Die
Jovis, 25° Julii 1957
Parliamentary Archives,
HL/PO/JU/4/3/1041
Viscount
Simonds
Lord
Reid
Lord
Cohen
Lord
Keith of
Avonholm
Lord
Somervell
of Harrow
HOUSE
OF LORDS
A. C. BILLINGS AND SONS LIMITED
v.
RIDEN
25th
July, 1957.
Viscount
Simonds
MY LORDS,
In this case I have had an
opportunity of reading the Opinion of my noble
and learned friend,
Lord Reid, and as I concur in it I do not think it necessary
to
add any words of my own.
I
shall move that this appeal be dismissed with costs.
Lord
Reid
MY LORDS,
The Respondent sues the
Appellants, a firm of contractors, for damages
for injuries
sustained by her through falling into an unfenced sunk area
when
she was leaving No. 25 Cambray, Cheltenham, at about 10 p.m. on
17th
November, 1953. This house is part of a terrace set back some 30
feet
from the street. Prior to 16th November the access to the
front door had
been a long sloping ramp with a railing on each
side. The original
access had been a level path leading to 4 or 5
steps up to the front door,
but, many years before, an occupier of
the house who used a wheeled
chair had had the path and steps
covered by the ramp. In 1953 the house
was used as a government
office and caretakers, Mr. and Mrs. Privett, lived
on the top
floor. The Respondent had been visiting Mrs. Privett before
her
accident.
It had been decided by the
Office of Works to restore the original form
of access and remove
the ramp and the Appellants were employed as con-
tractors to do
this. They started work on 16th November and by the afternoon
of
the 17th they had removed the part of the ramp nearest the street
and
had laid down a foundation of rough stones for the new level path
:
they had also covered the small lawn belonging to No. 25 with
materials
and tools. It was, therefore, impracticable to approach
the front door over
any part of the ground belonging to No. 25.
Looking from the street
towards the house the lawn was on the
right and the boundary with No. 26
was immediately to the left of
the ramp. The boundary railings had been
removed during the last
war and a row of shrubs ran along most of the
boundary. The only
practicable approach to the front door of No. 25
from the street
was to go up the forecourt of No. 26 on the other side of
the
shrubs and then to pass between the last shrub and the front wall of
the
houses over some muddy ground and to step up two or three feet
from it
on to the ramp near the front door of No. 25. In taking
this route it
was necessary to go within a very few feet of the
small sunk area of No. 26
which was unfenced and at the same time
to brush past the branches of
the last shrub. This route had been
made possible by the Appellants
having removed the railings at the
sides of the ramp. They had replaced
the railings by a wooden
board on the right side of the ramp but had left
open the left
side of the ramp nearest to No. 26.
When the Appellants' workmen
ceased work about 4.30 on 17th November
they did nothing to
provide a safe or convenient access to No. 25. The
defence at the
trial was that an access had been provided by means of a
plank
walk but this was denied by the Respondent and her witnesses and
the
defence witnesses were not believed by Hallett, J., the trial judge.
At
about 3 p.m. on the day of the Respondent's accident Mrs.
Privett came
out of her house by this route between the shrub and
the sunk area and
over the ground of No. 26 and asked the workmen
: " How are we going
2
" to get in and out? ",
and she says that they told her " we can always go "
on
the No. 26 side, and that that side was the best way in.
Apparently
one of the workmen also went upstairs to see Mr.
Privett. Admittedly it
was the best way in, in the circumstances,
and I cannot regard this as
anything else than advice to use the
access by the ground of No. 26.
Hallett, J. so interpreted Mrs.
Privett's evidence. He said: " Then she says
" further
that ... she herself was advised by the First Defendants' workmen
"
that that was the best way to go "; and earlier in the judgment
he had
referred to "Mrs. Privett's allegation that she had
been advised to use
" the way she did use ", and said
that he accepted her evidence without
hesitation.
Some time after Mrs. Privett
returned, her brother Mr. Brown, who is a
builder, came with his
wife to visit her. He found that the ramp had gone
and when he was
looking for an alternative access Mrs. Privett called to
him and
advised him to go by the route which she had taken herself.
Mr.
Brown found that the ground near the bush was muddy and brought
over
a plank which he put down to enable his wife to cross.
About 7 p.m. the Respondent and
her daughter were walking along the
street. Mrs. Privett saw them
and invited the Respondent to come in, again
advising her to go by
the same route. The Respondent made the journey
without much
difficulty. About 10 p.m. she left. Mrs. Privett's son offered
to
accompany her but she thought that unnecessary. She took no
precautions
such as getting a torch, and after waiting a moment on
emerging from
the house to accustom her eyes to the darkness she
stepped down off the
ramp on to the plank. She had no recollection
of what happened then but
she fell into the sunk area and
sustained considerable injuries.
The main controversy in the
case has been over the nature and extent
of the duty owed by the
Appellants to the Respondent. The Appellants
maintain that their
duty was no higher than that of a licensor to a licensee
and in
particular that their duty ceased once a visitor had become aware
of
all the facts constituting the danger. They contend that their
only duty
was to give adequate warning to a person who was unaware
of those facts.
