England and Wales Court of Appeal (Civil Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
JOHN LEIGHTON WILLIAMS QC
SITTING AS A DEPUTY HIGH COURT JUDGE
HC06CO1559

		Royal Courts of Justice Strand, London, WC2A 2LL
		29/07/2010

LORD JUSTICE CARNWATH :

1. In the early hours of 18^th April 2003, the claimant, Jonathan Harvey, sustained serious injuries, when he fell down a sheer drop from land owned by the Council ("the land") onto an adjacent car parking area attached to a Tesco's superstore. Following a trial limited to the issue of liability, the judge found the Council liable to the claimant under the Occupiers' Liability Act 1957. The Council appeals. There is no cross-appeal against the judge's finding of 75% contributory negligence against the claimant.

Background

The land and its use

2. I quote the judge's description of the relevant land:

"... the land is rectangular in shape, measures some 80m by 70m and lies in the angle between the junction of Woolwell Road and Woolwell Crescent, which meet at the Woolwell roundabout, Roborough, Plymouth....

The land consists mostly of grass bounded by shrubs and trees on the 3 sides other than that next to Woolwell Road. At its north eastern and south eastern edges the land is held by retaining walls. At the foot of the walls is a large area now occupied by a Tesco Superstore and car park. The land itself is relatively level. The Claimant fell at a point on the south eastern edge close to the north western corner of the land. In that area there is a drop of about 5½ metres from the edge of the land i.e. the top of the retaining wall to the Tesco car park below. Running roughly parallel with the top of the retaining walls but between 1 and 2 metres back from the edge is a chain link fence." (para 2-3)

3. The judge found that the land had been subject to a two-year licence to Tesco's in 1985, taken at the same time as they acquired the land to build their superstore. Tesco's had built the retaining walls, installed the chain link fence, and laid grass on the land and kept it cut. Although there was no direct evidence as to when and how the licence came to an end, it was assumed that it expired by effluxion of time in 1987, although Tesco's continued to cut the grass until 2005. Although the Council must have been aware through its legal department of its ownership, its parks department, which would have been responsible for maintenance, did not become aware of its interest until after the accident. It was accepted at trial that the Council were the "occupiers" for the purposes of the 1957 Act.
4. The judge found, on the basis wholly of evidence called by the claimant, that the land had been used for informal recreation for many years before the accident. There was no contrary evidence on the Council's side. The judge referred as typical to the evidence of Felicity Hore, aged 17 at the time of trial. She had said:

"... that she had always lived in the area and that she and her friends regularly met there, that her group comprising five to six girls and boys 'play-fighted' there, that she had seen larger groups of teenagers there and she had herself been there in a group of nine or ten. She said... that children used to make dens within the shrubs and trees. She had also seen teenagers drink alcohol there and had seen older couples there at night."

5. The judge also referred to the report of a private investigator, who in April 2008 had inspected the area from which the claimant had fallen:

"He recorded signs of continuing activities in the area, noting the remains of a bonfire, signs of smoking, drinking and sexual activity having taken place there and trampled vegetation beyond the fence i.e. on the Tesco side of the fence. He concluded that the usage was regular because of the changes he saw on the occasions he inspected." (para 8-9)

6. Although, as Mr Faulks pointed out, Miss Hore would have been only 11 at the time of the accident, and some of the other evidence was relatively recent, there was plenty of evidence overall to justify the judge's view that the pattern of use had not changed materially over the years.

The accident

7. As I have said, the accident occurred in the early hours of the 18th April 2003. The claimant, Jonathan Harvey, who was aged 21 at the time, fell about 5½ metres from the Council's land onto the Tesco's car parking area. He suffered serious injuries, including damage to his brain stem, which has left him with poor co-ordination affecting both movement and speech.
8. The direct evidence of what he was doing on the land, and how the accident happened, was limited. He himself had no relevant recollection. The only other witness who gave evidence was his friend Christopher Lowrie. His account was broadly accepted by the judge. In short, they and two other friends, Mark and Tim, had been drinking fairly heavily at various bars. They had then taken a taxi to Mr Lowrie's home in Woolwell, intending to buy a meal in Tesco's on the way. The four of them had pooled money for the fare, but as they approached the Woolwell roundabout it became apparent from the taximeter that the pool would not be enough. Christopher thought that Mark had paid less than his fair share earlier in the evening. He suggested that he and Jonathan should get the taxi to stop near the roundabout and run off, leaving Mark to pay.
9. After the taxi stopped, the two friends ran across the land towards the bushes on the Tesco's boundary. Christopher noticed that Mark had also left the taxi, and was running on his right. He did not see Tim leave the taxi. As Jonathan was running through the bushes, he tripped over a chain link fence, at a point where it had been pushed down to about 14 inches from the ground. As to what followed I quote the judge:

"The Claimant would have been running directly towards the fence. Given my finding that the fence had been lowered at that point to about 14 inches above ground level, in my judgement it would have been difficult for someone running into the gap in the dark to see it and it seems to me inevitable that the Claimant would have tripped or fallen over it. I conclude that that is what, on probabilities, happened. Inevitably the Claimant would have landed wholly or partly on the 1.5 metre width of grass and shrubbery leading to the edge of the retaining wall. On the ground he would not easily see the drop because of the growth, which in parts overhangs the retaining wall. I do not find it surprising therefore that either under his own momentum or on getting up and moving forward he could have gone over the edge." (para 36)

10. Neither Mark nor Tim gave evidence. So we do not know how they, or indeed the taxi-driver, viewed the matter. Mr Faulks, for the Council, toyed with a submission that their conduct was "illegal". However, that suggestion had not been pursued at trial. The judge concluded "with some hesitation" that "what happened was the result of youthful high spirits and not born of any dishonest intent" (para 17). I am not persuaded that we can or should go behind that finding.
11. The judge's findings on liability were expressed as follows:

"I have already concluded that when the Claimant left the taxi and went upon the land he did so in youthful high spirits and not with dishonest intent. His conduct was in the same category as that of many other youths who will have gone on to the land and entered the bushes out of high spirits. I do not accept Miss Brown's submission that the Claimant was a trespasser. Such conduct, although not the detail of it, could and should in my judgment have been foreseen by the Defendants. But other than by fencing off the land they could not have prevented such conduct. They could, however, have taken steps to ensure that when on the land the Claimant was protected from risk of serious injury where the provision of such protection was within their power and control. They should have operated a system of inspection and maintenance of the fence to ensure their visitors were not at risk to falling over the edge. That risk was present because the fence was down opposite the gap and because the lowered fence constituted an unacceptable tripping hazard so close to the edge.

The Claimant did not know the area well. Mr Lowrie did. I feel sure that when Mr Lowrie ran on to the land and into the bushes to hide he did not feel that he was a trespasser. He was running across and to an area where he had played, unrestrained as a child. The Claimant ran with him as his companion. Both were running on open land. I am satisfied, having heard both Mr Lowrie and the Claimant that neither thought nor could have thought, in the circumstances, that he was trespassing." (para 57-8)

12. He concluded:

"I am therefore satisfied that in the circumstances of this case the Claimant was the Defendants' visitor in law and that the Defendants were in breach of their common duty of care towards him by not securely fencing the edge and by allowing the fence to be in such condition that it constituted a tripping hazard for the unwary so close to the edge." (para 61)

13. Not surprisingly, he found that the claimant must share a substantial part of the blame for his own misfortune. Dealing with contributory negligence, he said:

"Had the Claimant been sober I am satisfied he would not have run regardless into a dark area but would have made his way carefully. As Ms Brown pointed out, in behaving as he did he ran a real risk of tripping over the undergrowth or some object underfoot or running into something. Importantly, I consider that sober he would have been far more aware of his surroundings than he was and I think it very likely, although I cannot be sure, that he would have realised that there was a fence still standing next to the lowered area and that the lit area beyond was significantly below the land and would have done his best to keep clear of the edge. It is impossible to imagine anyone appreciating the risk posed by the dangerous drop running towards it as he did." (para 63)

The law

14. The Occupiers' Liability Act 1957 establishes the "common duty of care" which is owed by an occupier of land to his "visitors". It replaced the corresponding common law rules as to the nature of the duty, but not as to the persons to whom the duty was owed. Accordingly, section 1(2) provides:,

"... for the purpose of the rules so enacted the persons who are to be treated as an occupier and as his visitors are the same....as the persons who would at common law be treated as an occupier and as his invitees or licensees."

15. The extent of the duty is defined by section 2, which (so far as relevant) provides:

"(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, so that (for example) in proper cases—

(a) an occupier must be prepared for children to be less careful than adults; and

(b) ...

(4) ...

(5) The common duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted as his by the visitor (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another)."

