England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WIGAN COUNTY COURT
(HIS HONOUR JUDGE HODGE QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		21st December 2011

Dame Janet Smith:

1. This is an appeal against the order made by HHJ Hodge QC in the Wigan County Court on 23 February 2011. The judge awarded the claimant, Mrs Tracy Maynard, the sum of £1,500 as damages for a personal injury she had suffered on 28 August 2006. Despite the very modest sum awarded, Wigan Borough Council, the defendant to the claim, appeals against the award with the permission of Tomlinson LJ.
2. Mrs Maynard and her family lived at 2 Pennine Walk, Platt Bridge, Wigan. Outside the house there was a wide grass verge across which two footpaths ran, leading to the road which served the houses. The Maynard family kept their car on the road. On the day of the accident, Mr and Mrs Maynard and their three children were going out in the car. Mrs Maynard, carrying the youngest child, then aged about four months, set off across the verge. She had not gone far when she fell and twisted her left ankle. She sued the Council, alleging that she had fallen because her foot had gone into a hole in the grass. She alleged that the presence of the hole amounted to a breach of the council's duty of care as occupier of the grass verge.
3. The Council accepted that it was the occupier and owed Mrs Maynard the common duty of care. It accepted that Mrs Maynard had fallen on that day and roughly in the place alleged, but denied any breach of duty and in particular, denied the presence of any hole capable of amounting to a danger.
4. In his judgment, the judge accepted that Mrs Maynard had fallen because she stepped into a hole and, for reasons to which I will come later, held that the council had been in breach of duty in permitting the hole to be there. However, he held that Mrs Maynard had contributed to the accident by her own negligence, which he assessed at 50 per cent. Full verdict damages had been agreed at £3,000 so Mrs Maynard was awarded £1,500. There is no appeal against the finding of contribution.
5. The evidence about the existence and size of the hole was less than satisfactory. There were no contemporaneous or even near contemporaneous measurements or photographs. In her evidence Mrs Maynard had said that her foot had gone into the hole and become stuck in it so that, when she fell, her ankle was twisted and her foot was at an odd angle. In fact, she did not suffer any fracture, but the ankle was badly twisted and sprained. She estimated the depth of the hole as "at least 4.5 inches". Mr Maynard estimated the depth of the hole at 6 inches. Neither ever attempted to measure it.
6. There were several sets of photographs in evidence at the hearing. The first in time were taken by a representative of Mrs Maynard's solicitor in November 2007 and suggest a hole about 4 inches deep. However, it was accepted by Mrs Maynard and more importantly by the judge that it appeared that the ground had been tampered with before these photographs had been taken. The photographer was not called and it seems to have been accepted that they should not be relied on.
7. Two sets of photographs were taken in 2009. A set taken by Mr Maynard showed nothing of assistance to the case. Another set taken by Ms Curran, an employee from the Council's insurance department showed the general scene but did not identify any hole at all. Ms Curran gave evidence that she had been unable to find a hole. Her inspection was carried out soon after the claim had been filed at court, which was almost exactly three years after the accident.
8. The fourth set of photographs was taken by a trainee solicitor from the firm instructed by the claimant. They showed a hole or an indentation in the grass in the position at which the claimant said her accident had occurred. The depth of the hole was measured using two rulers, one held vertically with its lower end in the hole, and the other resting on the grass surrounding the hole and bridging it. From the intersection of the two rulers, it could be seen that the depth of the hole from its base to the level of the grass was just 2 inches.
9. In her evidence, Mrs Maynard accepted that that photograph gave the best visual impression of the appearance of the hole at the time of her accident. However, she did not accept that the actual depth of the hole as measured in 2010 was the same as its depth in 2006. She made the point that, over the years, the hole could well have been partially filled by earth, grass and debris. In other words, her case was that, although the 2010 photographs showed an appearance similar to the appearance in 2006, the underlying realities were quite different. In 2006 the depth of the hole, which she estimated at about 4.5 inches, was concealed by the surrounding grass.
10. Mrs Maynard's evidence was that she had complained about the hole, first to the Council's gardeners, who came to mow the grass. They, she said, had told her she must complain to the Council offices. She said that she had done that on several occasions before her accident and described the employee to whom she had spoken. She said that nothing had been done. The Council disclosed worksheets which showed what work had been done, some if not all of which had resulted from complaints. It was clear that no repair had been effected to this verge. The Council did not disclose its complaints book.
11. The judge began his judgment by setting out the test which he had to apply when determining whether the Council was liable under s.2(2) of the Occupiers' Liability Act 1957. He said that this was:

"...a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor, in this case Mrs Maynard, would be reasonably safe in using the grassed area for the purposes for which she was permitted by the Council to be there."

