Haley v London Electricity Board [1964] UKHL 3

House of Lords

Between

HaleyAppellant

London Electricity BoardRespondent

Before

Lord Reid

Lord Morton of Henryton

Lord Evershed

Lord Hodson

Lord Guest

Date 28 July 1964

LORD EVERSHED

My Lords,

Lord Reid

The Appellant became blind many years ago as a result of an accident. He conquered his disability to such an extent that for some years before 1956 he was employed as a telephonist by the London County Council. He lived in a street in South East London and it was his habit to walk unaccompanied from his home for about 100 yards along the pavement and then to get someone to help him to cross the main road where he boarded a bus. With the aid of his white stick he had learned to avoid all ordinary obstacles. On the morning of 29th October, 1956, he had walked some fifty yards from his house. On that morning unknown to him the Respondents' workmen had begun excavating a trench in the pavement, and they had placed an obstacle, which I shall describe in a moment, near the end of the trench. The Appellant tripped over it and fell heavily. As a result of his head striking the pavement he has become deaf. He now sues the Respondents on the ground of negligence. The case was decided against him by the trial judge and by the Court of Appeal and he now appeals to this House.

The Respondents had authority to make this excavation under the Public Utilities Street Works Act, 1950. That Act requires that any such excavation shall be adequately fenced and guarded but the Respondents argue that there is no civil liability under that Act for breach of a statutory duty. I need not consider that question because I am of opinion that the Appellant is entitled to succeed at common law.

The Respondents gave no instructions to their men as to how they were to guard this excavation and gave them no apparatus for that purpose except two notice boards. What the men did was to put the notice boards in such a position in the roadway as to prevent vehicles coming near the kerb and so enable pedestrians to avoid the excavation by walking past it on the roadway. At one end of the excavation they put a pick and shovel on the pavement, and at the end to which the Appellant came they put a punner. This implement consists of a long handle like a broomstick to one end of which is attached a heavy weight. They put the heavy end on the pavement near the kerb and put the other end on to a railing, which runs along the inside of the pavement, so that it was some two feet above the ground. The handle was therefore sloping up from ground level at the outside of a height of about two feet at the inside of the pavement.

The Appellant approached using his stick in the proper way—keeping it in front of him more or less vertical and moving it about so as to detect anything in his way. But he missed the punner handle and his leg caught it about 4½ inches above his ankle or about 8 or 9 inches above the ground. It is not alleged that he was negligent. He gave evidence that he had more than once detected with his stick the railing which the Post Office always use to guard their excavations. A senior Post Office engineer gave evidence that they always guard their excavations with a light fence like a towel rail about two feet high, and that they take into account the protection of blind people. He said that he knew of cases of blind people coming into contact with their fences. Unfortunately he was not asked whether this fence was (effective to protect blind people but I think that one can infer that it is seeing that the Post Office do have regard to their needs. Certainly the Appellant's view, based on his own experience, is that a fence like that would have prevented his accident.

The trial judge held that what the Respondents' men did give adequate warning to ordinary people with good sight, and I am not disposed to disagree with that. The excavation was shallow and was to be filled in before nightfall, and the punner (or the pick and shovel) together with the notice boards and the heap of spoil on the pavement beside the trench were J think sufficient warning to ordinary people that they should not try to pass along the pavement past the trench. I agree with Somervell L.J. in saying that a person walking along a pavement does not have " to keep "his eyes on the ground to see whether or not there is any obstacle in " his path " ( Almeroth v. W.E. Chivers & Son, Ltd. [1948] 1 All E.R. 53). But even allowing for that degree of inadvertence of which most people are often guilty when walking along a pavement, I think that what the Respondents' men did was just sufficient to attract the attention of ordinary people with good sight exercising ordinary care.

On the other hand if it was the duty of the Respondents to have in mind the needs of blind or infirm pedestrians I think that what they did was quite insufficient. Indeed the evidence shows that an obstacle attached to a heavy weight and only nine inches above the ground may well escape detection by a blind man's stick and is for him a trap rather than a warning.

So the question for your Lordships' decision is the nature and extent of the duty owed to pedestrians by persons who carry out operations on a city pavement. The Respondents argue that they were only bound to have in mind or to safeguard ordinary able-bodied people and were under no obligation to give particular consideration to the blind or infirm. If that is right, it means that a blind or infirm person who goes out alone goes at his peril. He may meet obstacles which are a danger to him but not to those with good sight because no one is under any obligation to remove or protect them. And if such an obstacle causes him injury he must suffer the damage in silence.

I could understand the Respondent's contention if it was based on an argument that it was not reasonably foreseeable that a blind person might pass along that pavement on that day; or that, although foreseeable, the chance of a blind man coming there was so small and the difficulty of affording protection to him so great that it would have been in the circumstances unreasonable to afford that protection. Those are well recognised grounds of defence. But in my judgment neither is open to the Respondents in this case.

