Viscount Simonds
MY LORDS,
In this case I have had an opportunity of reading the Opinion of my noble and learned friend, Lord Reid, and as I concur in it I do not think it necessary to add any words of my own.
I shall move that this appeal be dismissed with costs.
Lord Reid
MY LORDS,
The Respondent sues the Appellants, a firm of contractors, for damages for injuries sustained by her through falling into an unfenced sunk area when she was leaving No. 25 Cambray, Cheltenham, at about 10 p.m. on 17th November, 1953. This house is part of a terrace set back some 30 feet from the street. Prior to 16th November the access to the front door had been a long sloping ramp with a railing on each side. The original access had been a level path leading to 4 or 5 steps up to the front door, but, many years before, an occupier of the house who used a wheeled chair had had the path and steps covered by the ramp. In 1953 the house was used as a government office and caretakers, Mr. and Mrs. Privett, lived on the top floor. The Respondent had been visiting Mrs. Privett before her accident.
It had been decided by the Office of Works to restore the original form of access and remove the ramp and the Appellants were employed as contractors to do this. They started work on 16th November and by the afternoon of the 17th they had removed the part of the ramp nearest the street and had laid down a foundation of rough stones for the new level path : they had also covered the small lawn belonging to No. 25 with materials and tools. It was, therefore, impracticable to approach the front door over any part of the ground belonging to No. 25. Looking from the street towards the house the lawn was on the right and the boundary with No. 26 was immediately to the left of the ramp. The boundary railings had been removed during the last war and a row of shrubs ran along most of the boundary. The only practicable approach to the front door of No. 25 from the street was to go up the forecourt of No. 26 on the other side of the shrubs and then to pass between the last shrub and the front wall of the houses over some muddy ground and to step up two or three feet from it on to the ramp near the front door of No. 25. In taking this route it was necessary to go within a very few feet of the small sunk area of No. 26 which was unfenced and at the same time to brush past the branches of the last shrub. This route had been made possible by the Appellants having removed the railings at the sides of the ramp. They had replaced the railings by a wooden board on the right side of the ramp but had left open the left side of the ramp nearest to No. 26.
When the Appellants' workmen ceased work about 4.30 on 17th November they did nothing to provide a safe or convenient access to No. 25. The defence at the trial was that an access had been provided by means of a plank walk but this was denied by the Respondent and her witnesses and the defence witnesses were not believed by Hallett, J., the trial judge. At about 3 p.m. on the day of the Respondent's accident Mrs. Privett came out of her house by this route between the shrub and the sunk area and over the ground of No. 26 and asked the workmen : How are we goingto get in and out?, and she says that they told her we can always go on the No. 26 side, and that that side was the best way in. Apparently one of the workmen also went upstairs to see Mr. Privett. Admittedly it was the best way in, in the circumstances, and I cannot regard this as anything else than advice to use the access by the ground of No. 26. Hallett, J. so interpreted Mrs. Privett's evidence. He said: Then she says further that ... she herself was advised by the First Defendants' workmen that that was the best way to go; and earlier in the judgment he had referred to "Mrs. Privett's allegation that she had been advised to use the way she did use, and said that he accepted her evidence without hesitation.
Some time after Mrs. Privett returned, her brother Mr. Brown, who is a builder, came with his wife to visit her. He found that the ramp had gone and when he was looking for an alternative access Mrs. Privett called to him and advised him to go by the route which she had taken herself. Mr. Brown found that the ground near the bush was muddy and brought over a plank which he put down to enable his wife to cross.
About 7 p.m. the Respondent and her daughter were walking along the street. Mrs. Privett saw them and invited the Respondent to come in, again advising her to go by the same route. The Respondent made the journey without much difficulty. About 10 p.m. she left. Mrs. Privett's son offered to accompany her but she thought that unnecessary. She took no precautions such as getting a torch, and after waiting a moment on emerging from the house to accustom her eyes to the darkness she stepped down off the ramp on to the plank. She had no recollection of what happened then but she fell into the sunk area and sustained considerable injuries.
The main controversy in the case has been over the nature and extent of the duty owed by the Appellants to the Respondent. The Appellants maintain that their duty was no higher than that of a licensor to a licensee and in particular that their duty ceased once a visitor had become aware of all the facts constituting the danger. They contend that their only duty was to give adequate warning to a person who was unaware of those facts. Admittedly they did not warn the Respondent but, as the Respondent knew all the facts when she left the house, they say that giving a warning to her was unnecessary. Hallett, J. assumed rather than decided that, because the Respondent was a licensee vis-Ã -vis the occupiers, her rights against the Appellants were only the rights of a licensee in a question with an occupier. In this I think he was wrong; but it may well be that this point was not fully argued, or not argued at all, before him. On all other matters in the case his judgment was full and detailed and I see no reason to disagree with it on any of these other points. It may well be that this matter was over-looked because in addition to the Appellants the Respondent sued the occupiers and against them, of course, her rights were limited to the rights of a licensee.