12. It is accepted that this was a correct exposition of the law. The judge then considered the evidence of Mrs Maynard's complaints and concluded that he should not disbelieve her. At paragraph 14, he added a rider to that conclusion. He said this:

"It is, on the face of it, surprising that someone in the position of Mrs Maynard should have seen fit to complain about an indentation in the grassed area of the kind shown on the photographs taken on 15th July 2010 by the trainee solicitor acting for the Claimants, Mr Clark, as depicted in pages 152 and 146 of the trial bundle where, in accordance with Mrs Maynard's oral evidence, I marked the area of indentation of which complaint was being made. I do find it a little difficult, at first sight, to accept that she should have seen fit to complain about something of that kind. But, nevertheless, on the totality of the evidence, I accept her evidence that she did so complain. There is no evidence that the Council did anything in response to those complaints. I accept that the indentation would not have been apparent as a source of danger to the Council's grass cutting operatives assessing the situation for a different purposes. However, Mrs Maynard had drawn the matter to the Council's attention; and, on the totality of the evidence, the Council have done nothing about it."

13. I have quoted the whole of that paragraph because Mr Simon Vaughan for the appellant relies upon it before this court when he submits that the judge has implicitly made a finding in that paragraph that the state of the hole about which Mrs Maynard complained was the hole as seen in the photographs taken in 2010. I agree that at first reading that is how it sounds, but I do not think that that is what the judge was actually saying. The meaning and purpose of this paragraph is not clear, but I do not think that it amounts to a finding, even an implied finding, that in 2006 the hole was 2 inches deep.
14. The judge then considered the way in which Mr Vaughan was putting the Council's case. Mr Vaughan had stressed that there was no good evidence of the condition of the ground at the time of the fall. There were no measurements of the hole at or near the time. The 2007 photographs were not to be relied on. He submitted that Mrs Maynard herself had been prepared to accept that the state and appearance of the ground had been much more like that shown in the 2010 photographs. So he said there was really no evidence from which the judge could conclude that the area had been foreseeably dangerous at the time of the accident. The claim should therefore fail for want of proof of breach of duty.
15. Mr Vaughan also submitted that the best evidence of the dimensions of the hole were those taken in 2010, so that the judge should conclude that the hole was no more than 2 inches deep. Such a hole, he submitted, would not amount to a hazard on an area of amenity grass. There had been no breach of duty.
16. Mr Vaughan also reminded the judge that, although Mrs Maynard had said in evidence that her foot went into the hole and became stuck in it, that was not the account she had given at the time. She had told the paramedics who had taken her to hospital that she had fallen after stepping on "an uneven surface." I add for the sake of completeness that Mrs Maynard had sought to explain that disparity by saying that she had been in pain when she gave her first account. Later, she had gone back to look at the scene and had satisfied herself that there was indeed a hole.
17. Finally, the judge recorded Mr Vaughan's submission that Mrs Maynard's complaints to the Council were irrelevant if in fact the hole had not been dangerous. All in all, he said, Mrs Maynard had failed to prove a breach of duty.
18. The judge accepted that Mrs Maynard was telling the truth about her complaints. Indeed, he accepted more generally that her evidence and that of her husband was truthful. The nub of the judgment is at paragraph 21, where the judge said this:

"Compellingly though those submissions were presented to the court, I find that I cannot accept them. I have already indicated that Mrs Maynard struck me as a truthful witness, as, indeed, did her husband. I have already accepted that she had complained about the hole. I acknowledged that her perception of it as a potential source of danger is, no more than Ms Curran's view, not binding on the court. But the fact and reality of the matter is that I am satisfied that it was as a result of stepping into this hole that Mrs Maynard suffered her fall. That, to my mind, indicates, whatever the precise dimensions of the hole at the time of the accident, that it was a potential and, in the event, an actual source of danger. Had there been no complaints to the housing office, then it may well be that I would not have found that there was any breach of the occupiers' common duty of care under the 1957 Act. But I have already accepted that complaints were made; and, on the evidence, nothing was done in response to those complaints. As a result, Mrs Maynard suffered a fall. In those circumstances it seems to me that she has made out her case on liability."

Thereafter the judge dealt with contributory negligence, with which this court is not concerned.

