Maloney v Torfaen County Borough Council [2005] EWCA Civ 1762

Case No B3/2005/0013[2005] EWCA Civ 1762
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
Venue ON APPEAL FROM CARDIFF COUNTY COURT
(HIS HONOUR JUDGE DENYER QC)
Venue Royal Courts of JusticeDate Tuesday, 6th December 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE BROOKE
(Vice President of the Court of Appeal, Civil Division)
LORD JUSTICE LAWS
LORD JUSTICE MAURICE KAY
Between
MALONEYAppellant-v-
Between
TORFAEN COUNTY BOROUGH COUNCILRespondent
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR M JARMAN QC AND MR P BROOKS (instructed by Jacklyn Dawson) appeared for AppellantMISS C BROWN (instructed by Dolmans) appeared for Respondents
J U D G M E N T

LORD JUSTICE LAWS:

[1]This is an appeal with permission granted on some grounds only by Latham LJ on 11th April 2005 against a decision of His Honour Judge Denyer QC given in the Cardiff County Court on 10th December 2004 when he dismissed the appellant's claim for damages for personal injuries. The judge was trying the issue of liability only. As the judge noted at the outset of his judgment, the injuries that the appellant suffered in consequence of the accident which happened involved significant brain damage and it was "highly improbable" that he would ever work again. The appellant was born on 19th May 1965. The respondents to the appeal are the Torfaen County Borough Council.[2]The accident happened some time close to midnight on the night of 29th/30th January 1999. It happened very close to the appellant's flat at Number 1 Drayton Court in Cwmbran. In the course of taking a shortcut from the Blenheim Road to the entrance to his flat, the appellant slipped and fell from a sloping grass bank onto the concrete floor of a pedestrian subway which was immediately adjacent to the bank. He was found lying there about a metre from the entrance to the subway proper shortly after midnight on 30th January 1999 by a lady called Deborah Soaper. The respondents are owners and occupiers of the bank.[3]Looking at what is perhaps the clearest of the photographs before us at page 278 of the bundle, the block of flats where the appellant lived is immediately there to the left of the grass bank which is itself a few feet wide. Then immediately to its right is a retaining wall which forms one side of the subway. At that point there is a drop of several foot to the subway floor. There is no fence or anything of the kind along this edge of the drop.[4]At trial the appellant remembered nothing of the accident and there was no eyewitness of it, but there was indirect evidence as to what must have happened. 29th January was a Saturday night. The appellant had been out drinking with his nephew at the Marlborough pub on the Blenheim Road. The Blenheim Road crosses over the underpass.

The judge said this at page 2 of his judgment:

"It is a legitimate inference that the claimant left the pub, walked along Blenheim Road and at some stage prior to the underpass and prior to the junction with Greenmeadow, he crossed to the other side of Blenheim Road and then moved from Blenheim Road onto the grassed area intending to go to his flat."
So it was that in taking this shortcut to the flat, the appellant somehow slipped or stumbled over the unfenced retaining wall and fell onto the floor of the subway.[5]There are some other matters of fact which I should recount. First, the appellant was drunk at the time of the accident.

The judge said at page 19:

"The claimant called his nephew, Daniel Joy, to suggest that they had not gone out until the middle part of the evening and that by the time that Daniel had left prior to 10.30, the claimant had drunk, at best, three or four pints. As I say, I take this evidence with a pinch of salt. Further, and in any event, although he left prior to 10.30, the claimant did not. There is reference in the police statement, albeit of a significant hearsay nature, to the effect that the claimant had to be carried out of the pub at closing time at about 11.20. The person who found him in the underpass formed the view that he was very drunk. The contemporaneous medical records give a similar impression. I take the view, therefore, that his ability to perceive danger was significantly impaired by the amount that he had had to drink. It is not negligent to get drunk. The negligence resides with the fact that if you take on board considerable amounts of alcohol, it affects your ability to perceive dangers which would be blindingly obvious when sober."
[6]On that basis, and having regard to other matters, the judge held at page 19 that if he had found the respondents liable, he would have attributed two thirds contributory negligence to the appellant. In his grounds of appeal, the appellant sought to challenge that holding but the single Lord Justice declined to grant permission to appeal in respect of that ground. In my respectful view he was plainly right to do so. The judge's view of the appellant's state of drunkenness and his contingent view of the degree of contributory negligence which follows from it are not capable of sensible challenge here.[7]It is to be noted, also as a preliminary matter, that there was fencing along the wall on the edge of the subway on its other side. We have seen photographs which demonstrate that. Thirdly, there had been two previous accidents upon which the appellant placed some reliance and upon which Mr Jarman QC, on his behalf, places reliance in this court. The first was in 1977. All we know of it is contained in a memorandum from the borough engineer dated 11th August 1977 which was quoted by the judge:
"An accident has occurred in which a man fell over the parapet of the subway at the junction of Blenheim Road and Greenmeadow Way, Cwmbran. It occurs to me that when future adoptions are considered, the greatest care should be taken to ensure that neither the parapet of the subway itself or the retaining walls leading down to the subway should be accepted as adoptable unless a suitable guard preventing the public from falling over is provided. Would you please, as a matter of urgency, investigate the present cases that are being considered for adoption and ensure that in all cases where we adopt subways, that such guards are provided."
The reference to adoption is a reference, as I understand it, to the statutory responsibility of a highways authority under the highways legislation. The reference to the parapet seems to show that the person who suffered the accident in 1977 fell off what may be called the bridge going over the subway and not one of the banks on either side. The learned

judge made this comment:

"The memo refers to an accident. It is not clear where or when precisely the accident happened. It is not clear what the response to the memo was or why the suggestions therein were not pursued. Bearing in mind that in fact the subways were not fenced at that time and that, so far as we know, no further accident happened until over 20 years later, I am not persuaded that the memo assists the claimant when we come on to the defendants' state of knowledge in relation to the activities of this claimant on the night of the accident and their liability for that accident."
I may break off there.[8]The other accident was, as the judge indicated, over 20 years later. This was, unhappily, a fatal accident and it occurred not very many weeks before the appellant's accident. The inquest into the death was held on 17th December 1998. It is convenient at this stage to recount the judge's description of what had happened and the conclusions he drew from it (at page 16):
"According to the evidence at the inquest, the deceased who died on 16th October was, on the evening of 11th October, walking on Greenmeadow Way when a car had come towards him. There were no streetlights so he stepped onto the grass verge and then on what he thought was a path. In fact, he fell straight over the top of the Blenheim Road underpass, falling several feet. I note that the ambulance personnel said that the deceased had said to them that he had slipped down the grass embankment then fallen down the side wall of the underpass. The first thing to note is that the incident involved the embankment on the Greenmeadow Lane side, not the embankment with which we are concerned which is of course the opposite embankment. It is clear from the plans and photographs that there is no pavement or footpath in Greenmeadow Lane along the side of the road from which Mr Palin fell. That no doubt explains why he was walking on the grass. Whether walking on the grass adjacent to the road was a usual happening, I know not. Even assuming that this accident, of which the defendants were only aware at the end of 1998, should have alerted them to the possibility that a pedestrian on Greenmeadow might stray across several feet of flat grass and then slip down the sloping patch of grass into the underpass, it does not follow that they should have then been alerted to any danger in respect of the opposite embankment. Further, it seems to be to be a counsel of perfection to say that even if they should have been responding to that incident, bearing in mind the Christmas and New Year intervention, they should have done so by the end of January 1999. Accordingly, even if they should have responded and put in a railing, I am not persuaded that it helps the claimant here."
[9]I should also, before coming to the issues on the appeal, set out some other matters of background. Drayton Court forms part of the St Dials estate in Cwmbran. It was built by or before 1971 by the Cwmbran Development Corporation which had been formed in 1949 as part of the post-war New Towns Development Programme. The subway dates back to the time of the estate's original construction. The land on which the estate stands, including the subway, is now vested in the respondent local authority, which accordingly bears any responsibility that might arise under the Occupiers Liability Act 1957 or the Occupiers Liability Act 1984, to both of which statutes I shall have to return. As the judge stated at page 5, the subway is not an adopted highway maintainable at the public expense under the highways legislation, and accordingly was not subject to periodic inspection by the respondents' Highways Department. Thus, no question arises of liability under the highway statutory provisions.[10]The judge disposed of a series of arguments advanced by the appellant which are not reproduced in the grounds of appeal for which permission has been given and I need not spend time with those. It is a single feature of the case that the appellant had failed to plead his best or real case; namely a claim of liability under the Occupiers Liability Act 1957 or the Occupiers Liability Act 1984. However, at trial the appellant was allowed to develop argument based on those provisions and the judge's findings in relation to those points figure in the grounds of appeal.[11]It is convenient at this stage to set out the material provisions themselves. It is first to be noted that both statutes replace rules of the common law. In the case of the 1957 Act there are rules for regulating a duty owed by an occupier of premises to his visitors in respect of dangers due to the state of the premises. In the case of the 1984 Act, there are rules for determining whether any duty is owed by an occupier to persons other than his visitors in respect of the risk of injury on the premises by reason of any danger due to the state of the premises or anything done or omitted there and, if so, the nature of the duty. For these matters see section 1(1) in each statute. Then the material provisions are as follows. First, the 1957 Act, section 1(2):
"The rules so enacted shall regulate the nature of the duty imposed by law in consequence of a person's occupation or control of premises and of any invitation or permission he gives, or is to be treated as giving, to another to enter or use the premises. But they shall not alter the rules of the common law as to the persons on whom a duty is so imposed or to whom it is owed."
Then going to section 2:
"(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 the want of care which would ordinarily be looked for in such a visitor . . . (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."
[12]Turning to the 1984 Act, section 1(3):
"An occupier of premises owes a duty to another, not being his visitor, in respect of any such risk 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; (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 a risk, the duty is to take such care as is reasonable in all the circumstances of the case to see that he does not suffer injury on the premises by reason of the danger concerned . . . (6) No duty is owed by virtue of this section to any person in respect of risks willingly accepted as his by that person."
