England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MIDDLESBOROUGH COUNTY COURT
MR RECORDER FAIRWOOD
LOWER COURT NO: 7PL01381

		Royal Courts of Justice Strand, London, WC2A 2LL
		26/02/2010

Lord Justice Wilson:

1. The claimant appeals against the dismissal of his claim against the defendant by Mr Recorder Fairwood in the Middlesborough County Court on 2 March 2009. The defendant owns and occupies an electricity substation in Hartlepool. During the evening of 9 August 2001 the claimant, who was then aged 15 and was six feet two inches in height, climbed into the substation as a trespasser and suffered terrible injuries. He came into contact with a bus bar carrying 66,000 volts and was electrocuted. He sustained burns to over half his body and underwent amputation of the right leg below the knee. His injuries have had a devastating permanent legacy. But the recorder's task was only to investigate liability including, of course, in the event that the defendant was in any way liable to the claimant, an assessment of his contributory negligence which, at least to some extent, had to be and was conceded on his behalf.
2. The way in which the claimant unsuccessfully sought to fix the defendant with liability towards him was ultimately by reference only to the Electricity Supply Regulations 1988, SI 1988/1057, which have been superseded by other regulations with effect from 31 January 2003. Regulation 20 applied to the substation because of the high voltage of energy transformed there. Regulation 20(2) was therefore in play. It provided that:

"The supplier shall –

(a) enclose any part of a substation in the open air, containing live apparatus which is not encased, by a fence not less than 2.4 metres high to prevent, so far as is reasonably practicable, danger or unauthorised access;"

The onus of establishing that it had complied with paragraph (2)(a) of the regulation lay upon the defendant.