19. This morning Mr Vaughan has made a number of criticisms of the judgment and, in particular, of the reasoning in paragraph 21. For my part, I consider that his criticisms have validity. First, he complains that the judge did not make any clear findings about the size, depth, or characteristics of the hole. He appears to have inferred that the hole was dangerous because the claimant fell after stepping in it. That, Mr Vaughan submitted, is not permissible reasoning. The mere fact that the hole was big enough to cause a fall does not mean that it was a danger. People can fall as a result of very slight imperfections in the surface upon which they are walking or even when there are no imperfections at all.
20. For my part, I agree that that line of the judge's reasoning was flawed. The judge's task was to make findings about the nature and size of the hole and then to decide whether in his judgment that hole presented such a foreseeable risk of injury to persons crossing the grass that it was reasonable to expect the Council to have found it and repaired it. It was not open to the judge to infer that the hole must have been dangerous simply because it had given rise to a fall. If that were a permissible test, any fall resulting from even a small imperfection would give rise to primary liability. That is plainly not the law.
21. Mr Vaughan's second complaint was that the judge appears to have inferred that the hole was dangerous because Mrs Maynard had complained about it. For my part, it seems that that is what the judge has done. As Mr Vaughan submitted to the judge, and again to us, the fact that complaints were made does not prove that the ground was foreseeably dangerous. It proves only that Mrs Maynard thought that it was. As the judge had earlier reminded himself, Mrs Maynard's perception of the dangerous nature of the ground was not determinative. What mattered was the judge's own view of the dangerousness of the ground based on the evidence he had accepted.
22. Mr Vaughan submitted that, if we accepted those two main criticisms of the judge's reasoning, his decision could not stand. He urged us not to remit the case for re-hearing but to accept that the best evidence of the state of the ground and the hole was that shown in the 2010 photographs. We were in as good a position as the judge to decide whether there had been a breach of duty. The hole was no more than 2 inches deep. Although a hole of that depth in a pavement or footpath might well amount to a breach of the common duty of care, such a hole in a grassed area could not. The law only requires the occupier to do what is reasonable in all the circumstances. The law requires the interests of the user of the land to be balanced against what it is reasonable to expect the occupier to do. It would be wholly unreasonable to expect local authorities to inspect all their verges for holes of as little as 2 inches depth and to make them good. Pedestrians were not to expect grass verges to be kept like bowling greens. That was the substance of Mr Vaughan's submission.
23. In the course of argument, Mr Vaughan was asked what the position would be if the judge had said that, although he could not make precise findings about the dimensions of the hole in 2006, he was satisfied that the hole had been deep enough for the claimant's foot to get stuck in it and therefore it must have been of such a depth as to be dangerous. Mr Vaughan accepted that, if such findings had been made, his appeal would be difficult. However, he submitted that the judge had not made any such finding. Such a finding of fact should not be inferred. Although the judge had found Mrs Maynard to be an honest witness, he had not said that her evidence was reliable in all respects or that he accepted all of it. Indeed, he had made observations which suggested that he found some aspects of it surprising. If he had intended to accept the totality of her evidence, he should have said so. He also submitted that the judgment was defective, as the findings and reasoning had been inadequate – see English v Emery Reimbold & Strick [2002] 1WLR 2409.
24. Mr David Calvert for Mr Maynard did not address the criticisms which Mr Vaughan had made about paragraph 21 of the judgment. I think he recognised the force of those criticisms and, in my view, he was right to do so. He also had to admit that the judge had not made an express finding that the claimant's foot had been stuck in the hole and that the hole must therefore have been so deep as to be dangerous. However, he submitted that that was the effect of the judge's findings. He stressed that Mrs Maynard had never accepted that in 2006 the hole had the dimensions as measured in 2010. She had been at pains to point out that it could well have changed in the meantime and her evidence was that, at the time of the fall, the hole had been at least 4.5 inches deep. By accepting Mrs Maynard as a truthful witness, the judge had in fact been accepting that the hole had been deep enough for her to get her foot stuck in it, and that meant that it had been dangerous. In effect, he had accepted the claimant's estimate of its depth as the best she could do, but had not made precise findings as to the dimensions because he had only an estimate available.