In deciding what is reasonably foreseeable one must have regard to common knowledge. We are all accustomed to meeting blind people walking alone with their white sticks on city pavements. No doubt there are many places open to the public where for one reason or another one would be surprised to see a blind person walking alone but a city pavement is not one of them. And a residential street cannot be different from any other. The blind people we meet must live somewhere and most of them probably left their homes unaccompanied. It may seem surprising that blind people can avoid ordinary obstacles so well as they do but we must take account of the facts. There is evidence in this case about the number of blind people in London and it appears from Government publications that the proportion in the whole country is near one in 500. By no means all are sufficiently skilled or confident to venture out alone but the number who habitually do so must be very large. I find it quite impossible to say that it is not reasonably foreseeable that a blind person may pass along a particular pavement on a particular day.

No question can arise in this case of any great difficulty in affording adequate protection for the blind. In considering what is adequate protection again one must have regard to common knowledge. One is entitled to expect of a blind person a high degree of skill and care because none but the most foolhardy would venture to go out alone without having that skill and exercising that care. We know that in fact blind people do safely avoid all ordinary obstacles on pavements; there can be no question of padding lamp posts as was suggested in one case. But a moment's reflection shows that a low obstacle in an unusual place is a grave danger: on the other hand it is dear from the evidence in this case and also I think from common knowledge that quite a light fence some two feet high is an adequate warning. There would have been no difficulty in providing such a fence here. The evidence is that the Post Office always provide one, and that the Respondents have similar fences which are often used. Indeed the evidence suggests that the only reason there was no fence here was that the accident occurred before the necessary fences had arrived. So if the Respondents are to succeed it can only be on the ground that there was no duty to do more than safeguard ordinary able-bodied people.

The Respondents rely on the case of Pritchard v. Post Office (1950) 114 J.P. 370—a decision of the Court of Appeal not reported in either of the more commonly cited series of reports. The facts are not fully stated, but it would appear that servants of the Post Office had protected a hole where they were working by surrounding it with their usual light fence but a blind woman stumbled through the fence and was injured. I would think that the decision was clearly right, the sole cause of the accident being the plaintiff's contributory negligence. But the County Court judge based his decision on there being no special duty to protect the blind or infirm and that was repeated by the Court of Appeal in dismissing an appeal. I am aware that the current practice is to regard the ratio of a decision as equally authoritative whether the judgment was given ex tempore after inadequate argument or given after full argument and mature consideration. I think that this places a wholly unreasonable burden on the Court of Appeal. The argument before your Lordships in this case occupied three days which was not at all too long in view of the novelty and difficulty of the points involved. Pritchard's case was argued and disposed of in one day, and it would be quite unreasonable to prolong the hearing of a small County Court appeal which must obviously fail in order to have a full legal argument even assuming that counsel were prepared to deal fully with the general question of law.

Some assistance can be got from M'Kibbin v. Glasgow Corporation [1920] S.C. 590 but the decision is not in point because it was held that there was evidence that the protection of a water hydrant was not adequate as regards persons with good sight. Lord Justice-Clerk Scott Dickson said:

" I demur " to the view that blind people are not entitled to walk about the streets "unless accompanied by some person in charge of them... this pursuer "was entitled to be on the street; and was entitled, in my judgment, to " assume that the street was reasonably safe for her " (p. 594).

Lord Dundas said:

" It would not be easy to lay down in a sentence or a couple of " sentences the whole law applicable to the subject; something must "always depend upon the facts to which you are going to apply the law. I think " in each case the jury would have to consider, with regard to a blind " person, whether that blind person was, in the circumstances, fairly and " reasonably treated by the Corporation or other defenders—whether he " had or had not been duly warned and reasonably guarded. " It is true that Lord Salvesen took a rather different view.

We were also referred to American authorities. A number are referred to briefly in 141 American Law Reports Annotated at p. 721. Most are in reports not available here, but it seems clear that widely differing views are expressed. We were informed that there is nothing in the American Restatement on the question we have to decide, and I am unable to determine whether any view on the question can now be said to prevail in the United States.

I can see no justification for laying down any hard and fast rule limiting the classes of persons for whom those interfering with a pavement must make provision. It is said that it is impossible to tell what precautions will be adequate to protect all kinds of infirm pedestrians or that taking such precautions would be unreasonably difficult or expensive. I think that such fears are exaggerated, and it is worth recollecting that when the Courts sought to lay down specific rules as to the duties of occupiers the law became so unsatisfactory that Parliament had to step in and pass the Occupiers Liability Act 1957. It appears to me that the ordinary principles of the common law must apply in streets as well as elsewhere, and that fundamentally they depend on what a reasonable man, careful of his neighbour's safety, would do having the knowledge which a reasonable man in the position of the defendant must be deemed to have. I agree with the statement of law at the end of the speech of Lord Sumner in Glasgow Corporation v. Taylor

[1922] 1 AC 44

at p. 67

"a measure of care " appropriate to the inability or disability of those who are immature or " feeble in mind or body is due from others, who know of or ought to " anticipate the presence of such persons within the scope and hazard of their " own operations ".

I would therefore allow this appeal. The assessment, of damages has been deferred and the case must be remitted for such assessment.