Admittedly they did not warn the Respondent but,
as the Respondent knew
all the facts when she left the house, they
say that giving a warning to her
was unnecessary. Hallett, J.
assumed rather than decided that, because the
Respondent was a
licensee vis-à-vis the occupiers, her rights against
the
Appellants were only the rights of a licensee in a question
with an occupier.
In this I think he was wrong; but it may well be
that this point was not
fully argued, or not argued at all, before
him. On all other matters in the
case his judgment was full and
detailed and I see no reason to disagree with
it on any of these
other points. It may well be that this matter was over-
looked
because in addition to the Appellants the Respondent sued
the
occupiers and against them, of course, her rights were limited
to the rights
of a licensee.
It is not alleged that the
Appellants were authorised by the occupiers
to prevent safe
access to the house at times when their men were not working,
and
it is plain that the nature of their work did not require this
because
the defence which they sought to establish at the trial
was that they had
in fact provided a safe access by means of a
plank walk. The only
reasonable justification I know of for the
rights of a licensee being limited
as they are is that a licensee
generally gives no consideration for the rights
which the occupier
has given him and must not be allowed to look a gift
horse in the
mouth. That cannot apply to the Appellants, who gave no
concession
to the Respondent. I need not pause to consider what the
position
would be if an occupier authorised a contractor to prevent
safe
access for a licensee. In the present case I see no reason
why the contractor
who chooses to prevent safe recess by visitors
should be entitled to rely on
any speciality in the law of
licensor and licensee.
In my opinion the Appellants
were under a duty to all persons who might
be expected lawfully
to visit the house, and that duty was the ordinary
duty to take
such care as in all the circumstances of the case was reasonable
to
ensure that visitors were not exposed to danger by their actions. It
was
argued that, even so, that duty was adequately discharged in
all cases by
3
giving warning of the danger
and that, if a visitor in full knowledge of the
danger chose to
incur it, she did so at her own risk and the contractor
cannot be
held liable. I do not agree. There may be many cases in which
warning
is an adequate discharge of the duty. There may be another safe
and
reasonably convenient access only a short distance away or the
situation
may be such that with knowledge of the danger the
visitor can easily and
safely avoid it. But there are other cases
where that is not so. Let me take
the example of a doctor called
to an urgent case in a house the only access
to which has
unnecessarily been made dangerous by a contractor. It cannot
be
right that he should be entitled to say to the doctor: " Now I
have
" shewn you the danger and if you choose to go on you do
so at your own
" risk."
I do not think that there is
anything new in what I have just said. The
principle was at least
adumbrated a century ago in Clayards v. Dethick
(1848) 12
Q.B.R. 439. A cab proprietor had stables in a mews from which
the
only road to the street was a long narrow passage. The
Commissioners
of Sewers employed the Defendants to open a trench
along the passage and
gave notice to the occupiers of stables in
the mews that the trench would
be open for a day or two and that
they must put up with it: the notice
advised them to get other
stables. The part of the passage not excavated
was obstructed by
earth and gravel thrown out from the trench. The cab
proprietor
safely led out one of his horses but the next fell into the
trench
owing to the earth and gravel giving way. The danger was
obvious and
there was evidence that a warning had been given, but
the case was left
to a jury and the cab proprietor succeeded. Lord
Denman, C.J., in the
first place left it to the jury to say
whether the Defendants had been guilty
of negligence and then
observed " that it could not be the Plaintiff's duty
"
to refrain altogether from coming out of the mews merely because
the
" Defendants had made the passage in some degree
dangerous: that the
" Defendants were not entitled to keep
the occupiers of the mews in a state
" of siege till the
passage was declared safe, first creating a nuisance and then
"
excusing themselves by giving notice that there was some danger
though,
" if the Plaintiff had persisted in running upon a
great and obvious danger,
" his action could not be
maintained."
On a rule nisi Patteson, J.
said: " The Defendants had clearly no right
" to leave a
trench open in the passage to this mews without a proper fence,
"
and, having done so, to tell the Plaintiff: ' You shall keep your
horse in the
"' stable till we inform you that you may remove
him.' But whether or not
" the Plaintiff contributed to the
mischief that happened by want of ordinary
" caution is a
question of degree. If the danger was so great that no sensible
"
man would have incurred it, the verdict must be for the Defendants .
. .
" The whole question was, whether the danger was so
obvious that the Plaintiff
" could not with common prudence
make the attempt." Coleridge, J. said:
" The question
is, not only whether the Defendants did an improper act, but
"
also whether the injury to the Plaintiff may legally be deemed the
con-
" sequence of it ... The Plaintiff was not bound to
abstain from pursuing
" his livelihood because there was some
danger. It was necessary for the
" Defendants to shew a clear
danger and a precise warning." Wightman, J.
said: " If
it had appeared that the Plaintiff in defiance of warning would
"
persevere in the attempt to pass, I cannot suppose that the jury
would have
" found a verdict in his favour." Lord
Denman, C.J. added: " I certainly
" told the jury that
the Plaintiff was not bound to keep his horse back unless
"
the danger was imminent."
As I read these judgments Lord
Denman, C.J. and Patteson, J. did not
think that a warning would
exculpate the Defendant if the danger was not so
great or
immediate that, on its being pointed out, no sensible man would
have
incurred it. The judgments of Coleridge, J. and Wightman, J.
can be read
as indicating an opinion that warning would be
sufficient but Coleridge, J.
at least adds the qualification that
the danger must be clear and the warning
precise. Neither says
expressly that, if the danger was only such that a
reasonable man.
though warned, would still go on, still a warning would be
sufficient
to exclude any liability on the Defendant.
