B e f o r e :
LORD JUSTICE NOURSE
LORD JUSTICE KENNEDY
and
LORD JUSTICE EVANS
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PAUL ALAN STAPLES |
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Plaintiff/Respondent |
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-v- |
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WEST DORSET DISTRICT COUNCIL |
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Defendant/Appellant |
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(Computer Aided Transcript of the Palantype Notes of
John Larking, Chancery House, Chancery Lane, London WC2A 1QX
Telephone No. 071-404-7464
Official Shorthand Writers to the Court)
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MR. B. BROWNE (instructed by Messrs. Porter Bartlett & Mayo, Yeovil) appeared on behalf of the Defendant Appellant.
MR. R. TYSON (instructed by Messrs. Pengilly & Ridge, Weymouth) appeared on behalf of the Plaintiff Respondent.
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HTML VERSION OF JUDGMENT
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Crown Copyright ©
LORD JUSTICE NOURSE: I will ask Lord Justice Kennedy to deliver the first judgment.
LORD JUSTICE KENNEDY:
- Introduction
This is an appeal by the Defendant from a decision of Mr Justice Auld (as he then was) who on 24th May 1994 found that the Appellants, as owners and occupiers of the harbour wall known as the Cobb at Lyme Regis, were negligent and in breach of the common duty of care which they owed to the Plaintiff Respondent, in consequence of which on 14th February 1988 the Plaintiff slipped off the harbour wall and sustained injury, loss and damage. The Judge further found that it was as a result of the injury which he sustained in that first accident that the Plaintiff on 29th April 1989 sustained further injury when, in the course of his employment as a drain cleaner, he fell off a ladder. The Plaintiff's own negligence was held to have contributed to the first accident to the extent of 40%, and, allowing for that contribution, he was awarded damages in the sum of £95,102.40.
Before us there is no challenge to the award of damages, nor is there any challenge by the Respondent to the finding of contributory negligence. The Appellants, by their grounds of appeal, challenge the Judge's findings as to liability and causation in respect of both accidents; but before I turn to the grounds of appeal it is necessary to say something more about the accidents, and where they occurred. The findings of fact made by the Judge are not in dispute, and so to set the scene I rely upon his judgment.
- The Cobb
The Cobb is a serpentine harbour wall which has been in position for about 165 years in its present state. The top of the High Wall is about 15 - 25 feet wide, heavily pitted, with smooth areas here and there. It slopes towards the sea with a gradient of about 1:5, but for the last 3 feet or so the gradient is reduced. In that area algae form and linger in the winter months. Some of the algae collect in the holes and crevices, and some of it forms a thin and plainly visible darkish coloured layer on the surface of the stone. When wet, as it often is in the winter months because of rain, wind, sea and spray, this algae-affected seaward edge of the High Wall is in parts slippery; that is where the surface of the wall happens to be smooth. From the seaward side of the High Wall there is a drop of about 20 feet to a rock base, which can be exposed at low tide. On the harbour side of the High Wall, neither side of which has ever been fenced, there is a drop of 8 feet to a lower walk-way and quay. At four points along the length of the Cobb there are steps connecting the two levels, and all that is evident on the photographs that were before the trial judge, and which are before us. The Cobb is a well-known tourist attraction, open to the public at all times, and in all weathers; and, although really a harbour wall, it is treated as a promenade by many tourists and others throughout the year. Until after the Plaintiff sustained his first accident on 14th February 1988 there were no notices warning of the danger of slipping or falling from the High Wall, and no such accident had ever been recorded. There was a fatal accident in January 1988, but it was of quite a different kind, and for present purposes it can be regarded as irrelevant.
- The First Accident
The Plaintiff was born on 1st July 1955, so on Sunday 14th February 1988 he was 32 years of age. He had hoped to go sea fishing that day with two friends at Newhaven in Sussex. The weather however was inclement, and they ended up at Lyme Regis. The Plaintiff had not been there before. With his friends he had a snack lunch in their car. It was a fine afternoon, and so at about 3.30 pm he and his friends did what many others were doing, and went for a walk on the High Wall. There was a strong south-east wind, and spray was affecting the top surface of the wall. The Plaintiff was wearing fairly new trainers, and was a little behind his friends. He observed the algae, and knew that when wet the surface would be slippery, but he crouched within 3 feet of the seaward edge to take a photograph of his friends. His feet then slid, he was unable to save himself, and he went over the edge. As a result of that fall, he fractured his left hip.
