Higgs v WH Foster (t/a Avalon Coaches) [2004] EWCA Civ 843

Case No B3/2003/2302[2004] EWCA Civ 843
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BATH COUNTY COURT
Mr Recorder Adams
Venue Royal Courts of JusticeDate Thursday 01 st July 2004
Strand,
London, WC2A 2LL
Before
LORD JUSTICE LATHAMLORD JUSTICE MAURICE KAY
Between
HIGGSAppellantWH FOSTER TRADING AS AVALON COACHESRespondent
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Christopher Wilson-Smith QC & Nicholas Sproull (instructed by Russell, Jones & Walker) for AppellantAdrian Palmer, QC (instructed by Beachcroft Wansborough) for Respondent
JudgmentLatham LJ :
[1]The appellant was a serving police officer. In the early hours of the 29th April 1999, he was investigating a suspected stolen trailer which had been parked in the service yard of a supermarket in the centre of Glastonbury. He entered the respondents’ property, which adjoined the service area, in order, eventually, to take up a position overlooking the service yard. In doing so he fell into an uncovered inspection pit and suffered serious knee injuries as a result of which he was unable to continue working as a police officer. His claim for damages against the respondent was dismissed by Mr Recorder Adam on the 13th October 2003. He appeals against that judgment.[2]The respondents’ property was an open area of land on which he kept his coaches. The road frontage of the property was protected by railings. Along one side there were buildings. Along the other side was a wall which went, by reason of a slope in the ground, from one foot high to four feet high and thereafter was protected by the fact that there was a drop of some 50 inches from the surface of the property to the neighbouring land. At the rear that drop was 18 feet to the service yard of the supermarket. The inspection pit was at the rear of the property, that is the area overlooking the supermarket service yard. It was between 27 inches and 33 inches wide and 40 inches deep. The usual practice was for a coach to be parked over that pit. But on the night in question, there was approximately 10 foot uncovered to the rear of the coach. There were two security lights on the wall of the buildings running down one side of the property.[3]The judge found that on the night in question the appellant had climbed into the property at the point where there was the drop of four feet or so. He did so primarily to carry out an observation of a trailer in the service yard. It is accepted that the appellant had also made a search around the coaches in case anyone connected with the suspect vehicle might have been there. Although he had a torch with him, he did not use it, despite the fact that the night was so dark that he was unable to see where he was putting his feet. It was in those circumstances that he fell into the inspection pit, entirely unaware of its presence.[4]The appellants’ claim against the respondent was bought under the Occupiers Liability Act 1957 on the basis that the appellant was a visitor, alternatively under the Occupiers Liability Act 1984 in the event that the Recorder concluded that he was a trespasser. The Recorder found that he was a trespasser, and accordingly considered his claim under the provisions of that Act. The appellant has been refused permission to appeal against that finding. It may be helpful to set out the relevant provisions of that Act in order to understand the decision of the Recorder and the basis of the appeal. “1. (1) The rules enacted by this section shall have effect, in place of the rules of common law, to determine – (a) whether any duty is owed by a person as occupier of premises to persons other than his visitors in respect of any risk of their suffering injury on the premises by reason of any danger due to the state of the premises or to things done or omitted to be done on them; and (b) if so, what that duty is. …….. (3) An occupier of premises owes a duty to another (not being his visitor) in respect of any such risk as is referred to in sub-section (1) above if – (a) he is aware of the danger or has reasonable grounds to believe that it exists; (b) he knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger (in either case, whether the other has lawful authority for being in that vicinity or not); and (c) The risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection. (4) Where, by virtue of this section, an occupier of premises owes a duty to another in respect of such risk, the duty is to take such care as is reasonable that in all the circumstances of the cases to see that he does not suffer injury on the premises by reason of the danger concerned. …….” (a) whether any duty is owed by a person as occupier of premises to persons other than his visitors in respect of any risk of their suffering injury on the premises by reason of any danger due to the state of the premises or to things done or omitted to be done on them; and (b) if so, what that duty is. …….. (3) An occupier of premises owes a duty to another (not being his visitor) in respect of any such risk as is referred to in sub-section (1) above if – (a) he is aware of the danger or has reasonable grounds to believe that it exists; (b) he knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger (in either case, whether the other has lawful authority for being in that vicinity or not); and (c) The risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection. (4) Where, by virtue of this section, an occupier of premises owes a duty to another in respect of such risk, the duty is to take such care as is reasonable that in all the circumstances of the cases to see that he does not suffer injury on the premises by reason of the danger concerned. …….”