Lord Morton of Henryton

My Lords,

The claim of the Appellant in this case is founded entirely upon the alleged negligence of the employees of the Respondent Board. The case lodged by the Appellant contained indications that he was relying upon some breach of statutory duty, but Mr. Terrell, in the course of his argument, made it clear that this was not so.

There is no dispute as to the facts, and only two questions arise for decision—first, what is the duty owed by those who engage on operations on the pavement of a highway and, secondly, was that duty discharged in the present case.

My Lords I would answer the first question as follows. It is their duty to take reasonable care not to act in a way likely to endanger other persons who may reasonably be expected to walk along the pavement. That duty is owed to blind persons if the operators foresee or ought to have foreseen that blind persons may walk along the pavement and is in no way different from the duty owed to persons with sight, though the carrying out of the duty may involve extra precautions in the case of blind pedestrians. I think that everyone living in greater London must have seen blind persons walking slowly along on the pavement and waving a white stick in front of them, so as to touch any obstruction which may be in their way, and I think that the Respondents' workmen ought to have foreseen that a blind person might well come along the pavement in question.

I have not found it easy to answer the second question, but I have come to the conclusion that the workmen failed adequately to discharge the duty which 1 have stated, though 1 would accept the finding of the learned trial Judge that " what the Respondents did was adequate to give reasonable and " proper warning to normal pedestrians ". Having regard to the evidence given at the trial, I think that the duty to blind persons would have been discharged if the workmen had used (for instance) the portable and extendible guards which are used by the Post Office for a similar purpose. There would then have been a fence over two feet high right across the pavement instead of a sloping stick which was only a few inches above the ground at the point where the Appellant fell over it. He said in evidence that he was carrying a white stick and continued—" As is customary, I put it out " before me and created a sort of waving of it, as we say in this world, " watching out for any obstruction which may be before us ". I conclude, from this evidence, that the stick must have passed over the top of the punner at this low point, without touching it, and this would have been most unlikely to happen if a guard of the Post Office type had been used.

I have not overlooked the fact that a guard of this kind was provided in the case of Pritchard v. The Post Office (C.A.) 114 Justice of the Peace p. 370 and the blind plaintiff stumbled into it and fell, but the report does not reveal why she stumbled into it, and I think this protection would be adequate for any blind person proceeding with reasonable care and using a stick in the proper manner.

I would allow the appeal. Counsel for the Respondents submitted that a decision against them would have very far-reaching consequences and would make it necessary for persons working in any public place to take elaborate and extreme precautions to prevent blind persons from suffering injury. My Lords, I do not think that the consequences would be so serious as counsel suggest, bearing in mind, first, that there are many places to which one would not reasonably expect a blind person to go unaccompanied and, secondly, that workmen are entitled to assume that such a person will take reasonable care to protect himself, for example by using a stick in order to ascertain if there is anything in his way and by stopping if his stick touches any object.

Lord Evershed

My Lords,

I must confess to having felt greater difficulty than some of your Lordships in concluding that in the present case the Respondent Board must be held liable to the Appellant—though not, I hope, on account of any desire to adhere to my own decision in the Court of Appeal in the case of Pritchard v. Post Office (1950) 114 J.P. 320. There is no authority in English cases or English text books which has placed upon undertakers doing the kind of work which was here being done by the Respondent Board in a public footpath a duty to have regard to the possible use of such footpath by a blind man. Your Lordships were referred to a number of American decisions, but I cannot find in them any consistent support for the existence of such a duty. On the other hand, 1 think that some support for such a view can be found in the Scottish case of M'Kibbin v. Corporation of Glasgow [1920] S.C. 590. True it is that in that case absence of any protection or guard in respect of the work then being done in a footway in Glasgow was held by the Scottish Court to constitute a failure to take due care for the safety of normal foot passengers suffering from no disability of vision. But in the course of his judgment the Lord Justice-Clerk (Scott Dickson) observed (see p. 594 of the Report)—

" I confess I demur to the view " that bind people are not entitled to walk about the streets unless accom- " panied by some person in charge of them. I do not think that is the law ".

The Lord Justice-Clerk then said that it had been proved in the course of this case that the Corporation recognised that blind people would be using the public footways: and in regard to an exception which had been unsuccessfully taken to the charge given by the trial judge he stated (p. 595)

"It asks a direction to the effect that the defenders, being a corporation " entrusted with seeing that the streets are safe to members of the public, " are required to provide only for the members of the public who are normal " in mind and body. I do not think that is a proposition which is sound " in law at all. 1 think it is far too wide ".

I cite also the following passage from the judgment of Lord Salvesen (who had been in fact the presiding

judge at the trial) at p. 598 of the Report:

"The streets of any city are " open to be used by persons of more or less defective eyesight, hearing, " and capacity and I think, as a general proposition in law, that the " Magistrates must take note of that fact and, if they are guilty of negligence, " they cannot escape the consequences by saying that a more vigilant person " than the one who was injured would in all probability have escaped injury ".