4
In Thompson v. London
& North Eastern Railway 2 B & S 106, Cockburn,
C.J.
stated his understanding of the decision in Clayards' case in
these terms
(p. 114): " Clayards v. Dethick is a
direct authority that where danger has
" been created by the
wrongful or negligent act of another, if a man, in the
"
performance of a lawful act, voluntarily exposes himself to that
danger, he
" is not precluded from recovering for injury
resulting from it, unless the
" circumstances are such that
the jury are of opinion that the exposing
" himself to that
danger was a want of common or ordinary prudence on his
"
part. Now that issue was not proposed by the defendants [in
Thompson's
" case] to be put to the jury. They stood
upon the fact that the knowledge
" of the state of the basin
by the pilot was the knowledge of the plaintiffs, and
" was
in point of law an answer to their claim. But that is not so,
unless
" the circumstances were such that the attempt to
navigate the ship under
" them was an act which no man of
ordinary prudence would have
" committed." Blackburn, J.
said: "On this point I perfectly concur with
" what has
been said by the Lord Chief Justice and my brother Hill; the
"
point is, in fact, decided by Clayards v. Dethick. It
might have been a
" question to be left to the jury, whether
the pilot, with the knowledge which
" he possessed, was
guilty of such want of reasonable care, in attempting to
"
take the ship out, as that no prudent man would have so acted. But no
such
" issue was raised by the defendants." In the
Exchequer Chamber Counsel
for the Appellants only sought to
distinguish Clayards' case on the ground
that there the
acts of the Defendants were wilful acts. Plaintiffs' Counsel
was
not called upon and the judgment of the Queen's Bench was
unanimously
affirmed without comment on this matter.
The conclusion to be drawn from
these cases appears to me to be that
there is no magic in giving
a warning. If the Plaintiff knew the danger, either
because he was
warned or from his own knowledge and observation, the
question is
whether the danger was such that in the circumstances no sensible
man
would have incurred it or, in other words, whether the Plaintiff's
exposing
himself to the danger was a want of common or ordinary
prudence on his
part. If it was not, then the fact that he
voluntarily or knowingly incurred the
danger does not entitle the
Defendant to escape from liability.
The only cases brought to our
notice which are inconsistent with what I
have said are Malone
v. Laskey [1907] 2 KB 141 and Ball v. London
County
Council [1949] 2 K.B. 159. In Malone's case a
contractor had put up a water
tank insecurely and it fell on the
caretaker's wife and injured her. Heaven
v. Pender 11
Q.B.D. 503 was cited but not Clayards v. Dethick. The
case so
far as relating to negligence was decided against the
Plaintiff on the simple
but, in my view, erroneous ground that, as
the contractor was not the occupier
and there was no contractual
relationship between him and the Plaintiff, he
owed no duty of
care to her. In Ball's case Malone was followed as
being
binding on the Court of Appeal and it is to be noted that
there were other
grounds which might also have been fatal to the
Plaintiff's case.
The whole matter was considered
by the Second Division of the Court of
Session in Mooney v.
Lanarkshire County Council 1954 S.C. 245. The tenant
entered
into occupation of a local authority's house before the making of
the
front path had been completed. A visitor to the tenant coming
in
at night tripped over a metal obstruction protruding from the path
and
was injured. She was held entitled to damages from the local
authority, who
were completing the path and had left the
obstruction unprotected and
,unlighted. She was not their licensee
because they were no longer the
occupiers of the path. Malone's
case was not followed. The Lord Justice
Clerk (Lord Thomson)
said (p. 251): "As the defenders, on this hypothesis,
"
did not have possession and control in the accepted sense, it seems
to me
" to be inappropriate to try to equiparate their
position to that of an owner
" or occupier having such
possession and control. I refuse to countenance the
" idea
that contractors employed to carry out a job on somebody else's
"
premises are entitled to say that their liability to a person injured
is to be
" measured in terms of the relationship between the
person injured and their
" employer." Lord
Patrick said (p. 265): " If two parties are invited
" and I use the word in no
technical sense—to resort to premises for different
5
" purposes, and if it
would be obvious to a reasonable man that the authorised
"
operations of the one may endanger the other in his permitted
activities
" unless they are conducted with reasonable care,
a duty is owed by the one
" to the other to take such
reasonable care ... To such situations the limited
" duty
owed by a person in control and possession of heritage to licensees
"
whom he permits to come on his premises has no application. In my
"
opinion, the only decision which is consonant with the law of
reparation,
" as developed, is that a party invited to do
work on a pathway on private
" ground, which pathway forms
the access to the house from the public street,
" and which
he must know will be used by day and by night by the tenant
"
and his invitees and licensees, owes a duty to all these persons to
do his
" work with reasonable care so that their passage may
not be rendered
" perilous. If he erects a dangerous
obstruction in the way, it must be made
" apparent, so that
they, using due care for their own safety, may avoid the
"
danger." In that case warning or lighting would have been
sufficient to
enable visitors to have access to the house without
danger and the Court did
not have to consider a case like the
present where the obstruction was such
that safe access had been
totally prevented. In my judgment Malone's case
ought to be
overruled in so far as it dealt with negligence.
