England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MIDDLESBROUGH COUNTY COURT
(HIS HONOUR JUDGE FOX)

		Royal Courts of Justice Strand, London, WC2A 2LL
		9th June 2008

Lord Justice Laws:

1. This is an appeal with permission granted by Sir Henry Brooke on 7 December 2007 against the order of HHJ Fox QC made in the Middlesbrough County Court on 17 October 2007, by which he dismissed the appellant's claim for damages for personal injury. The judgment was given after a trial on the issues of liability only.
2. The appellant is now 56 years old. His injuries were most unhappily very serious. They were the result of an accident which happened at the respondent's premises, the Grimsby Fish Docks, on 18 January 2003. The appellant went to the docks that day with a Mr Sean White. The appellant had just bought a boat from Mr White called the Crusader. It was berthed at the North Quay, as was another vessel, the Tokyo, of which more later. The appellant was proposing to sail to the Orkneys were he ran a diving business. He and Mr White met at the docks on 18 January 2003 so that Mr White could hand over various bits and pieces (as it was put) to do with the boat and to take items of equipment aboard. On the quayside, up against a fence and directly opposite the Tokyo, were eight cylinders. They contained Halon gas in liquid form. That is a substance whose manufacture was prohibited by the Montreal Convention of 1987. The cylinders had originally been fixed aboard the Tokyo as part of the vessel's fire prevention equipment. They and the Tokyo belonged to a Mr MacGrashen.
3. However the cylinders were taken ashore during the process of refurbishing the Tokyo. That was about two-and-a-half years before the accident. The cylinders were of a substantial size, about five foot six long and a foot in diameter. On the quayside they were not enclosed or restrained in any way. The gas inside them was under pressure and, as I have said, in liquid form. If discharged it would immediately become gaseous on contact with the atmosphere. Each cylinder had a manual discharge lever and a safety pin. The safety pin is a heavy wire ring fed through an aperture in the discharge lever. The discharge lever could not be operated without removing the pin. The judge was to find (judgment, paragraph 14) that it needed "not a difficult but a deliberate and determined operation" to remove the pin. Once the discharge lever was operated the discharge could not be stopped. The cylinders did not have a conventional on/off valve. The whole contents would be discharged and because the liquid was held under pressure in the cylinder the discharge would have very great force.
4. The appellant and Mr White finished what they had to do aboard the Crusader and came ashore onto the quayside. There were the cylinders. The appellant was to tell the judge that he recalled going over to them. He remembered standing one of them up and rubbing the gauge: "After cleaning the gauge I don't know what happened". He said he did not recall a safety pin but he would not have removed such a thing. The cylinder discharged. CCTV footage showed the direction of the discharge was horizontal. The cylinder struck the appellant with very great force, causing his injuries, and careered off like a rocket, ending up on board the Tokyo. The valve-head was found a short distance away also aboard the Tokyo. The safety pin was found near the remaining seven cylinders.
5. The judge had evidence from a jointly instructed consulting engineer, Mr Cooper. He opined that the most probable cause of the Halon's discharge was the deliberate operation of the manual discharge lever, and the judge so found (paragraph 29). As I have said, that could not be done without the safety pin being removed. The judge found (paragraphs 32 -35) that the appellant deliberately removed the pin and operated the discharge lever. That finding is not challenged. The judge also found (paragraph 35) that Mr White must have helped the appellant because he could hardly have held the cylinder in a more or less horizontal position in one hand while opening it with the other. This finding is criticised as speculative in paragraph 4(s) of the grounds, but it seems to me to have been entirely open to the judge.
6. The appellant alleged against the respondents both negligence at common law and breach of the common duty of care owed pursuant to section 2 of the Occupiers' Liability Act 1957. That section provides in part:

"(1) An occupier of premises owes the same duty, the "common duty of care", to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.

(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 purposes for which he is invited or permitted by the occupier to be there.

(3) The circumstances relevant for the present purpose include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor…"

7. Before considering the judge's approach to the claim I should set out shortly a number of matters of surrounding fact which, in one way or another, are said to bear on the issue of liability. First there was an inspection of the premises the day before the accident. The report which was prepared in consequence contained a number of recommendations relating to empty LPG bottles on North Quay and unrestrained gas welding cylinders on Fish Market Quay, but no reference was made to the eight Halon gas cylinders. Secondly Mr Cooper, the expert, observed that the respondent's keeping of the cylinders as they did, or failure to dispose of them, was "open to criticism". He gave details in his report. His comment was accepted by the respondent (see judgment, paragraph 41). In fact, the respondent got rid of the seven remaining cylinders some three days after the accident. Thirdly, the respondent's witness, Mr Boyers, told the judge (transcript: pages 176-177 of the bundle) that seafarers have a professional interest in what he called "stuff" which might I think be all sorts of bits and pieces, but would include things -- it may be -- like the cylinders; and it would not surprise him if (and these were the terms of the question to which Mr Boyers assented -- page 177):

"…anyone coming into this particular area were to have a look at what was there and to move something…"

Fourthly the judge stated (paragraph 24) that he took judicial notice of what he described as "a very long-standing part of the culture of the sea", namely the tendency of seafarers to have kit which is to be delivered to a vessel stand on the quayside before being boarded. The judge described this as a factor playing "some, however slight, a part" in his eventual decision.