Two years later there came before the House the case of the Glasgow Corporation v. Taylor

[1922] 1 AC 44

in which the question arose of the Corporation's liability for the injury suffered by a child from eating berries from a bush growing in a public garden. Lord Sumner concluded his opinion (at p. 67 of the Report) by stating—

" a measure of care " appropriate to the inability or disability of those who are immature or " feeble in mind or body is due from others, who know of or ought to " anticipate the presence of such persons within the scope and hazard of " their own operations ".

The passage last cited may be said to anticipate the classic language used by Lord Atkin ten years later in the case of Donoghue v. Stevenson

[1932] AC 562

at p. 580:

"You must take "reasonable care to avoid acts or omissions which you can reasonably "foresee would be likely to injure your neighbour. Who, then, in law is "my neighbour? The answer seems to be—persons who are so closely " and directly affected by my act that I ought reasonably to have them in " contemplation as being so affected when I am directing my mind to the " acts or omissions which are called in question ".

There is no doubt that the Respondent Board was exercising its statutory rights in digging up a part of the footpath in Charlton Church Lane in a populous part of south east London in or in the neighbourhood of the Borough of Woolwich. The House has not been concerned with any claim founded on nuisance, founded, that is to say, upon a disregard of the terms and limitations of the Respondent Board's statutory powers. The case has proceeded solely upon the ground of negligence, that is, upon a failure in the common law duty of care owed by the Respondent Board. Nor has it been in doubt that such a duty was imposed upon the Board.

I do not attempt any restatement of the general principles defining the duty of care so owed. It is sufficient to say that the duty is defined by reference to the standard of reasonableness, by posing and answering the question, what steps ought the Respondent Board reasonably to have taken to protect or warn persons of the kind that they should reasonably have foreseen might, as members of the public, be using this footpath. As Lord Denning, MR., observed in the course of his judgment in the present case (see p. 117 of the Record) the Respondent Board does

" not have to cater for the man who walks " with his head in the air and does not look where he is going". But he went on to say:

" Likewise, I am afraid I must say, the [Board] " do not have to provide for the blind, at any rate in places where they have " no particular reason to expect blind persons to be. It would be too great a " tax on the ordinary business of life if special precautions had to be taken " to protect the blind; "

and the learned Master of the Rolls then referred to the observations of Lord Salvesen in the M'Kibbin case already cited (at p. 590)—

" They do not have to pad the lamp-posts, for instance, because "blind people use the street; "

and to cite and rely upon the case of Pritchard v. Post Office (supra).

Here, then, is the nub of the case. In the conditions prevailing in the streets or footways of populous towns in the present day and age, is it true to say that there is no duty of care on the part of an undertaking such as the Respondent Board to provide in any way for blind or other infirm or afflicted persons? As I have said, 1 am not prepared to dissent from the view which all your Lordships have reached that a negative answer should be given to this question. There were before your Lordships impressive figures showing the numbers of totally blind people (so registered under the National Assistance Act) resident in London as a whole and in the Borough of Woolwich, namely 7, 321 in London and 258 in Woolwich. It must also, as I think, now be taken as generally known and understood and to be within the common experience of ordinary people that totally blind persons are seen, and not infrequently seen, making their way along highly populated footpaths using for their guidance or protection, as they have been trained to do, a white stick, as the Appellant was doing, and had, indeed, been doing on his way daily along Charlton Church Lane to his work for six years or more before the accident. What, then, had the Respondent Board done for the warning or protection of the public users of the footway when they began their work of excavation? Adjacent to one end of the work (that end with which alone your Lordships are concerned) they had placed an instrument known as a punner hammer across the footpath. The instrument is one that is used for hammering down disturbed earth, being of a length comparable to an ordinary broom but having at one end a heavy metal piece or disc with which the hammering is done. The hammer was placed so that the heavy end rested on the pavement and the other end upon a horizontal cross bar in the fence adjacent to the footpath about 2 feet above the pavement level. It was therefore at an angle across the path at a height above it of 2 feet at the fence end diminishing to that of a small number of inches at the other or street end. I had at one time wondered whether the hammer could fairly be described as an adequate warning or protection for normally sighted persons. But the learned judge found that it was and that view was accepted by the Court of Appeal and must, therefore, be accepted by your Lordships. Indeed, with the notices also displayed any normal foot passenger who paid any proper regard to where he was going could not have fallen over the hammer or into the excavation. But as regards the Appellant there was no suggestion that he departed in any way from his proper conduct in making his accustomed way with the use of his white stick. As I have earlier indicated, the inevitable conclusion as regards his accident must be that his stick, properly used by the Appellant as it was, passed over the top of the hammer with the unhappy result that he tripped over the hammer and suffered injury, the extent of which was no less unfortunate.