I will at this point deal with
two matters which have been referred to hi
argument but which
received little attention at the trial. In the first place
there
was a back door of the house No. 25 Cambray and if that had
been
shewn to be a reasonably practicable alternative access it
would have been
open to the Appellants now to say that the
Respondent should have gone out
that way and so avoided the danger
of the route she took. But we
know nothing about the back door
except that it was locked at 5 p.m.; we
do not know who locked it
or who kept the key or whether the Privetts were
allowed to use it
after 5 p.m. No doubt this point was missed at the trial
because
the only defence then was that a safe access had been provided to
the
front door. Hallett, J. says: " I think it would have
been quite unreasonable
" to have expected these various
people to have used it on this occasion."
And, " She
could have asked for the back door to have been opened, although
"
I think it was hardly negligent of her not to." In my opinion we
must now
disregard entirely the back door and take it that, when
the Respondent was
invited to come in, her only alternatives were
to come in as she did or to go
away ; and that, when she had come
in, her only alternatives were to go out by
the route she took or
to stay the night where she was. The second
matter is the plank
laid down by Mr. Brown. The Respondent's evidence
suggests that
she may have slipped off the plank either because it was
slippery
or because it moved. But no such case was made at the trial.
Hallett,
J. asked Mr. Brown whether it would not have been safer if the
plank
had not been there. Mr. Brown said he did not think so and
the
matter was left there. I am therefore of opinion that we must take
the
case on the footing that in so far as the danger of the route
caused the
Respondent's accident, that danger was the same as it
was when the
Appellants' workmen were there in the afternoon.
I think that the first question
to ask is whether the Respondent acted
reasonably in accepting
Mrs. Privett's invitation and taking her advice to
go the way she
did. That must depend on whether the knowledge of the
route which
she then had ought to have made it clear to her that she would
incur
a degree of risk which a reasonable person in her position would
not
have incurred—in other words, whether a reasonable
person with her know-
ledge would have declined the invitation and
gone home. There was no
urgency about her visit, she only happened
to be passing when she was
invited to come in. The reason why I
first consider whether she acted
reasonably in going in is that if
she was unreasonable in going in she cannot
found on there being
some urgency to get out again so as to entitle her
then to incur
some greater degree of risk. I agree with Hallett, J. that
the
question is not whether she realised the danger but whether the
facts
which she knew would have caused a reasonable person in her
position
to realise the danger. But in considering what a
reasonable person would
realise or would do in a particular
situation we must have regard to human
nature as we know it, and,
if one thinks that in a particular situation the
6
great majority of people would
have behaved in one way, it would not be
right to say that a
reasonable man would or should have behaved in a
different way. A
reasonable man does not mean a paragon of circumspection.
The Respondent was a very
frequent visitor to No. 25. She knew the
sunk area of No. 26 well
and knew that it was unfenced—she said so
in evidence. She
must also have had at least a general idea of the rest of
the
route she proposed to take, but people differ very much in the
degree
to which they observe and remember things they pass every
day. When
describing her inward journey she said: " I could
not get through the bushes
" until I came up to the last bush
... I saw I could get up through the
" last bush, and I got
up through there ", which rather suggests that she did
not
have a clear picture of the route until she traversed it. Hallett, J.
says
that " the whole of the facts which constituted the
danger were perfectly well
" known to her when she was coming
out." \ agree, but I do not think
that they were when
she decided to go in. It was unnecessary on his view
of the law
for him to consider what she knew before she went in and I do
not
read his finding as covering this. Indeed, I do not think that the
evidence
would support such a finding about her knowledge at that
stage.
In my judgment it was not
unreasonable for her to accept Mrs. Privett's
invitation and
follow her directions. She would think, and rightly, that
Mrs.
Privett knew much more about the route than she did. It is true
that
the Respondent was 71 years of age but she seems to have
found no great
difficulty in getting up a step from the ground to
the top of the ramp which
other witnesses say was two or three
feet high. I think it would have been
unreasonable for her to
attempt this unknown journey in the dark without
Mrs. Privett's
invitation and direction and if the Appellants could disclaim
all
responsibility for Mrs. Privett's direction to the Respondent then it
would
be another question. But they cannot do that. Hallett, J.
found that their
workmen advised the use of the route in question,
and I can find no ground
for supposing that that advice was
confined to Mrs. Privett personally. They
must have known that
others might wish to come in and ought to have
realised that this
advice would be passed on to them. Certainly they gave
no warning
that no one else should go that way. If they had given a
warning
instead of an encouragement to Mrs. Privett, we do not
know what would
have happened. Perhaps she would have insisted
that they should lay a
plank walk over the rubble path.
The next question is whether,
if she acted reasonably in going in, the
fuller knowledge of the
route which she gained on the inward journey made
it unreasonable
for her to try to go out the same way. Now there was some
urgency
about making the return journey for otherwise she would not get
home.
Here it is relevant to consider the attitude of the other people
in
the house when she left, Mrs. Privett, her son, and Mr. and
Mrs. Brown.