16. The principal issue in this case is whether the claimant was an "implied licensee" (there being no suggestion that he was an "invitee" or had express licence to be there). Mr Faulks seeks to argue that, even if he was a licensee, the Council was not in breach of its duty to him, or in any event its breach did not cause the accident. Although as will become apparent it will be unnecessary to rule on those points, I find the submission surprising. On the facts of this case, it seems hard to avoid the view that the Council owed some duty to protect its licensees against the risk of a 5 metre fall; that the existence of "a tripping hazard for the unwary", rather than a properly maintained fence above the Tesco's retaining wall, was a breach of that duty; and that the breach was at least partly causative of the accident. I should say also that I agree with the judge that the Council gets no help from section 2(5). As he put it:

"...it cannot be said on the facts of this case that the Claimant willingly accepted as his the risk of going over the edge, in the absence of proof that he knew of the presence of the lowered fence and the drop beyond." (para 65)

17. Turning to the principal issue, it is not in dispute that an owner of land may confer an implied licence by conduct. Immediately before the enactment of the 1957 Act, the leading case on this issue was Edwards v. Railway Executive [1952] AC 737. That concerned a boy injured on a railway line. He had been warned not to go onto the land. It was held that he was not a licensee. As Lord Goddard said:

"... repeated trespass of itself confers no licence... how is it to be said that (an occupier) has licensed what he cannot prevent...

Now, to find a licence there must be evidence either of express permission or that the landowner has so conducted himself that he cannot be heard to say that he did not give it.... What then have they done in this case to lead anyone to suppose that they may go on to their property to play ?" (p 746-7)

The present case by contrast is not about land set apart for the operational purposes of a statutory undertaker, but about an area of open land adjoining a road in a relatively built-up area, with nothing to suggest that its use is restricted. The words of Lord Oaksey seem more relevant:

"In my opinion, in considering the question whether a licence can be inferred, the state of mind of the suggested licensee must be considered. The circumstances must be such that the suggested licensee could have thought and did think that he was not trespassing but was on the property in question by the leave and licence of its owner." (p 748)

18. On the evidence, regular users of the land, such as Miss Hore or her predecessors, had every reason to think they were there with the licence of the owners, whoever they were. Accordingly the Council's more extreme position - in effect that it owed no occupiers' duty to anyone - was in my view unrealistic. It may have diverted attention from the much more important issue, that is whether the implied licence for general recreational activity extended to the particular activities which led to the accident in this case.
19. That this is a relevant issue was established long before the 1957 Act. In Hillen v ICI (Alkali) Limited [1936] AC 65, it was held that stevedores, who were lawfully on a barge for the purpose of discharging it, nevertheless became trespassers when they went on to an inadequately supported hatch cover to unload some of the cargo, since they knew that they ought not to use the covered hatch for this purpose. This knowledge meant that the hatch area was in effect "out of bounds" for that purpose, and that they were to that extent "trespassers", unable to rely on duties owed to invitees or licensees (see per Lord Atkin, pp 69-70). Lord Atkin cited the well-known remark of Scrutton LJ in The Calgarth [1927] P 93,110:

"... when you invite a person into your house to use the staircase, you do not invite him to slide down the banisters."

20. It seems clear that this distinction survives under the 1957 Act. It forms part of the common law rules governing who is to be treated as a licensee, and is therefore preserved by section 1(2). In Tomlinson v Congleton Borough Council [2004] 1 AC 46, Lord Hoffmann referred with approval to this aspect of Hillen v ICI(Alkali), including the comments of both Lord Atkin and Scrutton LJ. In that case, the claimant dived into a lake in a disused quarry at a country park. There were displayed prominent notices reading "Dangerous Water: No Swimming", but, despite the warnings, it was used quite regularly by visitors for swimming. Because the claimant was forbidden from swimming, the case was approached on the basis that, notwithstanding his initial entry into the park as a visitor, he should be regarded as a trespasser when swimming, and therefore subject if anything to the lesser duty applying under Occupiers' Liability Act 1984 (not relied on in the present case).
21. It is true that in that case the restriction of the duty resulted from an express prohibition on the activity in question. But Lord Hoffmann's citation of Scrutton LJ shows that that a similar restriction may also be implied. He saw the rationale for the distinction in the principle that those who come on to land without invitation or permission "should not ordinarily be able to force duties upon unwilling hosts":

"In the application of that principle, I can see no difference between a person who comes upon my land without permission and one who, having come with permission, does something which he has not been given permission to do. In both cases, the entrant would be imposing upon a landowner a duty of care which he has not expressly or impliedly accepted. The 1984 Act provides that even in such cases a duty may exist, based simply upon occupation of land and knowledge or foresight that unauthorised persons may come upon the land or authorised persons may use it for unauthorised purposes. That duty is rarer and different in quality from the duty which arises from express or implied invitation or permission to come upon the land and use it." (para 13)