Accepting, therefore, as I am prepared to do, your Lordships' unanimous view that the duty resting upon the Respondent Board comprehended a duty toward a blind person who might be using the footpath in the ordinary way and observing due care in the use of his stick for guidance and protection, it follows that the Respondent Board's liability is established. Does it, however, follow that the conclusion in the Appellant's favour imposes (in the language of the Master of the Rolls) " too great a tax on the ordinary " business of life"? My Lords, I think not. In the first place, it should not be taken to flow from the conclusion in the present case that persons executing the kind of work which was being done by the Respondent Board in any place or footway over which members of the public (or other limited classes of persons) might pass must always make adequate provisions for warning or protecting the blind or others suffering from physical incapacity of one kind or another. The extent of the obligation, as in every other case where liability for negligence may arise, must depend upon what those doing the work should in all the relevant circumstances reasonably contemplate. In the present case the work was being done in a footpath in a populous part of London, a footpath which must be used by persons living in that neighbourhood for the essential purposes of their lives. Nor in my opinion does it at all follow that, in cases such as the present or to which the present conclusion would apply, guards of an elaborate or expensive character must be used. Thus it does not at all follow from your Lordships' conclusion in the present case that (as Lord Salvesen suggested in the passage from his judgment cited by Lord Denning) lamp-posts and other normal erections in the foot paths would have to be padded so that a blind person would be unharmed if he walked into them. In the exercise of reasonable care, local authorities and other public bodies are entitled to assume that if a blind man exercises his privilege of using a public footpath he will have been trained to protect himself from collisions of that kind by the use of his stick. One of the witnesses for the Appellant at the trial, an assistant Staff Engineer in the employment of the General Post Office stated that it was the rule of that organisation when opening a part of a foot path in an ordinary street to place around and near to the opening light and portable guards which I understand to be of the nature of trestles the kind of thing which indeed, according to the evidence of the man who at the date of the Appellant's accident was in charge of the work on behalf of the Respondent Board, would normally have been used by way of guard and protection in respect of such work but which had not in fact arrived on the scene when the work began in the early morning of the 29th October, 1956, only very shortly before the accident occurred. In the absence of some very special circumstances there is, I conceive, no obligation for the undertaker to erect guards of so substantial a character that a blind man could not knock them over and so be propelled into the excavation. It suffices, as I apprehend, that the contrivance used should be of such a character as would be sufficient to indicate to a blind man properly using his stick that there was some obstruction and that he should not therefore go forward any further in that direction. A simple light trestle-like contrivance such as was described by the Post Office witness would therefore suffice to discharge the duty owed if it were of a nature such that the stick of a blind man properly being used by him would come into contact with it. In the case of Pritchard v. Post Office (supra) it appeared that the injured blind woman had not merely made contact with the guard or trestle but had pushed it over, gone forward and fallen into the adjacent hole. The only available report of the case gives but the barest statement of the facts; and it may therefore well be that, upon the view which your Lordships are taking in this case, her claim was rightly rejected.

In the present case it seems to me sufficient to hold (and properly only to hold) that the punner hammer was not in fact an adequate or sufficient warning to a blind man because its position was such that the Appellant's stick being properly used by him for his guidance and protection was likely to pass over and passed over in fact the punner hammer which was at the point where the Appellant struck it insufficiently far from the ground.

I concur therefore with the conclusion of your Lordships in the present case and am prepared to accept that in the case of a footpath in a street of the kind of Charlton Church Lane the extent of the obligation of undertakers engaged in making excavation therein should be guaged with regard to the reasonable likelihood of the use of the footpath by blind (or other infirm persons). If it be said that your Lordships are making new law that is only because whatever may have been the facts and circumstances reasonably to be contemplated a hundred years or more ago, at the present time it must be accepted as one of the facts of life that appreciable numbers of blind persons, having had the requisite training, are capable of using or use in fact public footpaths such as that in Charlton Church Lane and that accordingly their presence upon such footpaths cannot reasonably be disregarded or left out of account by those undertaking work of the character being in the present case done by the Respondent Board. As indicated at the beginning of this opinion, I derive assistance from the language which I have cited from the case of M'Kibbin v. Corporation of Glasgow and Glasgow Corporation v. Taylor and from the classic observations of Lord Atkin in Donoghue v. Stevenson ; and from the principle that the ancient rules of the English common law have—and have as one of their notable virtues—the characteristic that in general they can never be said to be finally limited by definition but have rather the capacity of adaptation in accordance with the changing circumstances of succeeding ages.

I therefore agree that the appeal should be allowed.

Lord Hodson

My Lords,

The Appellant, who is blind, met with an accident when he was walking along the pavement near his house as was his wont on his way to work. He was alone and waved his stick in front of him and at the same time used the railings on the inner side of the pavement as his guide. As he walked his right leg struck an object about 4 to 4½ inches above his ankle and as the other leg came forward he was, as he put it, " sort of catapulted over " so that he was injured by the force of his fall to the ground. The object with which he came in contact was a punner which consisted of a round iron head about 10 lb. in weight and a shaft about 5 feet long. This was, when required, used to hammer down the soil when an excavation was filled in and was at the time of the accident placed across the pavement by the Respondent's men who had made an excavation in the pavement 15 to 18 inches deep, 12 to 14 inches wide and some 60 feet long, in the direction in which the Appellant was walking. The handle end rested on a lateral bar of the railings (which ran along the inside of the pavement) about 2 feet from the ground and the hammer end rested on the pavement about a foot from the outer edge. It would appear—that the Appellant tripped over the punner about a third of the way between the hammer end and the railings. The punner was placed where it was in order to deflect pedestrians from the pavement and make them walk in the road past the excavation. In addition to the punner, which was matched at the other end of the excavation by a piled pick and shovel, the Respondent's men put sign boards marked " Road Works ahead" at either end of the trench facing the oncoming traffic each way.