[13]It is convenient to identify the live issues in the case by reference to the grounds of appeal for which Latham LJ gave permission. These are grounds 2 to 6. I shall describe these and indicate the judge's findings upon them before coming to my own view of the case. Mr Jarman has, with our permission, also raised ground 7. For reasons which will appear, that can be dealt with shortly.[14]Grounds 2 and 3 go together. They amount to an allegation that the judge should have found that the retaining wall had been negligently designed. Ground 4 alleges that the appellant had an implied permission to use the grass bank as a means of access to his flat. That plainly is an allegation highly material to the claim of liability arising under the 1957 Act. Ground 5 is put in the alternative to ground 4 and is a claim that the judge ought to have found that the respondents had reasonable grounds to believe that the appellant might come within the vicinity of the danger posed by the unfenced retaining wall, within the meaning and for the purposes of section 1 of the 1984 Act. The reference is, of course, specifically to section 1(3)(b) which I have read.[15]Ground 6: the judge should have found that the respondents had actual or constructive knowledge of the risk posed by the unfenced drop. The two previous accidents are relied on and the evidence of a witness, Mrs Harrhy, to the effect that had she known of the previous accidents, she would have arranged for fencing to be erected along the top of the retaining wall and that could have been done before the appellant's accident.[16]Lastly, ground 7 assaults the judge's finding that it would have been a counsel of perfection to respond to Mr Palin's accident by erecting fencing by end of January 1999. The reference is to pages 16-17 of the judgment which I have read.[17]In my view, the appellant's case here principally stands or falls according to whether he can establish any liability under the Act of 1957 or that of 1984. There was previously a suggestion that the respondents might be liable by force of their statutory responsibilities as highway authority, but, as I have indicated, such a claim is no longer alive. I should add that if it were, it seems to me that it is effectively disposed of by the judge in a passage at page 8 which I need not read.[18]The judge dealt with the case arising under the Act of 1957 and that arising under the 1984 Act at pages 11 and following of his judgment. The appellant could, of course, only rely on the occupier's common duty of care under the 1957 Act if he could demonstrate on the evidence that he was a visitor: that is to say, an invitee or licensee as the common law understands those terms. The judge rejected, without difficulty, (page 12) the proposition that the appellant had any express permission to be on the grass embankment and that conclusion is not challenged. He proceeded also to find that there was no implied permission, and this, as I have indicated, is challenged in ground 4. He rejected (page 9) the contention that there was a well-worn path on the bank indicating regular use, holding that that was unsupported by any evidence. The appellant sought to challenge that finding by ground 1, but the single Lord Justice refused permission in respect of it. The learned trial judge continued (page 12):
"I have already pointed out that no inference as to its usage [I interpolate, that is to say the use of the grass bank] as a footpath can be drawn from looking at the photograph. No evidence was called by the claimant from other residents of Drayton Court or the St Dials Estate to establish that they habitually used the embankment as a shortcut. There is no evidence at all that the defendants have any knowledge to the effect that people were using the embankment as a short cut. In his evidence before me, Mr Whealdon said that they often get requests from the public for the authority to adopt an informal footpath and sometimes they comply with that request and set about creating a proper footpath. No such request was received here. I have to conclude, therefore, that no permission, whether express or implied, was given for the use of the embankment as a footpath. It follows that the claimant was not a lawful visitor so far as the embankment was concerned and that the defendants did not owe him a duty of care pursuant to the 1957 Act."
[19]The judge proceeded to consider whether any liability arose under the terms of the 1984 Act. After referring to authority of this court in Donoghue v Folkestone Property [2003] EWCA Civ 231, [2003] QB 1008, and in particular the proposition that each of the criteria in section 1(3) of the 1984 Act has to be considered "having regard to the characteristics and attributes of the individual claimant and the circumstances prevailing when that individual suffered his injury" (a proposition approved by their Lordships' house in Tomlinson [2003] UKHL 47, [2004] 1 AC 46), the judge proceeded to hold in the appellant's favour that his accident happened as a result of a danger due to the state of the premises within the meaning of section 1(1)(a) of the 1984 Act.[20]The judge then considered, for the purposes of section 1(3)(a), whether the respondents were "aware of the danger or had reasonable grounds to believe it existed". The case for the appellants here turned in very large measure on the two previous accidents, and I have already cited the passages in his judgment in which the judge described those matters and drew his conclusions from them. His conclusion, adverse to the appellant, is challenged in ground 6. The judge then considered and rejected the submission that the respondents knew or had reasonable grounds to believe that the appellant might come into the vicinity of the danger within the meaning of section 1(3)(b) of the 1984 Act. This is what he said at page 18:
"The claimant has to prove that the defendants knew or had reasonable grounds to believe that at the material time, ie, around midnight, Mr Maloney would be in the vicinity of the grass embankment using it as a shortcut to his flat. In my view, there is no evidence that the defendants knew that persons such as the claimant late at night used the embankment as a shortcut and neither is there anything to suggest that they should have known, ie, that they deliberately shut their eyes to the risk (see Swain v Matui [1996] PIQR 443). In these circumstances, given their lack of knowledge, both actual and 'shut eye', I cannot see that the defendants should have been expected to offer Mr Maloney protection against a fall from this embankment. In other words, in the circumstances of this accident, the defendants are not in breach of any duty to the claimant under the 1984 Act."