They all knew the route. Mrs. Privett's son offered to
accompany the
Respondent but she said she could manage. It did not
occur to any of
them that she should not go or that she should not
go alone. I find it
very difficult to assume that they were all
unreasonable people in letting
her go alone, and I think that only
a minute proportion of ordinary people,
put in the Respondent's
shoes and faced with the choice of staying the night
or taking the
route she did, would have chosen to stay the night. But I
think
that most people would have been more careful than she was. She
would
certainly have been wiser to take the son's offer, and I agree
with
the finding that there was contributory negligence on her
part in not taking
enough care when she left the house, but I
cannot find that in seeking to
return by this route she acted
unreasonably or so negligently as to lead
to the conclusion that
her accident was caused entirely by her own fault.
It is sometimes said that when
a visitor goes on knowing the risk the
test is whether he was
free to choose or acted under some constraint. My
difficulty about
that test is that freedom is a word which has come to have
very
different meanings for different people. If this test leads to the
same
answer as the question whether in all the circumstances the
visitor acted
reasonably, well and good. But if not. I think that,
in cases like the
7
present, reasonableness is the
better test and is more in accordance with
principle. The
Defendant is bound to take reasonable care but be is
entitled to
expect that a visitor will behave in a reasonable manner. I
leave
aside cases where children are concerned.
In my view the accident was
caused partly by the danger of the route
and partly by the
Respondent's own negligence. But the Appellants argue
that they
cannot be held responsible for the danger of the route because
they
had no right to remove that danger or even to enter the
grounds of No. 26
where the danger lay. It is true that they could
not remove that danger:
their fault lay in making it necessary for
visitors to use that route. Their
duty was to take reasonable care
for the safety of visitors. They interfered
with the existing safe
access as they had a right to do. But in my opinion
their duty to
visitors required them to mitigate the result of their
interference
in so far as in all the circumstances it was
reasonable that they should do
so, and I think that their own
defence in this case shows that it would
have been reasonable when
they left off work to lay down a plank walk
over the rough rubble
path. But even if I am wrong in that, I think that
they were still
at fault. I leave aside the point that they made this route
possible
by removing the railing at the top of the ramp because that point
was
not dealt with at the trial and some explanation might have
emerged
if it had been. But they should have given warning against
use of this route
instead of advising its use, and, if they had
done so, it is by no means
improbable that matters would have
developed in such a way that the
Respondent would never have taken
this route. I am therefore of opinion
that, in so far as the
danger of the route contributed to cause the accident,
the
Appellants are liable to the Respondent. I see no reason to
disagree
with the decision of the majority of the Court of Appeal
that the Appellants
and the Respondent were equally to blame, and
I am therefore of opinion
that this appeal should be dismissed
with costs to the Respondent.
Lord Cohen
MY LORDS,
I have had the opportunity of
reading in print the speeches, one of which
has been delivered by
my noble and learned friend Lord Reid and the
other of which is
about to be delivered by my noble and learned friend
Lord
Somervell. I agree so fully with the reasons they give for
thinking
that the appeal should be dismissed that I can state
quite shortly my
reasons for arriving at the same conclusion.
I need not recapitulate the
facts. They have been fully stated by Denning,
L.J. in the Court
of Appeal and by my noble and learned friend Lord Reid.
So far as the law applicable to
those facts is concerned Mr. Fox-Andrews
did not dispute the
principle which was stated by Denning, L.J. as follows: —
"
a contractor doing work on premises is under a duty to use
reasonable
" care to prevent damage to persons whom he may
reasonably expect to be
" affected by his work." Nor did
Mr. Fox-Andrews deny that the Respondent
was such a person. But he
argued that: —
the dangerous condition
which caused the accident to the
Respondent existed
not on the premises on which the Appellants had
been working but
on the adjoining premises and had not been created
by the
Appellants. Moreover, the Appellants had no control over
the
adjoining premises. Accordingly the Appellants were not
responsible
for any damage arising from this dangerous condition;
the duty resting on the
contractor was confined to a duty to
warn against any danger
they had created—and, therefore;
though it is admitted that the
Appellants gave no warning, as the
Respondent knew all the
relevant facts, the breach of duty cannot
be said to have caused
the accident.
8
My Lords, the short answer to
the first of these submissions is, in my
opinion, that the
evidence does not lay the necessary foundation of fact
for it. The
learned judge described the state of the ground when the
Appellants'
workmen ceased work on the day of the accident and said
that there
existed theoretically four means of approach to the front door
of
No. 25 Cambray Place, the premises on which the contractors
were
working. Three of them were situate entirely on these
premises and the
learned judge found that none of them was
practicable. The fourth started
over the forecourt of the
adjoining premises, No. 26 Cambray Place, but
ultimately crossed
on to the ramp approach of No. 25 close to the top of
the ramp.
This undoubtedly involved passing close to the unfenced basement
area
of No. 26 and it is true that the Appellants had no legal right
either
to fence it or place warning lamps around it. But this is,
in my opinion,
irrelevant. In the first place, had not the
Appellants pulled down the
fence which was on the same side of the
ramp as No. 26 before they com-
menced work and put nothing in its
place, this means of approach would never
have existed at all. In
these circumstances I do not think the Appellants can
be heard to
say that they did not create the danger which caused the accident
to
the Respondent. I would add that the evidence of the Respondent
read
in the light of the plan which was before your Lordships
indicates that
she commenced to fall while still on the premises
of No. 25, and though
the consequences of her fall might have been
far less serious had there
been no basement area in No. 26, the
fall seems to have been caused by
the state of affairs created by
the Appellants on the premises of No. 25.