The action was framed in nuisance as well as in negligence. There was a good answer to the claim in nuisance since the Respondents were acting in pursuance of a statutory authority to which it is unnecessary to refer. There was no claim for breach of any alleged statutory duty. The claim in negligence was based on a breach of the duty owing to users of the highway by the Respondents if in carrying out their statutory powers they did not take reasonable care to prevent damage to the public.

So far as the public at large are concerned, without taking into consideration any other than normal road users, the judge held, and his finding was confirmed by the Court of Appeal, that the precautions taken by the Respondents were adequate, reasonable and proper to give warning of the excavation. I agree with this finding.

The problem presented by this appeal derives from its peculiar facts and raises the question of the extent of the duty owed by those who engage in operations on the highway to take reasonable care not to act in a way likely to endanger other road users whoever they may be.

The Respondents' case is that the duty is owed only to normal road users and does not require consideration of individual persons or of individual peculiarities.

This simple position is taken up, as I understand it, on the footing that it is quite impracticable to impose a heavier duty on those who have to execute operations on the highway, for if precautions were taken which were adequate for the old, the infirm and in particular the blind it would be likely to bring highway operations to a standstill.

Reliance was placed on some observations of Lord Wright in Hay or Bourhill v. Young

[1943] AC 92

when he said, at page 109:

" Does the criterion of reasonable foresight extend beyond people of " ordinary health or susceptibility, or does it take into account the " peculiar susceptibilities or infirmities of those affected which the " defendant neither knew of nor could reasonably be taken to have " foreseen?.... One who suffers from the terrible tendency to bleed on " slight contact, which is denoted by the term ' a bleeder, ' cannot " complain if he mixes with the crowd and suffers severely, perhaps " fatally, from being merely brushed against. There is no wrong done " there. A blind or deaf man who crosses the traffic on a busy street " cannot complain if he is run over by a careful driver who does not " know of and could not be expected to observe and guard against " the man's infirmity. "

The Court of Appeal followed in this case an earlier decision of its own, viz. Pritchard v. The Post Office reported in 114 Justice of the Peace 1950 at p. 370 where the injured plaintiff was a blind person who had stumbled and fallen after coming into contact with a wooden structure, not unlike a towel horse, used by Post Office workers to guard a manhole of which the cover had been lifted. The decision was given in favour of the Post Office on the ground that the Post Office had erected a guard which was admittedly adequate for ordinary purposes and that there was no special duty of care owing to infirm persons. The facts of the case are not fully reported but it appears that the decision itself can well be supported on the facts since the Post Office guard would seem to have been of a character which would afford protection to a blind person behaving in a reasonable manner. Blind persons do not commonly go about unaccompanied unless they carry with them sticks such as the Appellant used which give warning of obstructions which stand in the way of their approach.

The peculiarity of this case is that the punner was insufficient for this purpose. Although a Mind man might strike it with his stick, its position and the angle at which it lay made it easy to be missed by him, approaching as the Appellant admittedly did in a reasonable way waving his stick in front of him as well as feeling the railing with it as he went on his way.

Lord Wright, in the passage 1 have cited from the case of Hay or Bourhill v. Young was dealing with foreseeability and his observations are relevant to this case in that he infers that when one does not know or cannot reasonably foresee peculiar susceptibilities of those affected liability will not be incurred. I should have thought with respect that the example of a blind or deaf man run over in the street by a careful driver ignorant of the victim's infirmity is not altogether satisfactory but that there is nothing in the preceding observations which stand in the way of the Appellant's claim. Having regard to the large number of blind persons using the streets in this country, the figure of 107, 000 registered blind persons being given, it must be reasonably foreseeable that blind persons will pass along a pavement in the ordinary course using proper precautions for their own safety in so doing. A different situation is to be found in other circumstances, as for example on a railway station or other places necessarily obstructed in various ways and for varying periods of time. 1, for my part, would seek to go no further than is necessary to decide this particular case which concerns an obstruction on a highway which from its nature was missed by the blind man's stick and which would in all probability not have been missed if it had been extensive enough for him to have a reasonable chance of making contact with it by the aid of the stick which he carried. To put the matter shortly, this punner placed as it was, was not an effective device to warn blind persons of their danger as they walked along the pavement. Something better was required.

I do not suggest that the familiar trestle or some object of equivalent stability would be needed but I think that the slanting punner was insufficient for the purpose of giving adequate warning to a blind person. On the other hand, a piece of portable equipment, such as the guard used by the Post Office in the Pritchard case, might well suffice. On this footing the decision in Pritchard's case is not open to objection although the ratio decidendi that no special duty is owed (in the absence of notice) to other than normal road users is too widely stated.