It is not alleged that the Appellants were authorised by the occupiers to prevent safe access to the house at times when their men were not working, and it is plain that the nature of their work did not require this because the defence which they sought to establish at the trial was that they had in fact provided a safe access by means of a plank walk. The only reasonable justification I know of for the rights of a licensee being limited as they are is that a licensee generally gives no consideration for the rights which the occupier has given him and must not be allowed to look a gift horse in the mouth. That cannot apply to the Appellants, who gave no concession to the Respondent. I need not pause to consider what the position would be if an occupier authorised a contractor to prevent safe access for a licensee. In the present case I see no reason why the contractor who chooses to prevent safe recess by visitors should be entitled to rely on any speciality in the law of licensor and licensee.
In my opinion the Appellants were under a duty to all persons who might be expected lawfully to visit the house, and that duty was the ordinary duty to take such care as in all the circumstances of the case was reasonable to ensure that visitors were not exposed to danger by their actions. It was argued that, even so, that duty was adequately discharged in all cases bygiving warning of the danger and that, if a visitor in full knowledge of the danger chose to incur it, she did so at her own risk and the contractor cannot be held liable. I do not agree. There may be many cases in which warning is an adequate discharge of the duty. There may be another safe and reasonably convenient access only a short distance away or the situation may be such that with knowledge of the danger the visitor can easily and safely avoid it. But there are other cases where that is not so. Let me take the example of a doctor called to an urgent case in a house the only access to which has unnecessarily been made dangerous by a contractor. It cannot be right that he should be entitled to say to the doctor: " Now I have shewn you the danger and if you choose to go on you do so at your own " risk."
I do not think that there is anything new in what I have just said. The principle was at least adumbrated a century ago in Clayards v. Dethick (1848) 12 Q.B.R. 439. A cab proprietor had stables in a mews from which the only road to the street was a long narrow passage. The Commissioners of Sewers employed the Defendants to open a trench along the passage and gave notice to the occupiers of stables in the mews that the trench would be open for a day or two and that they must put up with it: the notice advised them to get other stables. The part of the passage not excavated was obstructed by earth and gravel thrown out from the trench. The cab proprietor safely led out one of his horses but the next fell into the trench owing to the earth and gravel giving way. The danger was obvious and there was evidence that a warning had been given, but the case was left to a jury and the cab proprietor succeeded. Lord Denman, C.J., in the first place left it to the jury to say whether the Defendants had been guilty of negligence and then observed that it could not be the Plaintiff's duty to refrain altogether from coming out of the mews merely because the Defendants had made the passage in some degree dangerous: that the Defendants were not entitled to keep the occupiers of the mews in a state of siege till the passage was declared safe, first creating a nuisance and then excusing themselves by giving notice that there was some danger though, if the Plaintiff had persisted in running upon a great and obvious danger, his action could not be maintained.
On a rule nisi Patteson, J. said: The Defendants had clearly no right to leave a trench open in the passage to this mews without a proper fence, and, having done so, to tell the Plaintiff: ' You shall keep your horse in the stable till we inform you that you may remove him.' But whether or not the Plaintiff contributed to the mischief that happened by want of ordinary caution is a question of degree. If the danger was so great that no sensible man would have incurred it, the verdict must be for the Defendants . . . The whole question was, whether the danger was so obvious that the Plaintiff could not with common prudence make the attempt. Coleridge, J. said: The question is, not only whether the Defendants did an improper act, but also whether the injury to the Plaintiff may legally be deemed the consequence of it ... The Plaintiff was not bound to abstain from pursuing his livelihood because there was some danger. It was necessary for the Defendants to shew a clear danger and a precise warning. Wightman, J. said: If it had appeared that the Plaintiff in defiance of warning would persevere in the attempt to pass, I cannot suppose that the jury would have found a verdict in his favour. Lord Denman, C.J. added: I certainly told the jury that the Plaintiff was not bound to keep his horse back unless the danger was imminent.