3. Although in this appeal an assault is made upon the recorder's conclusion, in particular in relation to the concept of reasonable practicability contained in the subparagraph, no criticism is – or could be – made about the clarity and concision of his written, reserved judgment.
4. The site of the substation is rectangular and it is adjacent to a council estate. There is an expanse of open land, in particular to the west, but also to the south and east, of the substation, where children play and young men gather. A rendered brick wall surrounds the substation and, in that it measures 13 feet four inches (or 4.08 metres) in height, it clearly satisfies the minimum requirement for the height of the enclosing "fence" (which is agreed to include a wall) set in the subparagraph. On the north side of the substation are the gates into it. They are set at the corner with the western side of the wall, are more than ten feet high and are padlocked; but, in that the claimant did not enter the substation through or over the gates, they play no part in the history.
5. Of crucial importance are two structures on the north side of the wall just to the east of the gates. The first is a buttress which lies a few feet from the eastern edge of the gates. The west side of the buttress protrudes outwards from the side of the wall by about four feet eleven inches but its east side appears to protrude outwards somewhat less far. The buttress runs down to the ground and up as high as the wall so it is also 13 feet four inches high. The buttress has a flat top, about 15 inches by 12 inches. It is also constructed with rendered brick. The second is a set of steel railings atopped with trident spikes; one end of them is set against the northern wall of the substation and they extend from the wall at an angle of 90°. The purpose of the railings is to encase an area of land outside the northern wall of the substation, which the defendant owns and which it thereby seeks to protect against trespassers; and the railings with which we are concerned effect the encasement at its western side. The height of these railings is about seven feet five inches; and nine inches below the top of them runs a horizontal cross-bar. The position both of the railings at the point at which they start to extend at a right angle from the wall and thus of the stanchion fixed to the substation wall which gives the railings that fixed starting point is very important; indeed the position of that stanchion in relation to the buttress is almost crucial. The first of the steel railings had been fixed hard up against the east side of the buttress; and the stanchion to which I have referred had been fixed to the wall at the inner corner of the east side of the buttress.
6. Since the height of the perimeter wall of the substation is 13 feet four inches and since the height of the steel railings up to the cross-bar is six feet eight inches, one would confidently conclude that a person who, somehow or other, had managed to climb on top of the cross-bar (stage one) and who aspired to climb the remaining height of the wall in order to get to the top of it (stage two) would be defeated by the need to climb a precisely equivalent distance, namely a further six feet eight inches. The recorder found that the claimant had indeed managed to climb on top of the cross-bar of the railings and had thereby achieved stage one. He found that the claimant had done so by using a piece of wood which he had either found to be propped up, or had himself propped up, on the ground against the foot of the railings by the extremity of the buttress, at an angle of about 45°, being apparently enough, in the light of the claimant's remarkable athleticism, to enable him to clamber up on to the cross-bar of the railings. But how could he possibly have scaled the remaining six feet eight inches in order to achieve stage two?
7. The answer is that the recorder found that, in achieving stage two, the claimant had in the event been required to scale eighteen inches less than that, namely five feet two inches. Why so? The answer lies in three further pieces of wooden debris which the claimant either put in place or found to be in place, in order to make his task just about possible. The three further pieces of wood are helpfully described as the length, the block and the wedge. The length was jammed into the small space between the stanchion of the railings and the wall. I have been unable to locate evidence of the width of this space but it can have been no more than a very few inches. The block, namely a rectangular piece of wood no more than about three inches by two inches, was placed on top of the stanchion and rested against the top of the length, which thereby gave it support. The wedge, rectangular in shape and perhaps about nine inches in length was shoved down on to the top of the stanchion and was apparently held in place, at least partly, by the block. The judge adopted the loose description offered by the claimant's expert to the effect that the three pieces of wood had been assembled into a "makeshift ladder". They were but three pieces of wooden debris collected together and ingeniously applied to the back and top of the stanchion in order that the aspirant trespasser would not need to climb quite as high as six feet eight inches: for, were he to place one of his feet on the top of the wedge and to climb from there, his task would be to scale five feet two inches. But let us not forget that his scaling that distance meant his somehow pulling up his whole body to the point at which he could stand upon the flat top of the buttress, about 15 inches by 12 inches. Such is, so the judge found, the feat which the claimant achieved.
8. But what did the claimant find when he got to the top? Above the top of almost every part of the four walls of the substation the defendant had applied "Expamet" Rotating Anti-Climb Devices (RACD). One might loosely describe RACD as spiked wire wound around a steel thread running two feet above – and parallel with –the top of the walls and fixed in place by stanchions running from the steel thread down to the outside of the walls, to which they were attached. It was a major part of the claimant's case to the recorder that, in applying RACD around and above the top of the walls, the defendant had failed to apply it around the whole of the flat top of the buttress protruding outwards from the north wall. For RACD was applied above only one of the three relevant sides of the buttress (the south, or internal, end of it being for this purpose irrelevant) namely only above the west side. Thus, upon having scaled five feet two inches, the claimant at least found himself not confronted with RACD above the east side of the buttress directly facing him.
9. The movements of the claimant inside the substation to the point at which the tragedy occurred (stage three) are almost equally remarkable but irrelevant to the defendant's liability to him. In a sentence, he jumped over the RACD apparently fitted at the south, or internal, end of the buttress, traversed the roof of the control room, slid down a telecommunication mast to the ground, walked or ran to the second of the two transformers, climbed some 14 feet on to its roof (apparently with the help of a drain-pipe) and, at some stage, came into contact with the exposed bus bar on the top of it.
10. The recorder was appropriately cautious in making surrounding findings of fact. He found that the claimant might have effected entry in order to look for a football which might have been kicked over the substation wall; a football had indeed been found inside the substation, near the site of the tragedy, on the day of its occurrence. He found that, having climbed the second transformer, the claimant shouted to his friends and possibly had a cigarette. He found that the claimant had probably not been alone in entering the substation that evening. He found that there was no record of unauthorised entry into the substation and no evidence of internal graffiti or other internal vandalism. He accepted that the defendant had classified the substation as being at high risk of entry by unauthorised persons and, as such, as requiring monthly inspections; and that one such had taken place on 12 July 2001. He found that the system for looking for, and clearing, debris was adequate and that it would be unreasonable to expect the defendant to have kept the outside of the substation continually clear of small-sized debris such as the four pieces of wood.
11. Regulation 20(2)(a) obliged the supplier of electricity, on pain also of criminal liability (see regulation 39), to enclose any part of a substation of a specified character by a fence "not less than" a specified height "to prevent", so far as was reasonably practicable, danger or unauthorised access. In my view the conjunction of the two phrases which I have quoted makes the extent of the obligation slightly obscure; any such obscurity was inherited from its predecessor (regulation 9(a)(ii) of the Electricity Supply Regulations 1937) and has been bequeathed to its successor (regulation 11(b) of the Electricity Safety, Quality and Continuity Regulations 2002 SI 2002/2665) notwithstanding differences between its wording and their wording in other respects.
12. Clearly, however, the regulation encompasses a requirement to take specified action, so far as it is reasonably practicable, in order to prevent danger. In that respect, at least, there is hallowed authority. In the decision of this court in Edwards v. National Coal Board [1949] 1 KB 704 Asquith LJ said, at 712:

""Reasonably practicable" … seems to me to imply that a computation must be made by the owner, in which the quantum of risk is placed on one scale and the sacrifice involved in the measures necessary for averting the risk (whether in money, time or trouble) is placed in the other; and that if it be shown that there is a gross disproportion between them – the risk being insignificant in relation to the sacrifice – the defendants discharge the onus on them."

In Austin Rover Group Ltd v. HM's Inspector of Factories [1990] 1 AC 619 Lord Goff, who had quoted the words of Asquith LJ set out above, said, at 626H-627A:

"… for the purpose of considering whether the defendant has discharged the onus which rests upon him to establish that it was not reasonably practicable for him, in the circumstances, to eliminate the relevant risk, there has to be taken into account (inter alia) the likelihood of that risk eventuating. The degree of likelihood is an important element in the equation. It follows that the effect is to bring into play forseeability in the sense of likelihood of the incidence of the relevant risk, and that the likelihood of such risk eventuating has to be weighed against the means, including cost, necessary to eliminate it."

The recent decision of this court in Baker v. Quantum Clothing Group [2009] EWCA Civ 499 is (so Mr Purchas QC on behalf of the defendant tells us) likely to be challenged in the Supreme Court. I cannot think, however, that there could be successful challenge to the observation of Smith LJ, at [85], that, in referring to the "quantum of risk", Asquith LJ must have been referring to the gravity of the harm which might occur as well as the likelihood of its occurrence.

13. The recorder cited the words of Lord Goff set out at [12] above. In addressing the notion of reasonable practicability, he observed – in favour of the claimant – both that the risk was of severe injury and even of death and that the cost and effort involved in the defendant's application of RACD above the west and north sides of the flat top of the buttress would have been minimal. Nor did he accept the defendant's argument that such would not have prevented the claimant's entry. He proceeded however – and it is accepted that in the light of the jurisprudence he was right to do so – to consider whether it was foreseeable that the claimant would achieve entry. This was the rock on which the claim foundered – and, according to Dr Powers, who now leads Mrs Hodgkin on behalf of the claimant, wrongly foundered. For the recorder found that:

(a) it was foreseeable that, with the help of a climbing aid such as the piece of wood propped up on the ground against the railings, a person might climb on to the cross-bar of the railings (stage one); but

(b) (i) in general it was not foreseeable that even a determined trespasser would climb the distance of six feet eight inches between the cross-bar and the flat top of the buttress (stage two); and

(ii) in particular it was not foreseeable that he would reduce that distance (albeit that in this case he remained confronted by the need to climb five feet two inches) by use of a precarious wooden three-piece "makeshift ladder" which someone had taken considerable trouble to construct behind and on top of the stanchion.

The recorder therefore held that the element of foreseeability inherent in the concept of what was reasonably practicable was absent and that the defendant had established that it had complied with paragraph (2)(a) of the regulation.

14. It is logical to address first an argument about the scope of regulation 20(2)(a) which the defendant raises in a respondent's notice and which it raised only obliquely before the recorder. The argument is that:

(a) the subparagraph is concerned with the height of a fence, including, best of all, a wall;

(b) it requires the height of the fence to be at least 2.4 metres and indeed to be as much higher than that as may prevent, so far as is reasonably practicable, danger or unauthorised access;

(c) but, limited as it is to the prescription of a fence and its height, the regulation does not require the supplier to take security measures additional to erection of the fence in order to prevent it from being scaled with climbing aids (whether by the removal of wooden debris lying around or by the application of RACD to all three external sides of the top of a buttress or otherwise); and

(d) any duty to a trespasser to take security measures additional to erection of the fence can arise only under s.1(3) and (4) of the Occupiers' Liability Act 1984.