- The Second Accident
The Plaintiff returned to work in May 1988. By April 1989 he still suffered an occasional spasm in his left leg once or twice a fortnight, usually at or towards the end of the working day. At about 9.30 am on 29th April 1989 he climbed a fixed vertical ladder to price a roof job, and fell from a height of about 26 feet, fracturing his heels, his wrists, and a lumber vertebra. He asserted in evidence, and the Judge accepted, that he fell because he had a leg spasm of the type to which I have already referred.
- Liability for the First Accident
The Judge expressed his conclusion as to the Appellants' responsibility for the first accident thus:
"Knowing of the popularity of the Cobb as a tourist attraction throughout the year, the Council should, in my view, have warned those using it of the particular danger of the surface being slippery. It did not do that, and for that reason I am of the view that it failed in its common duty of care and was negligent."
After that accident the Appellants erected warning signs at each of the approaches to the High Wall which read:
"WARNING
This wall is slippery particularly when wet and users are asked to use special care. All persons using this wall do so at their own risk."
As to that, the Judge said:
"In my view, if Mr Staples had seen such a sign as he set out upon the High Wall of the Cobb on 14th February 1988, there is at least the probability that he would have paid more attention to the surface on which he was walking and would have kept away from the edge."
- Contributory Negligence
Although there is no Respondent's Notice, it is, in my view, important to see how the Judge came to the conclusion that the Respondent was also substantially at fault. He said:
"He [the Respondent] was aged 33 and had experience of coastal and harbour settings, having done some sea fishing. He saw the band of algae running along the edge of the sloping surface of the High Wall and that it was wet. He knew that wet algae on a stone surface can make it slippery, and must have realised that there was at least a risk of slipping as he walked along close to the edge. To crouch down sideways on, and so close, to the edge to take photographs, without first checking the surface beneath him, was, in my view, negligent and a substantial co-operating cause of his fall."
- Grounds of Appeal
The Appellants advance four grounds of appeal. First, they submit that the Judge was wrong to conclude that the appellants were negligent and in breach of the common duty of care in failing to erect warning signs. Secondly, they submit that the Judge was wrong to conclude that had a warning sign been erected the first accident would have been avoided. Thirdly, they submit that the Judge was wrong to conclude that the level of contributory negligence was only 40%. Fourthly, they submit that the Judge was wrong to conclude that the Plaintiff was acting reasonably at the time of his second accident.
- Ground 1: Duty to Warn
Before us, as before the Trial Judge, it has been accepted by the Appellants that at the material time, and for the purposes of the Occupiers Liability Act 1957, they were the occupiers of the High Wall of the Cobb, which constituted premises for the purposes of the Act, and that the Respondent was a visitor to those premises. Accordingly, it has been accepted by the Appellants that they owed to the Respondent the common duty of care which, in s.2(2) of the 1957 Act is defined as:
"... 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."
The Respondent was permitted on the High Wall for the purposes of recreation, and s.2 of the 1957 Act provides some further assistance as to how the common duty of care should be interpreted. Leaving out words which for present purposes do not assist, the section continues:
"(3) The circumstances relevant for the present purpose include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor......
(4) In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that (for example)-
(a) where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe;
(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 (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another)."
It is, in my judgment, of significance that the duty is a duty owed by the occupier to the individual visitor, so that it can only be said that there was a duty to warn if without a warning the visitor in question would have been unaware of the nature and extent of the risk. As the statute makes clear, there may be circumstances in which even an explicit warning will not absolve the occupier from liability (see s.4(a) above); but if the danger is obvious, the visitor is able to appreciate it, he is not under any kind of pressure and he is free to do what is necessary for his own safety, then no warning is required. So, for example, it is unnecessary to warn an adult of sound mind that it is dangerous to go near the edge of an obvious cliff (see Cotton v Derbyshire Dales District Council C.A. 10.6.94 unreported). In the present case, as Mr Tyson for the Respondent acknowledges, he must succeed under the Occupiers Liability Act or fail, because, although the Judge also referred to negligence at Common Law, there was no other relationship between these parties that could give rise to liability.