Turning to the second of Mr.
Fox-Andrews' submissions, I do not think
that it is true to say
that in all cases the only duty imposed on contractors
is a duty
to warn. Mr. Fox-Andrews relied on a series of cases where it
was
held that the liability of an occupier to his licensee was confined
to
a duty to warn, but I agree with Denning, L.J. that the
principle of these
cases is not applicable when the relationship
between the parties is not that
of licensor and licensee but the
claim is one for breach of a duty of care.
In such a case I think
the measure of liability is correctly stated by
Denning, L.J.
where he says: "The Defendants are liable, not because
"
they are occupiers, but because they created a dangerous state of
things
" and they are under a duty to use reasonable care to
prevent damage
" from it. ... (They might in some
circumstances fulfil their duty of
" care to visitors by
putting up a warning in clear terms ' Danger. Keep
" ' Out':
for that might suffice to prevent damage to them. The occupants
"
of the house might then have grounds of complaint for blocking
their
" access, but the visitors would not.) But if the
contractors do provide an
" alternative route, on or off No.
25, or adopt an alternative route, or
" point one out, as
they did here, or it is an obvious deviation for a visitor
"
to take, they are under a duty to use reasonable care to prevent
damage
" to visitors who take that route. A contractor who
creates a dangerous
" state of things cannot escape the
consequences by leading people into
" another danger."
Denning, L.J. also said: "
It is true that they are under no duty to visitors
" to
provide an alternative route for getting to the front door." My
Lords,
I incline to think that this statement is too widely
expressed. Take the
hypothetical case suggested in the course of
the argument by one of your
Lordships of a doctor called in to a
patient seriously ill. If the contractor
knew that the house
contained a patient seriously ill, I doubt whether he
would fulfil
his duty merely by warning the doctor of the danger the
contractor
had created. It might well be that he must create an
alternative
route. Even on the facts of the present case I doubt
whether the contractor
could have discharged his duty without
putting an obstruction in the place
of the railing he had removed
similar to that which he erected on the
opposite side of the ramp
to prevent a fall into the basement area of No. 25.
It is not,
however, necessary to decide this point, since even if a warning
was
enough, no warning was in fact given.
This brings me to the third
submission based on the Respondent's alleged
knowledge of all
material facts. On this point I agree with Denning, L.J.
that
knowledge of a plaintiff of the danger can only excuse the defendant
9
where the tribunal, which is
the judge of fact, finds on proper evidence
that the injury
suffered by the plaintiff can be said to be due solely to
his own
fault. Before the passing of the Contributory Negligence Act of
1945
mere contributory negligence of the plaintiff would have afforded
a
defence to the defendant, but under the present law, as Denning,
L.J. said
in Slater v. Clay Cross Co. (1956) 3
W.L.R. at p. 236, it is not a bar
to the action but only a ground
for reducing the damages.
It was argued that the learned
judge had found as a fact that the accident
was due solely to the
fault of the Respondent. It is true that in one passage
he said: "
The whole of the facts which constituted the danger were perfectly
"
well known to her when she was coming out", but in the
penultimate
paragraph of his judgment he said that " she
herself contributed very largely
" indeed to her accident".
The second passage seems to me to come nearer
to representing the
effect of the evidence which was before the Court. I agree
with
Denning, L.J. that the Respondent did not fully appreciate the
danger
of the " fourth route ". She admitted that she
was a frequent visitor to
No. 25, that she had seen the area of
No. 26, and that she knew there
was no fencing around it, but on
the occasion of her previous visits the
two premises were
separated by a railing, and I see no reason to suppose
that she
had ever directed her mind to the question of the distance
between
the basement area of No. 26 and the bushes between the two
properties.
Indeed, she herself said she did not know how far the
plank from which
she fell was from that basement area. The trial
judge relied upon the
knowledge he attributed to her as the result
of her entrance to the house
by the fourth route. But she entered
after it was dark, and I see no
reason to suppose her entry
enlarged her knowledge. Indeed, the fact that
she had got in
safely by that route would, I should have thought, have
made her
more inclined to think she could safely use the fourth
route
especially bearing in mind that the Appellants' servants had
recommended
this route to the occupier of No. 25 and she had
passed this advice on to
the Respondent. On the question of the
measure of the contributory negli-
gence of the Respondent I
cannot usefully add anything to what was said by
my noble and
learned friend Lord Reid.
For these reasons I agree with
the majority of the Court of Appeal that
the accident cannot be
attributed solely to the Respondent's conduct and
that the
conduct only affords a reason for reducing the damages.
I would dismiss the appeal.
Lord Keith of Avonholm
MY LORDS,
I do not see this case so
clearly as some of your Lordships. To begin with,
the facts of the
case and particularly the nature of the approach on to the ramp
at
or near the front door of No. 25 are not so clearly brought out in
the
evidence as to make me fully confident that we can draw the
correct inference
as to how the Plaintiff met with her accident. I
should have liked to know
more about the terrain between the
boundary of Nos. 25 and 26 and the side
of the ramp of which at
least one half from the door of No. 25 towards the
street
extending to some 27 feet was still in being at the time of the
accident.