As I read these judgments Lord Denman, C.J. and Patteson, J. did not think that a warning would exculpate the Defendant if the danger was not so great or immediate that, on its being pointed out, no sensible man would have incurred it. The judgments of Coleridge, J. and Wightman, J. can be read as indicating an opinion that warning would be sufficient but Coleridge, J. at least adds the qualification that the danger must be clear and the warning precise. Neither says expressly that, if the danger was only such that a reasonable man. though warned, would still go on, still a warning would be sufficient to exclude any liability on the Defendant.
In Thompson v. London and North Eastern Railway 2 B and S 106, Cockburn, C.J. stated his understanding of the decision in Clayards' case in these terms (p. 114): Clayards v. Dethick is a direct authority that where danger has been created by the wrongful or negligent act of another, if a man, in the performance of a lawful act, voluntarily exposes himself to that danger, he is not precluded from recovering for injury resulting from it, unless the circumstances are such that the jury are of opinion that the exposing himself to that danger was a want of common or ordinary prudence on his part. Now that issue was not proposed by the defendants [in Thompson's case] to be put to the jury. They stood upon the fact that the knowledge of the state of the basin by the pilot was the knowledge of the plaintiffs, and was in point of law an answer to their claim. But that is not so, unless the circumstances were such that the attempt to navigate the ship under them was an act which no man of ordinary prudence would have committed. Blackburn, J. said: "On this point I perfectly concur with what has been said by the Lord Chief Justice and my brother Hill; the point is, in fact, decided by Clayards v. Dethick. It might have been a question to be left to the jury, whether the pilot, with the knowledge which he possessed, was guilty of such want of reasonable care, in attempting to take the ship out, as that no prudent man would have so acted. But no such issue was raised by the defendants." In the Exchequer Chamber Counsel for the Appellants only sought to distinguish Clayards' case on the ground that there the acts of the Defendants were wilful acts. Plaintiffs' Counsel was not called upon and the judgment of the Queen's Bench was unanimously affirmed without comment on this matter.
The conclusion to be drawn from these cases appears to me to be that there is no magic in giving a warning. If the Plaintiff knew the danger, either because he was warned or from his own knowledge and observation, the question is whether the danger was such that in the circumstances no sensible man would have incurred it or, in other words, whether the Plaintiff's exposing himself to the danger was a want of common or ordinary prudence on his part. If it was not, then the fact that he voluntarily or knowingly incurred the danger does not entitle the Defendant to escape from liability.
The only cases brought to our notice which are inconsistent with what I have said are Malone v. Laskey [1907] 2 K.B. 141 and Ball v. London County Council [1949] 2 K.B. 159. In Malone's case a contractor had put up a water tank insecurely and it fell on the caretaker's wife and injured her. Heaven v. Pender 11 Q.B.D. 503 was cited but not Clayards v. Dethick. The case so far as relating to negligence was decided against the Plaintiff on the simple but, in my view, erroneous ground that, as the contractor was not the occupier and there was no contractual relationship between him and the Plaintiff, he owed no duty of care to her. In Ball's case Malone was followed as being binding on the Court of Appeal and it is to be noted that there were other grounds which might also have been fatal to the Plaintiff's case.
The whole matter was considered by the Second Division of the Court of Session in Mooney v. Lanarkshire County Council 1954 S.C. 245. The tenant entered into occupation of a local authority's house before the making of the front path had been completed. A visitor to the tenant coming in at night tripped over a metal obstruction protruding from the path and was injured. She was held entitled to damages from the local authority, who were completing the path and had left the obstruction unprotected and ,unlighted. She was not their licensee because they were no longer the occupiers of the path. Malone's case was not followed. The Lord Justice Clerk (Lord Thomson) said (p. 251): As the defenders, on this hypothesis, did not have possession and control in the accepted sense, it seems to me to be inappropriate to try to equiparate their position to that of an owner or occupier having such possession and control. I refuse to countenance the idea that contractors employed to carry out a job on somebody else's premises are entitled to say that their liability to a person injured is to be measured in terms of the relationship between the person injured and their employer. Lord Patrick said (p. 265): If two parties are invited and I use the word in no technical sense—to resort to premises for differentpurposes, and if it would be obvious to a reasonable man that the authorized operations of the one may endanger the other in his permitted activities unless they are conducted with reasonable care, a duty is owed by the one to the other to take such reasonable care ... To such situations the limited duty owed by a person in control and possession of heritage to licensees whom he permits to come on his premises has no application. In my opinion, the only decision which is consonant with the law of reparation, as developed, is that a party invited to do work on a pathway on private ground, which pathway forms the access to the house from the public street, and which he must know will be used by day and by night by the tenant and his invitees and licensees, owes a duty to all these persons to do his work with reasonable care so that their passage may not be rendered perilous. If he erects a dangerous obstruction in the way, it must be made apparent, so that they, using due care for their own safety, may avoid the danger. In that case warning or lighting would have been sufficient to enable visitors to have access to the house without danger and the Court did not have to consider a case like the present where the obstruction was such that safe access had been totally prevented. In my judgment Malone's case ought to be overruled in so far as it dealt with negligence.