[21]I have not so far dealt with the judge's conclusions on the issues raised at grounds 2 and 3; that is whether the retaining wall had been negligently designed. The judge dealt with this at pages 9 to 11. He held that there was no evidence that the design of the retaining wall by the standards of the time it was made exhibited any want of care. There was nothing to show any breach of the then building regulations or any current design criteria, and reliance on the 1997 accident, in particular the borough engineer's memorandum of 11th August 1977 which related to it, carried the matter no further.[22]Before turning to my conclusion, I should say that there is a respondents' notice called "Different or additional grounds for upholding the judgment". There the respondents assert,(1) that if there was an implied licence to use the bank as a shortcut to the appellant's flat, it would be limited to the daylight hours and a route away from the edge of the drop;(2) the accident did not occur as a result of the state of the premises;(3) the appellant willingly accepted the risk engaging section 1(6) of the 1984 Act;(4) the respondents could not have been reasonably expected to protect the appellant against the risk even if the appellant established the matters set out at section 1(3)(a) and (b);(5) the judge was wrong to find that if there had been a duty under either Act it would have been violated by the respondents' failure to erect fencing; and finally,(6) the judge should not have allowed the claim of negligent design to be advanced.[23]I turn then to my conclusions. I have to say, with deference to counsel, I think that the case has become a little over-complicated. There are only, at most, six questions:(1) On the facts, did the respondents owe the appellant the common duty of care under the 1957 Act?(2) If yes, was the duty broken?(3) If no, did the respondents owe the appellant a duty under the 1984 Act?(4) If yes, was the duty broken?(5) Is there any separate claim based on negligent design of the retaining wall?(6) Is anything added by ground 7?[24]I turn to question (1). Was there a duty of care under the act of 1957? This depends on whether the judge ought to have found that the appellant was an invitee or licensee. It raises the ground of appeal concerned with implied permission or licence. As to this, first, there is no surviving challenge to the judge's rejection of the well-worn path submission. Secondly, neither of the two previous accidents involved any attempt to use the grass bank as an access to the flat. A proper access path was provided and the grass bank was in no way laid out as an access, and, as the respondents submit (skeleton argument, paragraph 7), was clearly intended as landscaping only.[25]Thirdly, it may be said that the respondents had done nothing to prevent anyone using the grass bank and indeed very likely would not have raised any particular objection against anyone's doing so. In general terms I see the force of that, but it does not show that the respondents consented to a tenant of the flats walking on the bank adjacent to the drop late at night as a means of getting home. It seems to me to be a very important feature of this case that we should recognise (see Donoghue) that questions of fact arising either under the Act of 1957 or that of 1984 have to be asked and answered in light of the circumstances at the very time of the accident. Moreover, I consider that the respondents are entitled to rely on what Lord Hoffman said at paragraph 7 in Tomlinson:
"The Council cited a famous bon mot of Strutton LJ in Carlgarth [1927] Probate 93, 110: 'When you invite a person into your house to use the staircase you do not invite him to slide down the banisters This quip was used by Lord Atkin in Hillen v ICI (Alkali) Limited [1976] AC 65, 69, to explain why 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 in order to unload some of the cargo. They knew, said Lord Atkin, at pages 69-70, that they ought not to use the covered hatch for this purpose 'for them for such a purpose it was out of bounds. They were trespassers', so the stevedores should not complain that the barge owner should have warned them that the hatch cover was not adequately supported. Similarly, says the Council, Mr Tomlinson became a trespasser and took himself outside the 1957 Act when he entered the water to swim."
It goes without saying that the facts subject to those observations are a very far distance from what has happened in this present case, but the passage serves to place emphasis on the importance of the immediate circumstances prevailing at the time of the accident in question.[26]Fourthly, it is to be noted that in using the bank as an access, a person would have to step down over a wall something like two foot high (see the lower photograph at page 278 of the bundle). In all these circumstances, I cannot see that the judge can really be faulted in finding that the appellant was not a visitor within the meaning of the Act of 1957. It follows that the respondents owed him no duty under that statute and my second question -- Was there a breach of the common duty of care? -- does not arise.[27]Question 3: Did the respondents owe a duty under the 1984 Act? This depends, of course, on fulfilment of the criteria in section 1(3) of that Act which are, as Mr Jarman accepts, cumulative. I should say that I do not think the judge can be criticised for holding that the appellant's accident met the threshold condition imposed by section 1(1)(a), namely that it happened as a result of a danger due to the state of the premises. The respondents' argument to the contrary in the additional grounds is that the accident was caused by the appellant's "own foolhardy actions in attempting to use the grass bank as an access route to his flat when drunk". This is certainly not the case in which to get involved with the semantics, not to say the metaphysics, of causation. It is enough here to say that the respondents' argument really goes to the degree of the appellant's responsibility for what happened to him, and that is covered by the judge's finding of two thirds contributory negligence, which of course the respondents, for their part, would support.