15. I regard the defendant's argument not as wrong but as misleading. For whether the supplier has erected a fence high enough to discharge the duty under the regulation will depend on all its surrounding features. The erection of a brick wall say 20 feet high would be likely to discharge the duty even though steel railings seven foot five inches high extend outwards from it and even though the supplier had not applied RACD above the top of that part of the wall. On the other hand the erection of a brick wall only 13 feet four inches high might not discharge the duty unless, in the light in particular of the existence of such railings, the supplier had applied RACD above the top of that part of the wall. Indirectly, therefore, the regulation may require the supplier to take security measures additional to erection of the fence. Whether in any case it does so depends upon whether, in the context of the features which surround it, the fence would otherwise fail "to prevent, so far as is reasonably practicable, danger or unauthorised access".
16. I am therefore clear that the recorder was correct to enquire into the reasonable practicability of the steps which the claimant contended should have been taken to prevent his entry into the substation via the top of the buttress; and, in particular, into the contention that, if the defendant was going to construct – or to leave in place – the buttress and the railings in the positions in which they both stood and if wooden debris was likely from time to time to be lying outside the wall, the height of the wall failed to satisfy the requirements of the regulation because the defendant had failed to apply RACD above the top of the west and north sides of the buttress in circumstances in which it would have been reasonably practicable for it to do so.
17. There is, again, an initial complaint on the part of the defendant, raised in the respondent's notice, about the recorder's approach to the element of foreseeability within the concept of reasonable practicability. I have explained in [13] above that his conclusion was that it was foreseeable by the defendant that the claimant would achieve stage one but not foreseeable that he would achieve stage two. The defendant's contention is that, since it was unforeseeable that he would achieve stage two, it was unforeseeable that he would achieve stage one because it would be pointless for a person to attempt stage one if it was unforeseeable that he could achieve stage two. The contention held some initial attraction for me. But Dr Powers' response to it has persuaded me otherwise: for it is foreseeable that a youth will want to climb railings; at the outset he may well not share the objective view about the unlikelihood of being able to climb higher; and anyway his aspiration might be quite different, for example to collect a ball from the other side of the railings.
18. The appeal therefore turns on whether this court is satisfied that the recorder was wrong to find that (otherwise than with the benefit of hindsight) it was unforeseeable that the claimant would climb from the cross-bar of the railings to the top of the buttress, being a distance of six feet eight inches, and unforeseeable that he would climb the first 18 inches of that distance by use of pieces of wood placed behind and on top of the stanchion and then that he would, somehow, climb the remainder. The recorder's finding is, as Mr Purchas stresses, one of secondary fact and he had the advantage, denied to us, of exposure to oral evidence and of a site visit. Of course there is hyperbole in Mr Purchas' analogy of the wall above the railings – and indeed of the wall above the wedge – with the north face of the Eiger. But in my view the height speaks for itself and precludes our interference with the recorder's finding. As the recorder observed, no amount of security measures will keep out a sufficiently determined trespasser. Thus, for example, no wall, however high, is proof against the trespasser who has brought a ladder of equal height: entry by such means may be foreseeable but it may nevertheless, for other reasons, not be reasonably practicable for the supplier to prevent it. By contrast entry by the means adopted in the present case was, according to the unassailable finding of the recorder, not foreseeable and it was, for that reason, not reasonably practicable for the defendant to take further steps in relation to its wall, even when viewed in the context of its surrounding features, in order to prevent it.
19. I should add that the claimant has a subsidiary ground of appeal. It was but faintly pressed by Mrs Hodgkin in a brief submission which followed that of Dr Powers, just as she but faintly pressed it upon the recorder. The argument is that the regulation requires a fence to be "not less than 2.4 metres high"; that, where there are railings which extend from a fence or wall and upon the cross-bar of which it is foreseeable that a person will climb, the measurement of height required by the regulation is not from the ground but from the cross-bar; that the distance between the cross-bar and the top of the wall was only six feet eight inches (i.e. only 2.03 metres); and that therefore the regulation was breached. With great respect to Mrs Hodgkin, I am clear that the reference in the regulation to the minimum height of the fence is a reference to its height from the ground irrespective of other features of the site which foreseeably make the task of the trespasser in scaling it somewhat less difficult.
20. I would dismiss the appeal.

Mr Justice Henderson:

21. I agree.

Lord Justice Ward:

22. I also agree.