I will at this point deal with two matters which have been referred to his argument but which received little attention at the trial. In the first place there was a back door of the house No. 25 Cambray and if that had been shewn to be a reasonably practicable alternative access it would have been open to the Appellants now to say that the Respondent should have gone out that way and so avoided the danger of the route she took. But we know nothing about the back door except that it was locked at 5 p.m.; we do not know who locked it or who kept the key or whether the Privetts were allowed to use it after 5 p.m. No doubt this point was missed at the trial because the only defence then was that a safe access had been provided to the front door. Hallett, J. says: I think it would have been quite unreasonable to have expected these various people to have used it on this occasion. And, She could have asked for the back door to have been opened, although I think it was hardly negligent of her not to." In my opinion we must now disregard entirely the back door and take it that, when the Respondent was invited to come in, her only alternatives were to come in as she did or to go away; and that, when she had come in, her only alternatives were to go out by the route she took or to stay the night where she was. The second matter is the plank laid down by Mr. Brown. The Respondent's evidence suggests that she may have slipped off the plank either because it was slippery or because it moved. But no such case was made at the trial. Hallett, J. asked Mr. Brown whether it would not have been safer if the plank had not been there. Mr. Brown said he did not think so and the matter was left there. I am therefore of opinion that we must take the case on the footing that in so far as the danger of the route caused the Respondent's accident, that danger was the same as it was when the Appellants' workmen were there in the afternoon.
I think that the first question to ask is whether the Respondent acted reasonably in accepting Mrs. Privett's invitation and taking her advice to go the way she did. That must depend on whether the knowledge of the route which she then had ought to have made it clear to her that she would incur a degree of risk which a reasonable person in her position would not have incurred—in other words, whether a reasonable person with her knowledge would have declined the invitation and gone home. There was no urgency about her visit, she only happened to be passing when she was invited to come in. The reason why I first consider whether she acted reasonably in going in is that if she was unreasonable in going in she cannot found on there being some urgency to get out again so as to entitle her then to incur some greater degree of risk. I agree with Hallett, J. that the question is not whether she realised the danger but whether the facts which she knew would have caused a reasonable person in her position to realise the danger. But in considering what a reasonable person would realise or would do in a particular situation we must have regard to human nature as we know it, and, if one thinks that in a particular situation thegreat majority of people would have behaved in one way, it would not be right to say that a reasonable man would or should have behaved in a different way. A reasonable man does not mean a paragon of circumspection.
The Respondent was a very frequent visitor to No. 25. She knew the sunk area of No. 26 well and knew that it was unfenced—she said so in evidence. She must also have had at least a general idea of the rest of the route she proposed to take, but people differ very much in the degree to which they observe and remember things they pass every day. When describing her inward journey she said: I could not get through the bushes until I came up to the last bush ... I saw I could get up through the last bush, and I got up through there, which rather suggests that she did not have a clear picture of the route until she traversed it. Hallett, J. says that the whole of the facts which constituted the danger were perfectly well known to her when she was coming out. Agree, but I do not think that they were when she decided to go in. It was unnecessary on his view of the law for him to consider what she knew before she went in and I do not read his finding as covering this. Indeed, I do not think that the evidence would support such a finding about her knowledge at that stage.
In my judgment it was not unreasonable for her to accept Mrs. Privett's invitation and follow her directions. She would think, and rightly, that Mrs. Privett knew much more about the route than she did. It is true that the Respondent was 71 years of age but she seems to have found no great difficulty in getting up a step from the ground to the top of the ramp which other witnesses say was two or three feet high. I think it would have been unreasonable for her to attempt this unknown journey in the dark without Mrs. Privett's invitation and direction and if the Appellants could disclaim all responsibility for Mrs. Privett's direction to the Respondent then it would be another question. But they cannot do that. Hallett, J. found that their workmen advised the use of the route in question, and I can find no ground for supposing that that advice was confined to Mrs. Privett personally. They must have known that others might wish to come in and ought to have realised that this advice would be passed on to them. Certainly they gave no warning that no one else should go that way. If they had given a warning instead of an encouragement to Mrs. Privett, we do not know what would have happened. Perhaps she would have insisted that they should lay a plank walk over the rubble path.