[28]So I turn to the judge's conclusion on the section 1(3)(a) question: Were the respondents aware of the danger or did they have reasonable grounds to believe it existed? I have concluded that the judge was entitled to dismiss the previous incidents as establishing the appellant's case here for the reasons which he gave at some length at pages 16 to 17 of the judgment which I have set out. The appellant also relies, as I have indicated, on the evidence of Mrs Harrhy who was, at the material time, Head of Environmental Services in the respondent authority. We have a transcript of her evidence. In one passage she accepted that had she known of the previous fatality she would have arranged for fencing to be put up, and this could have been done before the date of the appellant's accident. But I cannot see that that displaces the judge's reasoning at pages 16 to 17. I will refer, in dealing with section 1(3)(b) in a moment, to another passage in the evidence of Mrs Harrhy and the other witness from the Council, Mr Whealdon.[29]It might be thought that there was a shorter and stronger point for the appellant here, namely that the danger of falling off the unfenced edge of the bank into the underpass must have been obvious to anyone looking at it. But that is not how the case has been precisely put. In any event, I would not accept that the danger was so obvious, save no doubt, in the case of a drunk man walking close to the edge at night, or some other particular situation where the risk was heightened. This brings me to the question arising under question 1(3)(b) of the 1984 Act. I have already read the judge's conclusions on that part of the case, set out as they are on page 18. I have concluded that there is no basis upon which this reasoning should be overturned.[30]Mr Jarman refers here to the evidence of Miss Harrhy and Mr Whealdon and I should just cite some short passages. Mrs Harrhy (page 16 of our transcript, 236 of the bundle starting at line 11), the witness is answering:
"Excuse me, could I just add there though, that interrogation of all the complaints that we have had in this area has not indicated that people are using this area as a shortcut and I have got no evidence to support that."
Then a little later. "My interpretation is that it [she is referring to the photographs] does not show that this is being used as a shortcut." Later at line 25:
"Q. Or it could be people are walking and using it as a shortcut. Is that a possibility you would consider? A. It is a possibility but, given the evidence there, my interpretation of that is not that that is the case and also I go back to my information I have. I have no complaint from local members or residents of the area that that is the case. Q. You know people take shortcuts, do you not? A. Yes, people do take shortcuts but, again, there is a pedestrian route provided here. Q. And you know that people take shortcuts over grass where paths are not provided? A. Yes, human nature. Q. And it is not surprising, is it, Mrs Harrhy, if someone going up Blenheim Road, instead of going all the way around the blocks of flats, the path that we have seen, would cut across from the top of Blenheim Road down to the entrance to Number 1 Drayton Court. It is not surprising if that happened, is it? A. No, it is a choice for the individual and if the individual chooses to take that route there is a risk associated with that. They are not taking the pedestrian route that has been offered to them."
She refers again on the next page to the fact that there is no pedestrian walkway in that area and she says:
"The route that has been provided is the route that we would expect pedestrians to use."
[31]Then Mr Whealdon -- in a much shorter passage. He was a team leader in the Transportation and Development Control Department with the respondents. He is asked at page 22, line 29:
"Q. I am looking at the photographs we now have. It is not surprising if people used this as a shortcut, is it? A. The shortcut as you refer to may be an area of land that people walk across. That is correct."
It seems to me, with deference to Mr Jarman's submissions, that these passages, if anything, go to assist the respondents' case. But I need say no more than that in my view there is no basis, as I have indicated, for overturning the judge's conclusions on the section 1(3)(b) question set out at page 18.[32]My fifth question related to the allegation of negligent design. In practical terms, I have very great difficulty in seeing that this really adds anything and, in fairness, Mr Jarman effectively accepted as much. The allegation is that the retaining wall should have been fenced. For reasons I have given, I would hold that the respondents owed no duty as occupier to fence it. I have considerable doubts, at least in the circumstances prevailing here, whether there is any scope for the suggestion that the authority owed such a duty in any capacity other than occupier. But in any event, I cannot see that the judge's conclusions on the point at pages 9-11 can really be faulted, and it is of some note to see that Mr Whealdon had this to say (and he is referring to views being taken or risks being assessed, as I understand it, at the time of the estate's construction) at page 24, line 11:
"The risk assessment. My view is a risk assessment that they would have carried out at the time would have been that it is not necessary to provide fencing at these underpasses because all of the footways are totally separate to the underpasses therefore there is no necessity for any pedestrians to be anywhere near."
[33]He was asked about the borough engineer's 1977 memorandum and made the point that what is there being said is entirely in the context of the question whether or not there should be an adoption of the subway by the authority as highway authority. In my judgment, there is nothing in this part of the case. As regards ground 7 and question (6), it is enough to say, as Mr Jarman very candidly accepted, that this takes him nowhere unless he has a claim under the Act of 1957 or 1984.[34]In the result then, and notwithstanding the elegance and economy with which Mr Jarman advanced his submissions for the appellant, I have concluded that this appeal must be dismissed for the reasons I have given.

LORD JUSTICE MAURICE KAY: I agree.

LORD JUSTICE BROOKE: I agree.

Order

Appeal dismissed. Detailed assessment of appellant's legally aided costs.