tenant to turn it off but gave her no instructions as to where it was or how to do so. The ratio of the decision appears from the judgment of Neill LJ. In referring to the judgment of Lord Wilberforce in Goldman v Hargrove [1967] 1 AC 645, he said at p.143:

"Lord Wilberforce came to the conclusion that the authorities to which he had drawn attention supported the existence of a general duty upon occupiers in relation to hazards occurring on their land, whether natural or man-made. Later (on p.663) Lord Wilberforce considered the extent of the duty. The conclusion he came to can be summarised in this sentence:

In such situations the standard ought to be to require of the occupier what it is reasonable to expect of him in his individual circumstances.

…

It seems to me that from those authorities one can get the following guidance which is relevant to this case: that, once the local authority were apprised of the fact that a pipe was frozen and were aware, or should have been aware, that when the pipe thawed, it would be likely to burst and cause water to flow out into the property below, they were under a duty to do whatever was reasonable in the circumstances, having regard, as Lord Wilberforce stressed, to their capacity to act and their ability to abate or deal with the hazard.

So that the fact that a duty of some kind existed seems to me to be plain, and indeed was not strenuously contested by Mr Earlam, but he said (and this is really the crux of the case) that what the council did was an adequate and complete fulfilment by them of the duty which they owed and the difficult circumstances in which they were placed."

18. Having reviewed the facts of the case, Neill LJ stated at p.144:

"… it seems to me that there was just sufficient material on which the judge could come to the conclusion that the council, knowing it was an emergency and having told her that they would get somebody out as soon as possible, should have impressed on her the importance of turning the stopcock off and should have given her some further advice as to how she ought to cope with that."

19. In the instant case, there was no emergency or external threat which called for council action or imposed upon it a duty to act. The question for the judge was whether, in a situation where he found that the council's 'no locks' policy was generally justifiable, Gwent, once alerted to the fears of Mrs Stevens, was required to take different and exceptional measures for the protection of her family. Specifically, she having expressed her fears, were Gwent, without request on her part, let alone any promise of action, obliged to find and fit a special form of safety catch to her windows? I do not think they were.
20. In my view, the starting point in this case is that it does not involve, and indeed has not been put upon the basis of, any breach of Gwent's duties as a local authority landlord, either under the tenancy agreement, the Housing Acts or any other statute or regulation governing health and safety. Nor is it suggested that, in the absence of complaint from Mrs Stevens, the state of the window represented any hidden, special or exceptional danger which should have alerted the council to the need for an exception to be made to its 'no locks' policy. In that situation, as acknowledged by Mr Evans before us, it becomes necessary for him to demonstrate that communications between the council and Mrs Stevens were such as to give rise to a duty of care to provide a special 'child-proof' safety catch to Mrs Stevens' windows. In my view he fails to do so.
21. So far as the complaints of Mrs Stevens were concerned, it is apparent both from her witness statement and her evidence that her request was for window locks which the council refused on the grounds of their safety policy. That policy was (as the judge held) reasonably based upon experience of past tragedies arising from the use of locks where victims of fire had lost or were unable in time to locate a key: c.f. Adams v Rhymney Valley District Council [2000] 33 HLR 41.
22. In paragraphs 17 and 18 of his judgment (see paragraph 12 above), the judge criticised Gwent for meeting Mrs Stevens' requests with a response based on general policy rather than upon what she perceived to be the requirements of safety. He found that, by such a reaction, the council was in breach of a duty of care owed to the claimant and Mrs Stevens to give their case special and individual attention. While I do not seek to cast doubt upon the general proposition that, in appropriate circumstances, under the general law of negligence a local authority landlord may be liable to a tenant who may foreseeably be injured as a result of the acts or omissions of that local authority, it is necessary, as in all other cases, to demonstrate (a) that the local authority was under a duty of care in the circumstances, (b) that it was in breach of that duty and (c) that in consequence the claimant sustained damage.
23. It seems to me that, here, the claimant's case falls at the first hurdle. In relation to Mrs Stevens' request to fit safety locks, given the judge's finding that there was no general liability of Gwent to provide safety locks for its tenants, the council was entitled to take a view that its policy, arrived at on the basis of a balance of risk, should be applied, in the absence of evidence that its application presented exceptional risk to the safety of the Stevens family. There was in fact no evidence that this was so. The evidence was rather that the Stevens children (no doubt like many others), if left to their own devices and with the means by which to do so, might climb up on the windowsill and seek to interfere with the window catches. The (subjective) concerns of Mrs Stevens in this respect did not per se negate the validity or application of the policy considerations which caused the council generally to refuse to supply or authorise the fitting of window locks. In refusing Mrs Stevens' requests Gwent were entitled to assume appropriate vigilance and ordinary good sense on the part of Mrs Stevens, by moving to a safe distance from the windowsill the television (or any other piece of furniture) upon which her children were prone to climb in order to reach the windowsill. If it be the case (as the judge held) that the concerns expressed by Mrs Stevens were not given individual consideration, there seems to be no good reason to think that the view of the council would have been any different had such consideration been applied.
24. As to the fitting of a special 'safety catch' of the type later fitted, it was never suggested by Mrs Stevens in evidence that such a device had been requested by her, let alone that the council had forbidden her to have one fitted. Indeed, it is not apparent that, at the time of her complaints, the existence of such a device was, or ought to have been, known to Gwent. The fact that Gwent made special inquiries to that end after the accident does not in my view demonstrate that they were under any duty or assumed any responsibility to do so prior to the accident. It was stated in evidence for Gwent that, despite doubts as to whether the safety device installed was in fact 'child proof', it was installed after the accident to alleviate the distress caused to the claimant's family and in response to pressure from the Chairman of Housing. Whether or not that was correct, I do not consider that breach of any pre-existing duty has been established on the part of Gwent.
25. Accordingly, I would allow this appeal.

Lord Justice Carnwath:

26. I agree.

Mr Justice Bodey:

27. I also agree.
Order: Appeal allowed. (Order does not form part of the approved judgment)