The next question is whether, if she acted reasonably in going in, the fuller knowledge of the route which she gained on the inward journey made it unreasonable for her to try to go out the same way. Now there was some urgency about making the return journey for otherwise she would not get home. Here it is relevant to consider the attitude of the other people in the house when she left, Mrs. Privett, her son, and Mr. and Mrs. Brown. They all knew the route. Mrs. Privett's son offered to accompany the Respondent but she said she could manage. It did not occur to any of them that she should not go or that she should not go alone. I find it very difficult to assume that they were all unreasonable people in letting her go alone, and I think that only a minute proportion of ordinary people, put in the Respondent's shoes and faced with the choice of staying the night or taking the route she did, would have chosen to stay the night. But I think that most people would have been more careful than she was schedule would certainly have been wiser to take the son's offer, and I agree with the finding that there was contributory negligence n her part in not taking enough care when she left the house, but I cannot find that in seeking to return by this route she acted unreasonably or so negligently as to lead to the conclusion that her accident was caused entirely by her own fault.
It is sometimes said that when a visitor goes on knowing the risk the test is whether he was free to choose or acted under some constraint. My difficulty about that test is that freedom is a word which has come to have very different meanings for different people. If this test leads to the same answer as the question whether in all the circumstances the visitor acted reasonably, well and good. But if not. I think that, in cases like thepresent, reasonableness is the better test and is more in accordance with principle. The Defendant is bound to take reasonable care but be is entitled to expect that a visitor will behave in a reasonable manner. I leave aside cases where children are concerned.
In my view the accident was caused partly by the danger of the route and partly by the Respondent's own negligence. But the Appellants argue that they cannot be held responsible for the danger of the route because they had no right to remove that danger or even to enter the grounds of No. 26 where the danger lay. It is true that they could not remove that danger: their fault lay in making it necessary for visitors to use that route. Their duty was to take reasonable care for the safety of visitors. They interfered with the existing safe access as they had a right to do. But in my opinion their duty to visitors required them to mitigate the result of their interference in so far as in all the circumstances it was reasonable that they should do so, and I think that their own defence in this case shows that it would have been reasonable when they left off work to lay down a plank walk over the rough rubble path. But even if I am wrong in that, I think that they were still at fault. I leave aside the point that they made this route possible by removing the railing at the top of the ramp because that point was not dealt with at the trial and some explanation might have emerged if it had been. But they should have given warning against use of this route instead of advising its use, and, if they had done so, it is by no means improbable that matters would have developed in such a way that the Respondent would never have taken this route. I am therefore of opinion that, in so far as the danger of the route contributed to cause the accident, the Appellants are liable to the Respondent. I see no reason to disagree with the decision of the majority of the Court of Appeal that the Appellants and the Respondent were equally to blame, and I am therefore of opinion that this appeal should be dismissed with costs to the Respondent.
Lord Cohen
MY LORDS,
I have had the opportunity of reading in print the speeches, one of which has been delivered by my noble and learned friend Lord Reid and the other of which is about to be delivered by my noble and learned friend Lord Somervell. I agree so fully with the reasons they give for thinking that the appeal should be dismissed that I can state quite shortly my reasons for arriving at the same conclusion.
I need not recapitulate the facts. They have been fully stated by Denning, L.J. in the Court of Appeal and by my noble and learned friend Lord Reid.
So far as the law applicable to those facts is concerned Mr. Fox-Andrews did not dispute the principle which was stated by Denning, L.J. as follows: — a contractor doing work on premises is under a duty to use reasonable care to prevent damage to persons whom he may reasonably expect to be affected by his work." Nor did Mr. Fox-Andrews deny that the Respondent was such a person. But he argued that: —
1. the dangerous condition which caused the accident to the Respondent existed not on the premises on which the Appellants had been working but on the adjoining premises and had not been created by the Appellants. Moreover, the Appellants had no control over the adjoining premises. Accordingly the Appellants were not responsible for any damage arising from this dangerous condition;
2. the duty resting on the contractor was confined to a duty to warn against any danger they had created—and, therefore;
3. though it is admitted that the Appellants gave no warning, as the Respondent knew all the relevant facts, the breach of duty cannot be said to have caused the accident.