Accordingly, as it seems to me, the question which the Judge had to consider, in the light of all the circumstances, and especially in the light of the Respondent's own evidence, was whether there was any relevant danger of which on 14th February 1988 this Respondent needed to be warned. He could see that the High Wall sloped towards the sea, that it was unfenced, and that its upper surface was affected by spray. He could also see when he got on to it a band of algae along the outer edge, and, most significantly, he knew that in consequence it might well be slippery. His answers in cross-examination were frank and explicit. For example:
"Q. And you knew that it was likely to be slippery? A. I knew that the whole thing, to a degree, was likely to be slippery. No - not intending to take any risks.
Q. Well, let us just take it in stages, shall we? You would realise, obviously, that sloping stone surface, which is wet, is going to be slippery without more? A. Yes.
Q. But obviously where it is also affected by algae which is wet, it is going to be more slippery than the places where there isn't any algae? A. Yes.
Q. So that you knew that whilst the whole of the Cobb was likely to be slippery, the bottom three plus feet, which is really where we have got to, would be more slippery than the rest of it? A. Yes, that would be likely.
Q. And as you walked along the Cobb you didn't need anyone to tell you any of those things for you to be able to recognise the dangers? A. Yes.
Q. Did you? A. Well, no, you didn't.
Q. Because, as a sensible human being, looking at this thing as it wound its way out to sea to start off with and then as you walked along it you were perfectly capable of recognising all the hazards that you were about to encounter? A. There didn't appear to be any hazards apart from possibly getting run over by a pushchair.
Q. Well except that it was slippery, the whole of it was slippery. A. Yes, we've agreed that.
Q. And the seaward three plus feet was very slippery? A. Yes."
A couple of pages later in the transcript the Respondent was asked:
"... after you got on to it you saw there was algae there and you knew it was there. A. I saw that it was wet and slimy, yes."
The warning which the Judge found should have been given was that given by the notices posted after the Respondent's first accident which, it will be recalled, read thus:
"This wall is slippery particularly when wet and users are asked to use special care."
But in my judgment that would not have told the Respondent anything that he did not know. He knew the wall to be slippery when wet. In his words, he "saw that it was wet and slimy", and he knew of the need for extra care. As Mr Browne has pointed out, the Respondent was not alone in his recognition of the danger. Other witnesses, such as the Respondent's friend Mr Bryan and P.C. Harper, also recognised it. And the Judge too recognised that at all times the High Wall needed to be treated with respect. At page 9E of the transcript of his judgement he said:
"It is obvious that the High Wall of the Cobb is a dangerous structure if treated as a promenade and not just as a sea wall, the degree of danger depending upon the weather conditions, the condition of the surface and how near one goes to the edge. It is high above the sea; it slopes down to an unfenced almost vertical drop on the seaward side to the rocks below; and it is capable of being very slippery in winter months when it is wet. Like the edge of a cliff or mountainous or rocky terrain its nature obviously demands respect. Its prime purpose as a harbour wall over at least 165 years has left it untouched by the normal safety precautions that a public body would now consider necessary when constructing or providing a structure to which it knows the public will have access. The fact that there is no recorded accident of a similar kind over that long period is some testimony to the respect with which its many visitors have treated it."
Mr Tyson submits that nevertheless the Respondent should have been warned because when he began to walk and saw others having no difficulty he was lulled into a sense of false security. But the notice now relied upon did not warn the Respondent against being lulled into a sense of false security, and even today it is not suggested that it should have done so. No doubt that is because the Respondent recognises that it would be unrealistic to contend that when algae-affected stone which was obviously all potentially slippery turned out to be only slippery in parts, that was something which could be said to amount to a trap, calling for special measures to bring it to the attention of a visitor who was well aware of the overall risk of slipping.