It is quite impossible, in my opinion, to accept the
evidence of the Plaintiff,
a woman 71 years of age, that she
stepped up 3 feet to get on to the ramp.
Three feet is a climb not
a step. Having said so much, however, I think it is
a fair
inference to draw from the evidence that on leaving No. 25 the
Plaintiff
fell as she stepped off the side of the ramp on to the
plank that had been
placed below the ramp by Mr. Brown and that
the accident started at least
on the property of No. 25, though
how the Plaintiff covered the 6 to 8 feet or
so intervening
between the place of her fall and the area of No. 26 remains
one
of the unexplained features of this case.
Turning now to what are matters
of law, I agree that the contractors had a
duty to protect
members of the public or occupants of No. 25, seeking to
10
enter or leave the house, from
harm as a result of their operations. The extent
of that duty
must, in my opinion, depend, however, on what a reasonable
man
might contemplate as likely to happen on the property of No. 25
from
the state in which it was left. I emphasise the words "
on the property " for
I am quite unable to accept the view
that if the accident had begun and ended
on the property of No.
26, the contractors would have been liable. I say so
for various
reasons. In the first place, the Plaintiff knew as much, indeed
more,
about No. 26 than did the contractors or their men. The men had
been
working at No. 25 only two days before the accident happened.
The Plaintiff
had been a frequent visitor at No. 25—two or
three times a week, she says,
for a period of about one year. She
knew all about the layout of No. 26 and
its unprotected basement
area. But that is not the chief point. Technically the
Plaintiff
was a trespasser on No. 26. The trespass was insignificant
and
certainly excusable. But I cannot see how the contractors'
men, assuming
they advised or encouraged the trespass, are in any
different position from the
Plaintiff. If a person encourages a
trespass and another person accepts the
encouragement, both being
aware of the position, and the actual trespasser is
injured by
some danger on the land trespassed on, known to both, there is
no
principle I know of which would attach liability to the instigator
or
encourager in a question with the trespasser. Deception of, or
ignorance of,
or inadvertence of, the 'trespasser might raise
difficult questions in certain
circumstances or certain dangers,
but nothing of that sort is present in this
case. So viewing the
matter, I find myself unable to agree with a passage in
the
judgment of Denning, L.J., as he then was, where he says:
" But if the contractors
do provide an alternative route, on or off
" No. 25, or
adopt an alternative route, or point one out, as they did
"
here, or it is an obvious deviation for a visitor to take, they are
under
" a duty to use reasonable care to prevent damage to
visitors who take
" that route. A contractor who creates a
dangerous state of things cannot
" escape the consequences by
leading people into another danger."
No case was cited and I know of
none where a contractor has been held
liable for a danger not of
his own creation and existing on adjacent property
with which he
had nothing to do and with which he had no right to interfere.
I
could go no further than to say that if, in circumstances like the
present,
a contractor does not provide a reasonably safe approach
to the house, he may
be liable to a person seeking to enter or
leave the house who takes the risk
of passing over or on the
danger left by the contractor and sustains injury
thereby. No case
was cited and I know of none that would carry the
contractor's
liability further than this and, in my opinion, the ratio of none
of
the cases cited can be stretched to cover a peril on adjacent land
for which
the contractor was in no way responsible.
I think, however, it is
possible to hold that as a result of operations
conducted by the
contractors here, the Plaintiff was precipitated from the
property
of No. 25 into the danger on the adjacent property of No. 26 owing
to
the dangerous condition of the access to the door of No. 25 created
by the
contractors, and it is not, I think, a relevant factor that
the Plaintiff was
intending to trespass on adjacent property. What
is material is that the
evidence shows that persons were using
this route or approach to No. 25,
that the contractors' men knew
that Mrs. Privett, the caretaker's wife, was
using this route and
should have contemplated that other persons might use
the same
route. The contractors had removed the railings alongside the
ramp
and so made this route possible and they had provided no safe
alternative
route. I think, therefore, they were liable for the
accident that happened.
I
would dismiss the appeal.
Lord
Somervell of Harrow
MY LORDS,
I agree with the majority of
the Court of Appeal that a person executing
works on premises, as
were the first defendants in this case, is under a
general duty to
use reasonable care for the safety of those whom he knows
11
or ought reasonably to know may
be affected by or lawfully in the vicinity
of his work. Some of
the phrases in the above statement are taken from
the judgment of
Denning, L.J., in this case and some from that of Scrutton,
L.J.,
in Kimber v. Gas Light & Coke Co. [1918] 1 K.B. 439, 447.
I also
agree with Scrutton, L.J., that this is laid down plainly
in Corby v. Hill
4 C.B. (N.S.) 556, 567. More
recently the principle was applied in Haseldine
v.Daw
[1941]2K.B.343.
I also agree with Denning,
L.J., that Malone v. Laskey [1907] 2 KB 141
was
wrongly decided in so far as it held that the repairers of a
water
tank owed no duty to the plaintiff to take reasonable care
to prevent danger
because there was no contract between them and
the plaintiff, the plaintiff
being a resident on the premises. If
and in so far as Ball v. London County
Council [1949] 2
K.B. was based on the decision in Malone v. Laskey it
cannot
be regarded as an authority.