My Lords, the short answer to the first of these submissions is, in my opinion, that the evidence does not lay the necessary foundation of fact for it. The learned judge described the state of the ground when the Appellants' workmen ceased work on the day of the accident and said that there existed theoretically four means of approach to the front door of No. 25 Cambray Place, the premises on which the contractors were working. Three of them were situate entirely on these premises and the learned judge found that none of them was practicable. The fourth started over the forecourt of the adjoining premises, No. 26 Cambray Place, but ultimately crossed on to the ramp approach of No. 25 close to the top of the ramp. This undoubtedly involved passing close to the unfenced basement area of No. 26 and it is true that the Appellants had no legal right either to fence it or place warning lamps around it. But this is, in my opinion, irrelevant. In the first place, had not the Appellants pulled down the fence which was on the same side of the ramp as No. 26 before they commenced work and put nothing in its place, this means of approach would never have existed at all. In these circumstances I do not think the Appellants can be heard to say that they did not create the danger which caused the accident to the Respondent. I would add that the evidence of the Respondent read in the light of the plan which was before your Lordships indicates that she commenced to fall while still on the premises of No. 25, and though the consequences of her fall might have been far less serious had there been no basement area in No. 26, the fall seems to have been caused by the state of affairs created by the Appellants on the premises of No. 25.
Turning to the second of Mr. Fox-Andrews' submissions, I do not think that it is true to say that in all cases the only duty imposed on contractors is a duty to warn. Mr. Fox-Andrews relied on a series of cases where it was held that the liability of an occupier to his licensee was confined to a duty to warn, but I agree with Denning, L.J. that the principle of these cases is not applicable when the relationship between the parties is not that of licensor and licensee but the claim is one for breach of a duty of care. In such a case I think the measure of liability is correctly stated by Denning, L.J. where he says: "The Defendants are liable, not because they are occupiers, but because they created a dangerous state of things and they are under a duty to use reasonable care to prevent damage from it. ... (They might in some circumstances fulfil their duty of care to visitors by putting up a warning in clear terms ' Danger. Keep ' Out': for that might suffice to prevent damage to them. The occupants of the house might then have grounds of complaint for blocking their access, but the visitors would not.) But if the contractors do provide an alternative route, on or off No. 25, or adopt an alternative route, or point one out, as they did here, or it is an obvious deviation for a visitor to take, they are under a duty to use reasonable care to prevent damage to visitors who take that route. A contractor who creates a dangerous state of things cannot escape the consequences by leading people into another danger.
Denning, L.J. also said: It is true that they are under no duty to visitors to provide an alternative route for getting to the front door. My Lords, I incline to think that this statement is too widely expressed. Take the hypothetical case suggested in the course of the argument by one of your Lordships of a doctor called in to a patient seriously ill. If the contractor knew that the house contained a patient seriously ill, I doubt whether he would fulfil his duty merely by warning the doctor of the danger the contractor had created. It might well be that he must create an alternative route. Even on the facts of the present case I doubt whether the contractor could have discharged his duty without putting an obstruction in the place of the railing he had removed similar to that which he erected on the opposite side of the ramp to prevent a fall into the basement area of No. 25. It is not, however, necessary to decide this point, since even if a warning was enough, no warning was in fact given.
This brings me to the third submission based on the Respondent's alleged knowledge of all material facts. On this point I agree with Denning, L.J. that knowledge of a plaintiff of the danger can only excuse the defendant where the tribunal, which is the judge of fact, finds on proper evidence that the injury suffered by the plaintiff can be said to be due solely to his own fault. Before the passing of the Contributory Negligence Act of 1945 mere contributory negligence of the plaintiff would have afforded a defence to the defendant, but under the present law, as Denning, L.J. said in Slater v. Clay Cross Co. (1956) 3 W.L.R. at p. 236, it is not a bar to the action but only a ground for reducing the damages.
It was argued that the learned judge had found as a fact that the accident was due solely to the fault of the Respondent. It is true that in one passage he said: The whole of the facts which constituted the danger were perfectly well known to her when she was coming out", but in the penultimate paragraph of his judgment he said that she herself contributed very largely indeed to her accident. The second passage seems to me to come nearer to representing the effect of the evidence which was before the Court. I agree with Denning, L.J. that the Respondent did not fully appreciate the danger of the fourth route. She admitted that she was a frequent visitor to No. 25, that she had seen the area of No. 26, and that she knew there was no fencing around it, but on the occasion of her previous visits the two premises were separated by a railing, and I see no reason to suppose that she had ever directed her mind to the question of the distance between the basement area of No. 26 and the bushes between the two properties. Indeed, she herself said she did not know how far the plank from which she fell was from that basement area. The trial judge relied upon the knowledge he attributed to her as the result of her entrance to the house by the fourth route. But she entered after it was dark, and I see no reason to suppose her entry enlarged her knowledge. Indeed, the fact that she had got in safely by that route would, I should have thought, have made her more inclined to think she could safely use the fourth route especially bearing in mind that the Appellants' servants had recommended this route to the occupier of No. 25 and she had passed this advice on to the Respondent. On the question of the measure of the contributory negligence of the Respondent I cannot usefully add anything to what was said by my noble and learned friend Lord Reid.