Your Lordships have been referred to a number of American authorities summarised in a collection of American Law Reports, Annotated, which are inconclusive in their effect, and to a decision of the Court of Session, viz. M'Kibbin v. Glasgow Corporation [1920] S.C. 590, where an elderly woman, almost blind, was injured while walking along the pavement of a street in Glasgow by stepping into a water hydrant the cover of which had been removed. The decision in this case also is inconclusive on the main question. There is, however, a dictum of the Lord Justice-Clerk on page 595 which I would respectfully adopt when he refers to the demand for a direction to the effect that the defenders, being a corporation entrusted with seeing that the streets are safe to members of the public, are required to provide only for the members of the public who are normal in mind or body. This he thought to be a proposition which was not valid in law at all and to be far too wide.

There are, moreover, some observations in two cases in this House which are, I think, significant.

The first is Glasgow Corporation v. Taylor

[1922] 1 AC 44

which concerned a claim by the father of a child who died from eating the poisonous berries of a shrub growing in some gardens in Glasgow which were open to the public and accessible to and frequented by children. In this connection Lord Sumner, at p. 67, used words which seem to me to have general application:

" Where a question as to the care to be used arises between persons " using as of right the place, where they respectively act, infancy as " such is no more a status conferring right, or a root of title imposing " obligations on others to respect it, than infirmity or imbecility; but " a measure of care appropriate to the inability or disability of those " who are immature or feeble in mind or body is due from others, who " know of or ought to anticipate the presence of such persons within the " scope and hazard of their own operations. "

The second case is Donoghue v. Stevenson

[1932] AC 562

where at p. 580 Lord Atkin used these often cited words about foreseeability:

" You must take reasonable care to avoid acts or omissions which " you can reasonably foresee would be likely to injure your neighbour. " Who, then, in law is my neighbour? The answer seems to be—persons " who are so closely and directly affected by my act that I ought " reasonably to have them in contemplation as being so affected when " I am directing my mind to the acts or omissions which are called in " question. "

The Respondents concede that those who engage in operations on the highway owe a duty to take reasonable care not to act in a way likely to endanger other road users. At the same time they say that their duty is confined to a duty owing to normal persons. This contention is surely inconsistent with their concession, for other road users include all sorts of people who cannot be described as normal. In view of the large number of blind persons who fall into the category of abnormal and are users of the road it cannot be said that the risk of causing them injury is so small as to be minimal and therefore to be excluded from the realm of foreseeability. Neither can it fairly be said that such extravagant precautions would be required in order to be useful for their purpose that they cannot be reasonably practicable. Bearing in mind that blind persons to be contemplated are those who behave reasonably and proceed on their way mindful of their own infirmity, and using such means as are available to them to avoid running into obstacles, it is unnecessary to provide special protection for them in the case of all obstacles which stand in their way. 1 have in mind lamp posts, trees, parking meters, pillar boxes and dustbins and things of that kind which one is likely to encounter in or about the highway.

There is here no plea of contributory negligence but quite apart from such a plea the extent of the duty must be considered as owed to those road users who take reasonable precautions for their own safety. Blind persons as well as other infirm persons cannot complain of a breach of duty if they do not themselves take great care and use such means of vigilance as are available to them.

On the facts of this case I am of opinion that the Respondents were in breach of the duty of care which they owed to the Appellant and that this breach was the cause of his injury.

I would allow the appeal.

Lord Guest

My Lords,

The Appellant is a totally blind person, and early one October morning, some eight years ago, he was making his way along Charlton Church Lane when he tripped over a punner hammer which had been placed more or less horizontally across the pavement and was seriously injured. He had been bind for 25 years, and for the last six years he had walked along this pavement—the 100 yards from his house—to a bus stop where he was assisted on to a bus which took him to his work in Greenwich. He knew every inch of the road. His method of progress was to keep to the railings, waving his white stick before him to give him warning of any obstruction ahead. The punner hammer had been placed across the pavement by the Respondents' servants as an intended warning of an excavation which was being made in the pavement with a view to supplying the street lamps with electricity. One end of the hammer was resting on the horizontal bar of the railings, which was about 2 feet high, and the heavy end rested on the pavement, so that the punner was at an angle of approximately 30° to the pavement, with the high end nearest the railings. The appellant says he caught his right teg on the punner about 4 to 4½ inches above his ankle and he was catapulted over nearly into the trench. There were signs "Road Works Ahead" on the roadway at either end of the obstruction. The intended purpose of the punner was to keep pedestrians away from the excavation and to guide them on to the roadway where the traffic would be deflected by the road signs. A pick and shovel fulfilled the same purpose at the other end of the excavation.

