Butcher v Southend-On-Sea Borough Council [2014] EWCA Civ 1556

Case No B3/2013/2854[2014] EWCA Civ 1556
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SOUTHEND COUNTY COURT
(HIS HONOUR JUDGE YELTON)
Venue Royal Courts of JusticeDate Thursday, 30 October 2014
Strand
London, WC2A 2LL
B E F O R E:
LORD JUSTICE KITCHIN
LORD JUSTICE BEAN
Between
MRS LINDA MARY BUTCHERRespondent-v-
Between
SOUTHEND-ON-SEA BOROUGH COUNCILAppellant
(Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr J Brooke-Smith (instructed by Sparlings Solicitors) appeared for AppellantMr J Nicholls (instructed by Slater Heelis Solicitors) appeared for Respondent
J U D G M E N T

LORD JUSTICE BEAN:

[1]This is an appeal from a decision of His Honour Judge Yelton on a personal injury claim brought in the Southend County Court, heard by him in Cambridge on 12 September 2013. It related to an accident which occurred, one is sorry to note, five years before the trial and six years ago now. Quantum was agreed between counsel in the course of the hearing, so by the time the evidence concluded the judge only had to determine liability. He found the defendants liable, but made a finding of contributory negligence to the extent of 50 per cent. The defendant council appeal against the finding of liability against them. There is no cross-appeal by the claimant.[2]The claimant, Mrs Butcher, was visiting her parents who for some years had lived in a block of flats, sheltered housing owned by the council in Lifstan Way, Southchurch, Southend. On the day in question she did not use the main entrance to the block because there was no car parking space available. Instead she used the back entrance. She had been there on a number of previous occasions. The back entrance was available for use not only by visitors but of course by the residents at the premises, such as the claimant's parents. Mrs Butcher and her daughter (the resident parents' granddaughter) left the premises at about 3 pm through the back door and walked along the path.[3]We have photographs of the back door, the path, and the place where the accident happened, taken less than three weeks after the accident. These were before the judge. They show that as one comes out of the back door of the building, there is a tarmac path which almost immediately outside the back door takes a course diagonally to the right. To the left of the tarmac path there is an area of earth, covered to a significant extent by patchy grass. A photograph of the edge of the path at or close to the location where the accident occurred shows that there is a drop of over just over two and a half inches from the surface of the tarmac to the bottom of a dip which has occurred in the earth.[4]The judge had before him notes made by employees of the defendant shortly after the accident. A manager wrote:
"Sheltered housing officer telephoned me regarding the incident. I asked the health and safety officer to visit site. It would seem that the dry weather had shrunk back the earth from the garden from the edge of the path."
[5]The judge, after referring to that note, said that one of the defendants' witnesses was Ms Sinclair, who was experienced in dealing with such matters. She decided that contractors should be instructed to deliver additional material to infill. As the judge put it, this was not a big job: “contractors put some extra topsoil on or whatever", which brought the surrounding ground up to the same level as the path.[6]There was some dispute at the trial as to how the claimant came to fall and suffer injury. It was suggested by the defendants that she had been looking up to the balcony of her parents' first floor flat, which overlooked the back door. The particulars of claim alleged that the path was proud of the ground by four inches, whereas the photographs show just over two and a half inches. Mrs Butcher said in evidence:
"The path was too narrow. It wasn't obvious where the edge was and it should have been marked by an edge or something like that."
[7]The judge in paragraph 10 of his judgment, after referring to the Occupiers Liability Act 1957 (to which I shall return), said that:
"The only way in which it could properly be said that the defendants were in breach of their duty was in not having built up the ground earlier. If the record of the manager is correct, and I see no reason to doubt it, the dry conditions, no doubt over a period of time, had caused the earth to shrink. I do not accept what the claimant says, which is that the pathway, as it were, merged into the ground. It seems to me there was a very clear distinction between the two, which can be seen on the photographs, which are very clear. "
As I say, the case has given me a considerable amount of thought in the way that a case often does not. I am satisfied that the defendants were in breach of their duty under the Occupiers Liability Act, only in that there was a gap on the side of the path and it was foreseeable that somebody would step in such a way on that, half on and half off, which is argued, and further was, what happened to the claimant in this case, even though she herself was not very clear on it actually."[8]He said that he was not satisfied either way as to whether she had turned around, that is to look up to the first floor balcony, but he held that whether she had or had not, she must have been contributorily negligent, because if she had paid more attention it would have been very clear where the edge of the path was. His conclusion was that:
"This was a fault on the part of the defendants which in fact was obvious and would have been seen had the claimant been paying attention to it."