For these reasons I agree with the majority of the Court of Appeal that the accident cannot be attributed solely to the Respondent's conduct and that the conduct only affords a reason for reducing the damages.
I would dismiss the appeal.
Lord Keith of Avonholm
MY LORDS,
I do not see this case so clearly as some of your Lordships. To begin with, the facts of the case and particularly the nature of the approach on to the ramp at or near the front door of No. 25 are not so clearly brought out in the evidence as to make me fully confident that we can draw the correct inference as to how the Plaintiff met with her accident. I should have liked to know more about the terrain between the boundary of Nos. 25 and 26 and the side of the ramp of which at least one half from the door of No. 25 towards the street extending to some 27 feet was still in being at the time of the accident. It is quite impossible, in my opinion, to accept the evidence of the Plaintiff, a woman 71 years of age, that she stepped up 3 feet to get on to the ramp. Three feet is a climb not a step. Having said so much, however, I think it is a fair inference to draw from the evidence that on leaving No. 25 the Plaintiff fell as she stepped off the side of the ramp on to the plank that had been placed below the ramp by Mr. Brown and that the accident started at least on the property of No. 25, though how the Plaintiff covered the 6 to 8 feet or so intervening between the place of her fall and the area of No. 26 remains one of the unexplained features of this case.
Turning now to what are matters of law, I agree that the contractors had a duty to protect members of the public or occupants of No. 25, seeking toenter or leave the house, from harm as a result of their operations. The extent of that duty must, in my opinion, depend, however, on what a reasonable man might contemplate as likely to happen on the property of No. 25 from the state in which it was left. I emphasise the words on the property for I am quite unable to accept the view that if the accident had begun and ended on the property of No. 26, the contractors would have been liable. I say so for various reasons. In the first place, the Plaintiff knew as much, indeed more, about No. 26 than did the contractors or their men. The men had been working at No. 25 only two days before the accident happened. The Plaintiff had been a frequent visitor at No. 25—two or three times a week, she says, for a period of about one year. She knew all about the layout of No. 26 and its unprotected basement area. But that is not the chief point. Technically the Plaintiff was a trespasser on No. 26. The trespass was insignificant and certainly excusable. But I cannot see how the contractors' men, assuming they advised or encouraged the trespass, are in any different position from the Plaintiff. If a person encourages a trespass and another person accepts the encouragement, both being aware of the position, and the actual trespasser is injured by some danger on the land trespassed on, known to both, there is no principle I know of which would attach liability to the instigator or encourager in a question with the trespasser. Deception of, or ignorance of, or inadvertence of, the 'trespasser might raise difficult questions in certain circumstances or certain dangers, but nothing of that sort is present in this case. So viewing the matter, I find myself unable to agree with a passage in the judgment of Denning, L.J., as he then was, where he says:
But if the contractors do provide an alternative route, on or off No. 25, or adopt an alternative route, or point one out, as they did here, or it is an obvious deviation for a visitor to take, they are under a duty to use reasonable care to prevent damage to visitors who take that route. A contractor who creates a dangerous state of things cannot escape the consequences by leading people into another danger.
No case was cited and I know of none where a contractor has been held liable for a danger not of his own creation and existing on adjacent property with which he had nothing to do and with which he had no right to interfere. I could go no further than to say that if, in circumstances like the present, a contractor does not provide a reasonably safe approach to the house, he may be liable to a person seeking to enter or leave the house who takes the risk of passing over or on the danger left by the contractor and sustains injury thereby. No case was cited and I know of none that would carry the contractor's liability further than this and, in my opinion, the ratio of none of the cases cited can be stretched to cover a peril on adjacent land for which the contractor was in no way responsible.
I think, however, it is possible to hold that as a result of operations conducted by the contractors here, the Plaintiff was precipitated from the property of No. 25 into the danger on the adjacent property of No. 26 owing to the dangerous condition of the access to the door of No. 25 created by the contractors, and it is not, I think, a relevant factor that the Plaintiff was intending to trespass on adjacent property. What is material is that the evidence shows that persons were using this route or approach to No. 25, that the contractors' men knew that Mrs. Privett, the caretaker's wife, was using this route and should have contemplated that other persons might use the same route. The contractors had removed the railings alongside the ramp and so made this route possible and they had provided no safe alternative route. I think, therefore, they were liable for the accident that happened.