8. The appellant submits that the first two of these four factors tend to support his case in negligence and breach of the common duty of care. The third factor is displayed in an attempt to show that the appellant's actions in opening the cylinder were foreseeable -- contrary, as I shall show, to the judge's finding. It is said that the judge should not have been influenced at all by the fourth factor. I should say that I am inclined to agree with this last submission. There was no evidence about the culture of the sea and these cylinders had been lying about for two-and-a-half years.
9. Now I must address the core of the judge's reasoning. The judge cited two decisions of their Lordships' house: Jolley v. Sutton LBCl [2000] UKHL 31 and Tomlinson v Congleton BC [2003] UKHL 47 and founded in part at least on the latter decision (see paragraph 50). The judge appears to have held that the respondent did not owe the common duty of care to the appellant because he was using the premises for a purpose other than that for which, within the contemplation of section 2(2) of the 1957 Act, he was permitted to be there. The judge said (paragraph 57):

"Mr Williams invites me to have particular regard to that last part of subsection (2) to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited. The purposes for which Mr Wombwell was invited upon the Defendant company's premises was to fit out and prepare his vessel for sea. It was not to make unlawful interference with another vessel's material, and the difference between the two is a wide one."

10. There has been some debate in the course of argument as to the correctness of this passage in the judgment. For my part, I do not think it is necessary to decide whether the judge was right to hold (if he did) that the section 2(2) duty was excluded because, as it seems to me, the substantial basis of his decision lies elsewhere. The essence of his conclusion was that the accident, or the risk of such an accident, was not reasonably foreseeable. In so finding, he relied specifically on the way in which he held the accident happened. At paragraph 58 he said:

"In my view the Defendants could not reasonably have contemplated that Mr Wombwell would do this or anything like it and so they could not have foreseen the risk of the cylinder discharging as it did."

Then at paragraph 59 he explained his findings of fact thus:

"Although not of the greatest persuasive weight, there is the size and weight of the cylinder itself. In my judgment it did take two men for this accident to happen and that makes it the more unlikely that anyone would be injured in tampering with this cylinder. If Mr Wombwell had removed the safety pin, as I find he did and then pressed the manual discharge lever, as I found he did while the cylinder lay on the ground he might have recoiled, coughing and seeking fresher air but I do not think any appreciable or significant injury would have befallen him. What occurred was a very special, peculiar and in my judgment unforeseeable act by two men, one being significantly injured."

11. It is plain then that the judge found that the appellant removed the pin, operated the discharge lever, and did so with the assistance of Mr White holding the cylinder in a more or less horizontal position. The judge's conclusion on foreseeability was fatal to the appellant's case. Was he entitled to arrive at it? In my judgment he was. The appellant, as I have indicated, both disabled the pin and operated the discharge lever so as to open the cylinder. He did so deliberately, with Mr White's assistance. I do not consider that the evidence about a seafarer's interest in "stuff" makes this event foreseeable. Indeed, the same witness, Mr Boyers, said (page 176): "Generally people keep themselves to themselves on the quays".
12. In all these circumstances, in my judgment the judge was entitled to find that the kind of event which happened here was not foreseeable. But the foreseeability of such an event was critical to the appellant's claim against the respondents, whether put at common law or under the common duty of care.
13. I do not say that the expert's criticisms were misplaced nor that there might not have been a breach of duty in other circumstances. However for the reasons I have given, the judge's core finding here is not undermined in the appeal and accordingly for my part I would dismiss it.

Sir John Chadwick:

14. I agree. The claimant in this case relied upon section 2(2) of the Occupiers' Liability Act 1957. That section imposes the common duty of care: defined as "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 purposes for which he is invited or permitted by the occupier to be there".
15. I prefer to express no view in this case as to whether, in tampering with property which had been left by a third party and in which he had no legitimate interest, the claimant was using the premises for purposes for which he was permitted by the dock company to be there; or whether he had gone beyond such use of the premises and had become a trespasser. I express no view on that point because it is unnecessary to determine that point in the particular facts of this case.
16. The duty under section 2(2), where it arises, is to take such care as in all the circumstances of the case is reasonable. That subsection must be read with subsection 2(3), which provides that the circumstances relevant for that purpose include the degree of care and want of care which would ordinarily be looked for in such a visitor -- that is, in a visitor who has been invited or permitted to be on the premises. At paragraph 58 of his judgment in the final sentence the judge said this:

"…a reasonable contemplation of visitors [to this part of the dock company's premises] save for the bizarre would be that responsible seafarers only would be upon the premises. A reasonable, responsible seafarer does not act in the way that I found Mr Wombwell did."

17. The judge had found that the claimant, Mr Wombwell, with assistance from another, had lifted the cylinder, removed the safety pin and deliberately operated the manual discharge lever. To guard against the risk of a visitor acting in that way and suffering injury as a result would require, as it seems to me, either (i) an absolute prohibition against the storage of cylinders on the quayside with compulsory removal as a sanction or (ii) the provision of a locked cage for such storage. Steps of that nature would be seriously restrictive of the use which visitors may need to make to the quayside and would involve expense and inconvenience. Given the judge's conclusion that the risk of a visitor acting in the way that this visitor chose to act was so remote as to be, in practice, unforeseeable, I take the view that the section does not impose a duty to take steps of that nature.
18. For those reasons I too would dismiss this appeal.

Lord Justice Waller:

19. I too prefer not to express any concluded view on whether the judge's conclusion on section 2(2) is correct. It seems to me that the judge's conclusion on foreseeability is determinative of this appeal and unattackable in this court for the reasons given by Laws LJ. I would also agree with the reasoning of my Lord, Sir John Chadwick , in relation to section 2(3).
20. I thus would agree that this appeal should be dismissed.

Order: Appeal dismissed