The Recorder, having accurately set out these provisions, came to the following conclusions:

“25. The defendant, I find, must have known of the danger created by the uncovered inspection pit. The pit was not fenced off. There were no bollards or warnings and the danger was exacerbated by darkness. The crucial issue in this case is whether the defendant had reason to believe that someone might trespass in the vicinity of the pit at 2 a.m. in April. 26. Mr Sproull submits that, since the yard is in the centre of Glastonbury, in a residential area adjacent to houses and a footpath, that since it was insecure, with steps inviting access, the defendant knew or believed the trespasser might come within the vicinity of the danger. They were more likely to do so after dark. To me that is a leap too far. I heard no evidence of any other trespassers, whether in daylight or after dark. As it was, Mr Higgs’ evidence was that he climbed over a low-ish wall rather than using the inviting steps. 27. Therefore on the evidence available to me, I find that the defendant did not know or have reasonable grounds for believing a trespasser would enter his premises and come into the vicinity of the uncovered pit.”
[6]On behalf of the appellant, Mr Wilson-Smith QC submits that the Recorder came to the wrong conclusion in relation to the applicability of section 1(3)(b). He submits that the respondent either knew or had reasonable grounds to believe that someone such as the appellant might come into the vicinity of the pit. He points to the fact that the property was not secure in the sense that it was easy to obtain access. The coaches represented valuable property which could have been an attraction to thieves or to others. The fact that the respondent had installed security lights suggests that he was aware of the risk of intruders. He submits that the risk of significant injury presented by the pit was one which should have been guarded against and could easily have been guarded against either by ensuring that the coach was parked fully over the pit, or that the pit was provided with some form of simple cover. Accordingly, he submits, the respondent owed a duty to the appellant by reason of the fact that all the requirements of Section 1(3) had been made out, and there was a breach of that duty under Section 1(4) so as to entitle the appellant to damages.[7]Mr Palmer, QC on behalf of the respondent submits that the question under section 1(3)(b) requires the court to assess whether or not the appellant himself would have been a person who could have been in the contemplation of the respondent as a person who may have been in the vicinity of the pit at 2 a.m. that night. He accepts that it may be sufficient to identify a class of persons to whom the respondent might belong, for example nocturnal trespassers, in order to answer that question. But he submits that there was nothing to suggest that the premises were any more attractive to trespassers than any other premises; and there was no evidence to suggest that as a matter of fact trespassers had been attracted to the premises. The fact that the respondent had installed security lights, as do many householders, is not evidence sufficient to justify the conclusion the respondent either knew or should have had the knowledge of the matters required by section 1(3)(b). Installing security lights is essentially a form of deterrence intended to reduce whatever risk there might be of trespassers. Even if the risk of there being trespassers in the premises was one of which the respondent should have been aware, the risk of such trespassers going to the rear of the coaches adjacent to the 18 foot drop to the service yard of the Supermarket was not sufficient to justify the conclusion that he should have had reasonable grounds to believe that such a trespasser might come into the vicinity of the danger, that is the pit.[8]This case raises a somewhat similar question to that which was considered by this court recently in the case of Donoghue –v- Folkestone Properties [2003] EWCA Civ 231; [2003] QB 1008, where the court was concerned with a claim for damages arising from injuries received by the claimant who dived from the slipway into Folkestone Harbour after midnight in mid-winter and struck his head on a grid under the water adjacent to the harbour wall. The court there held, in allowing the defendants’ appeal, that although it may be sufficient for a claimant to show that he was one of a class of trespassers whom the occupier had reason to believe may be in the vicinity of the danger, the existence of the duty had to be determined by reference to the likelihood of the individual claimant’s presence in that vicinity at the actual time and place that gave rise to the danger to him. The court concluded that even though the defendants might have had reasonable grounds to believe that trespassers might dive from that slipway in summer, the question that had to be asked was whether they had reasonable grounds for believing that the claimant would do so on a midwinter night and concluded that they did not.[9]This approach necessarily requires the court to look, therefore, with some care at the particular facts relating to the claimant’s claim. In the present case, as the appellant has not, and could not, allege that the respondent knew that he was in or might come into the vicinity of the pit, he had to establish that the respondent had reasonable grounds to believe that he either was in or might come into the vicinity of the pit. Again the former is not suggested. The second requires the court to consider whether there was any material which could justify the conclusion that someone like the appellant might have gone round to the rear of the coaches into the vicinity of the pit.[10]It seems to me that the only material which could support that contention is the assertion that because the premises could be relatively easily entered by a trespasser, that in itself established reasonable grounds for the respondent to believe that a trespasser might do so. But even if that might support a conclusion that a trespasser might do so, it does not of itself support a conclusion that in so trespassing such a trespasser might go behind the coaches. There is nothing in the nature of an allurement which could attract someone to that area; and there is nothing to suggest that the rear of the coaches would have formed a natural route for a trespasser to take from one place to another. I do not consider that the mere risk that someone might steal the coaches and perhaps go to the rear of the coaches in the course of that activity, could in itself justify the conclusion that the respondent had reasonable grounds for believing that someone like the appellant might have been in the vicinity of the pit. That could only, in my judgement, have been established if there was evidence to show that trespassers had indeed been on to the premises in the past and in doing so had trespassed on the part of the premises which exposed them to the risk of injury from the pit. In my judgment the Recorder was right to dismiss this claim; I would accordingly dismiss the appeal.

Lord Justice Maurice Kay :

[11]I agree. Even if it could be established that there were reasonable grounds to believe that, in view of its location and accessibility, nocturnal trespassers might enter some part of the respondent’s property, the evidence did not disclose reasonable grounds for believing that they might come into the vicinity of the uncovered pit.