[9]The judgment was unreserved, at the end of a single day's hearing. Mr Brooke-Smith for the defendant expressly accepts that in those circumstances one does not expect to find the same degree of detailed analysis, let alone extensive references to the law, that might be expected in the case of a reserved judgment. He also accepts that an appellant from a judge's findings of fact in a personal injury case such as the present has quite a difficult task. But he submits that the judge has simply set the bar too high, and has unreasonably found a breach of duty on the part of the defendant.[10]As to the standard of the defendants' duty of care, the judge reminded himself, before referring to section 2(2) of the Occupiers Liability Act 1957, that:
"The defendants are not under an absolute obligation to prevent people falling on their property."
[11]But it is of course not an end to the appeal to say that the judge was well aware that the standard was one of reasonable care.[12]Mr Brooke-Smith has referred us to the section of Clerk & Lindsell on Torts (20th Edition, chapter 12) referring to occupiers' liability and defective premises. This, he says, gives guidance as to the factors which a judge ought to weigh up in cases of this kind, and which he submits Judge Yelton did not satisfactorily weigh up in the present case.[13]It is worth observing that the learned editors of Clerk & Lindsell, having set out sections 2(1) and (2) of the 1957 Act, and having referred to the Law Reform Committee recommendation which led to the Act, say:
"The issue is now simply one of fact to be determined with regard to all the circumstances of the case."
[14]Under paragraph 12-29, they say:
"In determining whether what was done or not done by the occupier was in fact reasonable, and whether in the particular circumstances of the case the visitor was reasonably safe, the court is free to consider all the circumstances, such as how obvious the danger is, warnings, lighting, fencing, the age of the visitor, the purpose of his visit, the conduct to be expected of him, and the state of knowledge of the occupier. The difficulty and expense of removing the danger is a relevant factor ... An occupier who reasonably acts on professional or semi-professional advice is also likely to escape liability. Conversely, failure to obtain or follow such advice, or to perform an adequate risk assessment, may well tip the balance in favour of liability ... Today a good deal of emphasis is placed, at least in the case of business or governmental defendants, on the need for adequate systems or risk assessment procedures. If they are present, then even if an accident occurs despite them, there is unlikely to be liability; if absent, liability is correspondingly likely to follow."
[15]The skeleton argument which Mr Brooke-Smith has lodged says that these are relevant factors to be taken into account, and that the judge did not adequately do so.[16]I would certainly deprecate any attempt, and Mr Brooke-Smith did not in fact attempt, to suggest that the factors mentioned in paragraph 12-29 of Clerk & Lindsell form a checklist which a judge must go through before determining liability in a personal injury case such as the present. It all depends on the facts. In some cases, the presence or absence of a system of inspection will make a great deal of difference. As the judge observed in the course of a discussion about whether permission to appeal should be granted, the system point applies if you have something which suddenly develops; let us say somebody had spilt oil on the path and the claimant slipped on it, it is very difficult for the defendants to know about that within five minutes, said Judge Yelton, referring to well known cases such as Ward v Tesco Stores[1976] 1 W.L.R. 810.[17]This was not a case of a hazard which had suddenly occurred in the minutes, hours or days before the accident. Nor was the hazard upon which the claimant relies the sort which required a professional risk assessment to see whether action was required. The paragraph in Clerk & Lindsell to which I have been referring mentions, for example, Bowen v National Trust, a very sad case of a fatal injury to a child caused by a falling tree branch. The National Trust had carried out what was described as an impeccable risk assessment exercise on its trees and was found not liable.[18]But this drop of two and a half inches at the side of the path was not a subject on which professional assistance was required. Ms Sinclair, it seems, made at least weekly inspections; the caretaker of the property was responsible for looking after the garden and the area at the rear of the premises; and the state of the land was clear and obvious to Ms Sinclair or the caretaker, or anybody else with responsibility for the premises.[19]Clerk & Lindsell also says:
"An occupier who reasonably acts on professional or semi-professional advice is also likely to escape liability."