- Ground 2: Causation
That brings me to the second and related ground of appeal, because it is the Appellants' contention that even if there had been a notice of the kind displayed after the accident it would not have affected this Respondent. If he had read it, he would have recognised at once that it told him nothing that he could not see for himself. If thereafter, having got on to the High Wall, he found that he did not slip and that others were not slipping, he would have been no less liable to have been lulled into a sense of false security (assuming that that is what happened) than if no notice were displayed. The most that can be said is that if there had been a notice the Respondent might have behaved with greater circumspection, but a bare possibility is insufficient to establish causation. Mr Browne submits that in the circumstances the Judge was not entitled to find it probable that if there had been a notice the Respondent would have behaved in any different way, and I find that submission also to be persuasive.
- Conclusion as to liability
My conclusion therefore is that the Judge was wrong to find that liability was established for two reasons - first, because in all the circumstances on 14th February 1988 no warning notice of the type subsequently displayed was required. This experienced visitor, as he made clear in evidence, was, like countless predecessors, well able to evaluate the dangers involved in using the High Wall as a promenade. Secondly, even if a notice had been displayed, the probability is that he would not have been affected by it.
I reach that conclusion with hesitation, having regard to the experience of the Trial Judge, and I am naturally reluctant to see a successful plaintiff deprived of damages already awarded, but in my judgment the conclusion is inescapable, and, as Mr Browne points out, nothing here turns on the Judge's evaluation of witnesses, so this court is in as good a position to reach a conclusion as to liability as was the Trial Judge. It is difficult to know precisely why the Respondent fell. He may have crouched near the edge on a smooth part of the wall that was particularly badly affected by algae, and so increased the chances of slipping, but that does not enable me to say that because there was no notice he fell victim to a danger of which he was unaware. Indeed, the words used by the Judge when he came to deal with contributory negligence, which I have already quoted, make it to my mind abundantly clear that this Respondent was a visitor who needed no warning.
Of course, after the accident the position was different. The Appellants then knew that a visitor had slipped off the edge into the sea, and, as responsible occupiers, they had to do what they could to prevent a recurrence, so they posted warning notices. The fact that they took that action after the accident does not enable me to draw the inference that, in order to discharge the common duty of care to the Respondent, they should have done so before the accident occurred.
- Grounds 3 & 4
In the light of my conclusion as to primary liability it is unnecessary to say anything about the Judge's finding of contributory negligence, and, if it were necessary to consider Ground 4, I would not interfere with the decision of the Judge. In my view he was, on the evidence, entitled to say that on 29th April 1989, when climbing the vertical ladder as he did, the Respondent was acting reasonably. That, however, cannot now assist the Respondent, because, for the reasons I have given, I would allow this appeal.
LORD JUSTICE EVANS: I agree entirely with the judgment of Lord Justice Kennedy and that this appeal should be allowed. I share his reluctance, for the reasons he has given, but I find myself driven to the conclusion that the Respondent cannot attribute negligence to the Appellants in circumstances where nothing was known to them, or would have been known to them if previous inspections had been made, which he did not know and appreciate for himself. If the cause of his accident was the general state of the algae-covered strip at the seaward edge of the Cobb, combined with the pronounced 1:5 slope of the top, then the danger posed was obvious and in fact was appreciated by him. If the cause was an isolated slippery patch, which had not manifested itself as a source of potential danger during the 165-year history of the Cobb, then that was not something which the Appellants should have foreseen, nor is it clear what the terms of a specific warning would have been. Whichever it was, the Appellants cannot be held liable in negligence by reason of their failure to erect warning notices before this accident occurred.
LORD JUSTICE NOURSE: I agree with both judgments.
Order:appeal allowed with costs here and below, not to be enforced without the leave of the court in respect of costs up to and including the judgment of Auld J, and a section 18 order against the legal aid fund in respect of the costs of the appeal, the Plaintiff Respondent's contribution having been determined at nil.