The duty being a general duty
to use reasonable care, reasonableness is
the test of the steps
to be taken. In the present case the learned Judge
held that the
Defendants were not under a duty in law (my italics) to
provide
an alternative means of access. Denning, L.J., said that
the Defendants
were under no duty to provide an alternative route.
With respect, I think
this is the wrong approach. Their duty is to
do what is reasonable. There
may well be cases where it is
reasonable to leave the normal route dangerous
and to provide a
safe alternative. There may be other cases where it is
reasonable
to make the old route safe by planks or covering or fencing off
of
holes or other appropriate steps. There may be other cases where it
is
reasonable to make entrance from the front impossible and make
everyone
go round to the back door. I am only stressing the fact
that reasonableness
is the test.
Here the learned trial Judge
thought the Defendants ought to have done
that which they said
they had done, namely, have left a plank walk fenced
with ropes
and stakes. He held, however, they were under no duty
in law so to
do. As it was their case that this had been done, it would
seem
reasonable to hold that it would have been a reasonable step
to have taken
knowing that there would probably be visitors. I
agree with the majority of
the Court of Appeal that the Defendants
were negligent in leaving the
premises as they did and in "
advising" the route which led round the
laurel bush without
either fencing or putting lights by the open area of No. 26.
The fact that this route was
indicated by the Defendants' servants seems
to me to remove the
suggested difficulty as to the danger being on neigh-
bouring
land. If the Defendants felt unable to put up lights or protection
on
the land of No. 26, that would be a reason for making a safe route
on
No. 25 or taking reasonable steps to ensure that everyone used
the back door.
Did the Defendants' negligence
cause the accident? Their negligence
caused the use of the No. 26
route by the Plaintiff. That route was described
by the learned
Judge as follows: —
" The fourth and the only
other route was to advance by the fore-
" court "—that
is of No. 26—" until you were almost in the basement. .
.
" You then round the laurel bush in the small space in
between dipping
" or bobbing down or having your face hit by
the branches, and then
" climbing up on to the ramp which you
would meet not quite at its
" top but a few paces down from
its top, where, as far as I can tell
" from the evidence the
height would be about three feet."
If, as I have held, the taking
of this route was the consequence of the
Defendants' negligence,
prima facie a fall into the unfenced basement in the
dark
would be a consequence of that negligence. But it is said the
Plaintiff
knew of the danger. Before the Contributory Negligence
Act, 1945, a plaintiff
guilty of contributory negligence could not
recover, although the damage
was in part due to the negligence of
the defendant. The plaintiff's know-
ledge of a danger was
relevant to the question whether he had been
guilty of negligence
which contributed to the accident. There is often, as
there was in
Clayard v. Dethick [1848] 12 Q.B.R. 439, a further
question as
to whether, although knowing of the danger, he acted
reasonably, in all
12
the circumstances, in taking
the risk which he did take. If so, he was
not negligent although
there was an accident. Since the Contributory
Negligence Act the
question is whether, having regard to his knowledge
and the other
circumstances, the Plaintiff was negligent and, if so, was
his
negligence the sole cause of the accident or only a
contributory cause. The
Appellants relied on the finding by the
learned Judge that the Plaintiff at
all material times knew that
the basement was unfenced and the physical
facts of the general
layout. It would, of course, have been absurd to suggest
that she
knew at any rate before her first journey up the route what was
the
exact proximity of the basement when she was pushing round the
laurel
bush in the manner described by the learned Judge. Nor was
it put to
her in cross-examination that she had any such precise
knowledge after
reaching the house. The learned Judge has found
that there was no appre-
ciable light from the street lamps and
she may well have thought the
distance greater than it was. When
she left she did not want to trouble
anyone to assist her. This
may have been negligent. There may have
been negligence in the
actual way she tried to make her way round the
bush. For my own
part the contribution of her own negligence to the accident
certainly
did not exceed the fifty per cent, attributed to her.
Denning, L.J., in his judgment,
cited and applied a statement of his own
in Slater v. Clay
Cross [1956] 3 W.L.R. at page 236: "knowledge of the
"
danger is only a bar where the party is free to act on it so that the
injury can
" be said to be due solely to his own fault . . .
Where knowledge of the
" danger is not such as to render the
accident solely the fault of the injured
" party, then it is
not a bar to the action but only a ground for reducing the
"
damages."
I think the words " free
to act" in the context may be ambiguous.
The Plaintiff was "
free " to stay the night in No. 25 but the learned Lord
Justice
did not mean that her freedom to do this meant that the accident
was
due solely to her own fault. There may be many cases where a
plaintiff
is " free " in one sense to avoid the risk
altogether but where it would be
reasonable to run the risk. When
the plaintiff has full or partial knowledge
of the danger the
question must always be: Was the injury, in all the
circumstances,
including the plaintiff's knowledge, due solely to his own
negligence
or was it due solely to the negligence of the defendant or was it
due
to the negligence of each?
For the above reasons, which
are substantially those given by Denning.
L.J., I would dismiss
the appeal.
(30353)
Wt. 8062-147 35 8/57 D.L./PA/19