[20]In the present case the defendants submitted to the judge, and Mr Brooke-Smith on their behalf submits to us, that the council had obtained such professional advice when an audit of the premises and the surrounding ground was carried out in October 2006. It had not been suggested then that the fact that the path was immediately adjacent to a patch of earth created a hazard to the inhabitants of the sheltered housing or their visitors.[21]The difficulty with that submission is that the audit had been carried out two years earlier. We simply do not know -- the judge did not know, and no-one could say -- what the drop at the side of the path at the location where the claimant fell had been in October 2006.[22]Mr Brooke-Smith cited the decision of the Court of Appeal in Beaton v Devon County Council, 31 October 2002, which to this day remains unreported. It is not mentioned in Clerk & Lindsell on Torts, nor in Charlesworth on Negligence. It had far more unusual facts than the present case. Mrs Beaton was on a bicycle ride with members of her family through a disused railway tunnel with some lighting which formed part of the Tarka Trail in the West Country. She came to a halt for some reason and put her right foot down into what turned out to be a gully at the side of the concrete surface of the tunnel, some two and a half inches below the concrete surface.[23]Judge LJ, as he then was, observed in paragraph 18 that in the end the issue before the trial judge was whether or not the gully had been and should have been kept filled throughout its entire length with stones. He then went on in paragraph 20, in a passage upon which Mr Brooke-Smith relied, to say this:
"In my judgment, a very significant piece of evidence failed to attract the attention of the judge. The reason why it failed to do so seems to arise from the fact that he misdirected himself about the standard of care owed by the Local Authority. The history of the use of the track during the previous years before the accident amply supported the contention that the track was reasonably safe for use by cyclists. If the judge had been directing himself correctly, he would have attached much more weight than he did to this uncontroverted evidence. As it is, all he did was to express sympathy to the defendants in the context of this being the first accident involving a gully. In fact that evidence served to demonstrate -- and the County Council was entitled to rely on it for this purpose -- that far from the risk of any accident being, as the judge found, considerable, it was minimal. Probably his misdirection meant that in end he failed to carry out the balancing exercise which is required when deciding the question whether or not a breach of duty has been established. In my judgment, there was no sufficient evidence, even on the judge's own findings, that there had been a breach of Devon County Council's obligation to take reasonable care for the cyclists using that track on the day of this accident. The case therefore was not established."
[24]That was a decision on its facts. The judgment of Judge LJ, and the concurring judgment of May LJ, do not in my judgment lay down general principles, and Mr Brooke-Smith was not able to point to any general principles which they lay down.[25]It is of course a factor in the defendants' favour in the present case, as it very often is in personal injury litigation, that there had been no previous accidents at the place in question. That was no doubt something that the judge had well in mind. On the other hand, it was a factor against them that very promptly after the accident the alleged hazard was rectified, without difficulty or expense, by putting down more topsoil to bring the earth up level with the path; although of course this does not mean to say that the defendants are to be judged with hindsight.[26]The central question, as it seems to me, was this: before the accident, was it reasonably foreseeable that someone (perhaps an elderly resident of the premises) would come out of the back door, and, rather than following the diagonal of the tarmac path, would inadvertently take a relatively straight line course from the back door, step off the path, and lose her balance because of a drop of just over two and a half inches? The judge held that it was indeed reasonably foreseeable, and I for my part cannot possibly say he was wrong.[27]Once that finding was made, the statutory question under the Occupiers Liability Act 1957 was: did the defendants fail to take such care as in all the circumstances was reasonable to see that their visitors would be reasonably safe in using the premises? The judge also answered that question yes, and again I cannot see that he can be criticised for doing so. Indeed the answer follows inexorably on the facts of this case, in my judgment, from the finding that it was reasonably foreseeable that someone would step off the path in this way.[28]Accordingly, while I am grateful to Mr Brooke-Smith for his spirited and helpful submissions, I do not consider that the judge made any error in this case, and I would dismiss the appeal. LORD JUSTICE KITCHIN: I agree that this appeal should be dismissed for the reasons which Lord Justice Bean has given.