22. Apart from the specific provision in section 1(2), there might be some doubt as to how this common law rule relates to the limitations in the scope of the "common duty" as defined by section 2. The duty is to make the premises reasonably safe for use "for the purposes for which (the visitor) is invited or permitted by the occupier to be there". That appears to imply that a person may remain a "visitor" within the meaning of the Act even when he is using the premises for a purpose going beyond the scope of his licence. Thus, arguably in Scrutton LJ's example, a visitor who chooses to slide down the banister would be outside the protection of the Act, not because he has ceased to be a "visitor", but because the occupier has no duty under the 1957 Act to make the premises safe for that unauthorised activity. Either way, it is clear that the duty under the 1957 Act does not extend beyond the scope of the activities for which the licence has been expressly or impliedly given.

The present case

23. Mr Faulks submits that, even if there was some form of licence for general recreational use, it did not extend to the activity of the claimant. In the words of his skeleton:

"... there would be a distinction between someone walking their dog on the land, and someone in the Claimant's position running wildly (under the influence of alcohol), to escape their lawful obligation to ensure that the taxi fare was paid, in a direction towards the Tesco's supermarket and adjoining land. He did so at night and was no doubt (on the Judge's own findings) reckless for his own safety."

For the reasons already given, I doubt if the implication that the claimant was involved in any form of "unlawful" activity is open on the findings of the judge, and it is not critical to the point.

24. Although this issue was before the judge, he made no reference to the Hillen itself, and he mentioned Tomlinson only as an example of a recent case where liability had been denied. However, Mr Killalea, for the claimant, seeks to meet the argument head on, by reference to the judge's findings. Again I quote his skeleton:

"It will be submitted that the difficulty with seeking to distinguish the Claimant's position from everyone else's lies in the learned Judge's specific finding, having heard the evidence in the witness box of both the Claimant and Mr Lowrie, that the Claimant "neither thought nor could have thought, in the circumstances, that he was trespassing" (Judgment, paragraph 58). The Claimant is to be distinguished from the stevedores in Hillen and Pettigrew v I.C.I. (Alkali), Limited (1936) AC 65 at 69 who knew it was "not the right thing to do to load off hatch covers... it is wrongfully dangerous, and should not be done" and from the impudent banister-slider conceived by Scrutton LJ in The Calgarth (1927) P 93,110."

25. Given the circumstances and the mental state of the claimant and his friend, I am not convinced that what they thought about their legal status is a useful guide, to what is on any view a somewhat artificial concept. Even the (presumably) sober stevedores in Hillen had probably not realised that their disobedience to orders about using the hatchcover for unloading made them trespassers in the eye of the law.
26. The key to the judge's findings, in my view, comes in the previous paragraph (quoted above) where he says of the claimant:

"His conduct was in the same category as that of many other youths who will have gone on to the land and entered the bushes out of high spirits.... Such conduct, although not the detail of it, could and should in my judgment have been foreseen by the Defendants."

27. I have some difficulty, with respect, in understanding what precisely he meant by "such conduct (but not) the detail of it". It was clear from the evidence that various types of night-time activity had been seen on the land. But most of these carried no obvious risk of accident. The judge seems to have been thinking of some form of vigorous late night horse-play in the bushes, in which not all the participants would be sober. Yet, even if that might have been foreseen, foreseeability was not the relevant test. In deciding whether the claimant was a licensee, the question was, not whether his activity or similar activities might have been foreseen, but whether they had been impliedly assented to by the Council. In my view there was no evidence to support such a finding. When a council licenses the public to use its land for recreational purposes, it is consenting to normal recreational activities, carrying normal risks. An implied licence for general recreational activity cannot, in my view, be stretched to cover any form of activity, however reckless.
28. For these reasons, I cannot accept the judge's conclusion that at the time of the accident the claimant was a "visitor" for the purposes of the 1957 Act. On this short point, the appeal must in my view succeed. I reach this conclusion with considerable sympathy for the claimant, whose life has been blighted by a tragic accident. Since, however, the Council's implied licence did not extend to what he was doing, its failure to appreciate its responsibilities for this land is not enough to found liability under the 1957 Act.
29. Accordingly, I would allow the appeal and set aside the judge's order on liability.

LORD JUSTICE HUGHES :

30. I agree.

LORD JUSTICE LONGMORE :

31. I also agree.