The Appellant's action against the Respondents is based on common law negligence. A complication was introduced into the case by the averment in the Defence of the Respondents' statutory powers, and in the Courts below section 8 of the Public Utilities Street Works Act, 1950, which provided authority for the Respondents under certain conditions to do the work in question was canvassed. But the Appellant's action was not based on statute, and the 1950 Act is. in my view, therefore, irrelevant to the consideration of the appeal

The ground upon which the Courts below dismissed the Appellant's action was that the Respondents owed no special duty to blind persons and that, as the precautions taken by them were adequate to protect normally sighted persons from any danger, they were not responsible in law. In so far as the latter matter is concerned, this is a finding of fact upon which there are concurrent findings in the courts below, and I am satisfied that the House would not be justified in interfering. The real question is whether the duty of the Respondents extended towards the provision of precautions for blind persons. The genera! principle to be extracted from the speech of Lord Atkin in Donoghue v. Stevenson

[1932] AC 562

, at page 580, is that the Respondents must take reasonable care to avoid acts or omissions which they could reasonably foresee would be likely to injure persons so closely and directly affected by their actions that they ought reasonably to have them in contemplation as being so affected. Blind persons do walk about the streets unattended, and the registered blind number 7,321 in the London area and 107,000 in the country as a whole, so that the proportion of blind for the whole of Great Britain is at the very least one in five hundred. The Respondents must, therefore, be assumed to have had the blind pedestrian within their range of foreseeability and within their contemplation. Ought they to have foreseen that their action in placing the punner across the pavement would be likely to injure a blind pedestrian? Blind pedestrians commonly use a white stick to guide them and warn them of obstructions. To a blind person who's only seeing eye was his white stick the punner hammer presented, in my view, a potential danger. I would add that without the road signs, without the excavation, without men working on it, the punner hammer would even, to a normally sighted person, be a likely source of danger, if his attention was momentarily distracted from the pavement. The punner hammer was not. in my view, an adequate precaution to take against the blind pedestrian. It was objected by the Respondents that to impose liability on undertakers to provide special precautions for the blind would result in great hardship to a great number of persons. But the evidence discloses that the General Post Office, who have experience of road excavations and manholes in the pavement and the roadway, utilise a simple wooden structure in character similar to a towel horse which is, in their experience, effective to warn blind and normally sighted persons of any excavations. The Appellant himself had come across such fences in his journeys along the street and he had been adequately warned by their presence of any excavation. So that the practice of other undertakers is to take these simple precautions against the blind being injured. If the standard to be adopted is that of the reasonably careful undertaker, the Post Office adopt a precaution in similar circumstances which takes account of the likelihood of blind persons walking unaccompanied on the pavements and provides precautions which have been found efficacious in protecting blind persons from similar dangers.

The Master of the Rolls in the Court of Appeal founded on the case of Pritchard v. The Post Office (1950) 114 J.P. 370 where the Court of Appeal held that there was no special duty on the Post Office to make provision for blind persons. The precautions taken in that case were the towel horse previously referred to. It is not clear how the plaintiff failed to observe the structure and injure herself. It may be that she was not using a stick. If so, the case might have been decided on the ground that she was not exercising reasonable care for her own safety. It is clear that in estimating the degree of care which undertakers owe to the blind they are entitled to expect that a blind person will himself exercise reasonable care which will involve him in taking the special precautions necessary for his safety.

If Pritchard is regarded as authority for the view that there is no special duty on undertakers who interfere with the footway to take precautions for the blind, then, in my view, it was wrongly decided.

Reference was made by the trial judge to observations of Lord Wright in Hay or Bourhill v Young [1943] A C 92 at page 109 when he said:

" Can it be said, apart from everything else, that it was likely that a " person of normal nervous strength would have been affected in the " circumstances by illness as the Appellant was? Does the criterion of " reasonable foresight extend beyond people of ordinary health or " susceptibility, or does it take into account the peculiar susceptibilities " or infirmities of those affected which the defendant neither knew of " nor could reasonably be taken to have foreseen? Must the manner " of conduct adapt itself to such special individual peculiarities? If " extreme cases are taken, the answer appears to be fairly clear, " unless, indeed, there is knowledge of the extraordinary risk. One " who suffers from the terrible tendency to bleed on slight contact which " is denoted by the term ' a bleeder ', cannot complain if he mixes with " the crowd and suffers severely, perhaps fatally, from being merely " brushed against. There is no wrong done there. A blind or deaf " man who crosses the traffic on a busy street cannot complain if he is " run over by a careful driver who does not know of and could not " be expected to observe and guard against the man's infirmity. "

These observations cannot mean that a blind man can, in no circumstances, complain if he is run over by a motorist who does not know that he is blind. The blind man crossing the street is entitled to expect the same degree of care from the motorist as he would take for a normally sighted person. If the blind man failed to take the special precautions demanded of him in crossing the street, he might fail altogether or he might be guilty of contributory negligence. The Scottish case, M'Kibbin v. Glasgow Corporation [1920] S.C. 590, was also referred to by the Master of the Rolls. I am, however, unable to extract any principle from the opinions of the judges in that case. Their observations as to the obligations of road authorities towards the blind were obiter. The decision was upon the form of exception taken to the Judge's charge. A number of American cases was also referred to, but I fail to detect in these cases any consistent line of authority which would give assistance on the question at issue in this House. There is, accordingly, no authority except Pritchard which would compel one to take the view that the obligation of those responsible for the safety of foot pavements is restricted to those persons who have normal sight. In my view, they must have regard to all road users, which include the blind and other persons.

I would allow the appeal.