25. It must be borne in mind that this was an extempore judgment and that judges are often under pressure of work to give judgment without much opportunity to reflect on how best to explain their reasoning. It does seem to me that this judgment is open to the criticisms which Mr Vaughan has made. First, the findings of fact are not as clearly set out as one would wish. We know only that the judge found Mrs Maynard to be a truthful witness. He does not say whether he also accepts that her recollection is accurate as to detail. He does not say that he accepts her estimate of the depth of the hole as even fairly accurate. Indeed in paragraph 14 he expressed some surprise that she should have complained about a hole that looked like the hole shown in the 2010 photograph. He did not add, as he might well have done if he had wished to show his acceptance of her estimate of the depth of the hole, that the appearance of the hole on the surface was not what mattered, but its underlying depth. Nor does the judge expressly state that he accepts that Mrs Maynard's foot became stuck in the hole.
26. Second, the judge's reasoning in paragraph 21 is in my view open to the criticisms made by Mr Vaughan. It was not permissible for him to find that the hole was dangerous because Mrs Maynard fell after stepping into it; nor was it permissible for him to infer that the hole was dangerous because Mrs Maynard had complained about it. If that was the basis of the judge's decision, I would accept Mr Vaughan's submission that the judge's reasoning was flawed and cannot stand.
27. However, it seems to me that, on a close reading of the judgment, the real basis of the decision can be discerned, although I accept it is not as clear or so clearly expressed as I would wish. The judge referred in paragraph 18 to Mrs Maynard's evidence that her foot had become stuck in the hole. He did not expressly either accept or reject it. In paragraph 21 he spoke of her "stepping into the hole". He seems in those words to accept that there was a hole into which Mrs Maynard did step. That of itself indicates that the irregularity in the ground was big enough to be described as a hole and one into which an adult could step.
28. It is perhaps unfortunate that he went on to refrain expressly from deciding what its dimensions were, but it seems to me that if, having held that Mrs Maynard was an honest witness, and having accepted her evidence as reliable, at least as regards the making of complaints, he was proceeding on the basis that he had rejected her evidence that her foot got stuck in the hole, he must have said so. In practice, that was the best evidence, if reliable, as to the size and nature of the irregularity on the ground. I wish that the judge had said in terms that he either accepted or rejected that evidence. If he had rejected it, he would have needed to give reasons for doing so. If he had accepted it, that would have been explained by his finding already made that she was an honest witness and the fact that he had found her evidence to be reliable in other respects already, so it would not have been necessary to give further reasons for accepting her evidence.
29. For those reasons, I think that when one reads the judgment as a whole, it is tolerably clear that the judge did in fact accept the detail of Mrs Maynard's account of how the accident happened. Thus I think that, although he did not say so expressly, he meant to find that the hole was sufficiently deep for the claimant's foot to get stuck in it. That was a finding of fact which was plainly open to him and I think it is the only fact which is consistent with his observations about Mrs Maynard's truthfulness. If the hole was deep enough to have that effect, it must have been considerably more than 2 inches deep and it would be reasonable to infer from the precise way in which the accident happened that the hole must have been foreseeably dangerous.
30. Very sensibly, Mr Vaughan did not suggest that a hole which was deep enough to trap a foot was not dangerous. The danger may have been a hidden one, but the Council had been warned about it, and in my view they could reasonably have been expected to rectify the problem.
31. In my view, on the basis of the findings which I think the judge intended to make but did not express, there was indeed a breach of duty.
32. In my judgment, although the judgment is open to criticism as regards the clarity of the reasoning, the holding that the Council was in breach of the common duty of care can and should be supported by a process of reasoning which it seems to me does in fact underlie it. It follows that I would dismiss this appeal.

Lord Justice Lloyd:

33. I agree. I am more familiar with judgments of HHJ Hodge QC in Chancery and other related areas, in which it is rare indeed to find that he is less than full, clear and specific in his reasoning. It therefore seems to me to be uncharacteristic that in the present case, his judgment does suffer from the deficiencies that my Lady has identified and that Mr Vaughan understandably and cogently focussed on in his submissions.
34. I note that at one point the case was on the fast track, but it was thought at a certain stage that it could not be dealt with in one day, so it was relisted for a day-and-a-half and allocated to the multi-track, whereas the judge evidently did deal with it within a single day, the timing of which is described in his judgment. Accordingly he may well not have had the time to think about the expression of his judgment that would otherwise have been available. Nevertheless, while accepting the cogency of Mr Vaughan's criticisms of his expression of his reasoning, I agree with my Lady that the true reasoning for the decision is that the judge did implicitly, although unfortunately not explicitly, proceed on the basis that Mrs Maynard's evidence of her foot sinking into the hole and getting stuck in the hole was truthful and accurate and it therefore showed the hole to be of a size which made it, even if hidden, a dangerous feature of this ground. On that basis, I agree that the case of breach of duty of care is made out and the appeal should be dismissed.

Order: Appeal dismissed