I would dismiss the appeal.
Lord Somervell of Harrow
MY LORDS,
I agree with the majority of the Court of Appeal that a person executing works on premises, as were the first defendants in this case, is under a general duty to use reasonable care for the safety of those whom he knowsor ought reasonably to know may be affected by or lawfully in the vicinity of his work. Some of the phrases in the above statement are taken from the judgment of Denning, L.J., in this case and some from that of Scrutton, L.J., in Kimber v. Gas Light and Coke Co. [1918] 1 K.B. 439, 447. I also agree with Scrutton, L.J., that this is laid down plainly in Corbyv. Hill 4 C.B. (N.S.) 556, 567. More recently the principle was applied in Haseldine v.Daw [1941]2K.B.343.
I also agree with Denning, L.J., that Malone v. Laskey [1907] 2 K.B. 141 was wrongly decided in so far as it held that the repairers of a water tank owed no duty to the plaintiff to take reasonable care to prevent danger because there was no contract between them and the plaintiff, the plaintiff being a resident on the premises. If and in so far as Ball v. London County Council [1949] 2 K.B. was based on the decision in Malone v. Laskey it cannot be regarded as an authority.
The duty being a general duty to use reasonable care, reasonableness is the test of the steps to be taken. In the present case the learned Judge held that the Defendants were not under a duty in law (my italics) to provide an alternative means of access. Denning, L.J., said that the Defendants were under no duty to provide an alternative route. With respect, I think this is the wrong approach. Their duty is to do what is reasonable. There may well be cases where it is reasonable to leave the normal route dangerous and to provide a safe alternative. There may be other cases where it is reasonable to make the old route safe by planks or covering or fencing off of holes or other appropriate steps. There may be other cases where it is reasonable to make entrance from the front impossible and make everyone go round to the back door. I am only stressing the fact that reasonableness is the test.
Here the learned trial Judge thought the Defendants ought to have done that which they said they had done, namely, have left a plank walk fenced with ropes and stakes. He held, however, they were under no duty in law so to do. As it was their case that this had been done, it would seem reasonable to hold that it would have been a reasonable step to have taken knowing that there would probably be visitors. I agree with the majority of the Court of Appeal that the Defendants were negligent in leaving the premises as they did and in advising the route which led round the laurel bush without either fencing or putting lights by the open area of No. 26.
The fact that this route was indicated by the Defendants' servants seems to me to remove the suggested difficulty as to the danger being on neighbouring land. If the Defendants felt unable to put up lights or protection on the land of No. 26, that would be a reason for making a safe route on No. 25 or taking reasonable steps to ensure that everyone used the back door.
Did the Defendants' negligence cause the accident? Their negligence caused the use of the No. 26 route by the Plaintiff. That route was described by the learned Judge as follows: —
The fourth and the only other route was to advance by the fore-court—that is of No. 26—" until you were almost in the basement. . . You then round the laurel bush in the small space in between dipping or bobbing down or having your face hit by the branches, and then climbing up on to the ramp which you would meet not quite at its top but a few paces down from its top, where, as far as I can tell from the evidence the height would be about three feet."
If, as I have held, the taking of this route was the consequence of the Defendants' negligence, prima facie a fall into the unfenced basement in the dark would be a consequence of that negligence. But it is said the Plaintiff knew of the danger. Before the Contributory Negligence Act, 1945, a plaintiff guilty of contributory negligence could not recover, although the damage was in part due to the negligence of the defendant. The plaintiff's knowledge of a danger was relevant to the question whether he had been guilty of negligence which contributed to the accident. There is often, as there was in Clayard v. Dethick [1848] 12 Q.B.R. 439, a further question as to whether, although knowing of the danger, he acted reasonably, in allthe circumstances, in taking the risk which he did take. If so, he was not negligent although there was an accident. Since the Contributory Negligence Act the question is whether, having regard to his knowledge and the other circumstances, the Plaintiff was negligent and, if so, was his negligence the sole cause of the accident or only a contributory cause. The Appellants relied on the finding by the learned Judge that the Plaintiff at all material times knew that the basement was unfenced and the physical facts of the general layout. It would, of course, have been absurd to suggest that she knew at any rate before her first journey up the route what was the exact proximity of the basement when she was pushing round the laurel bush in the manner described by the learned Judge. Nor was it put to her in cross-examination that she had any such precise knowledge after reaching the house. The learned Judge has found that there was no appreciable light from the street lamps and she may well have thought the distance greater than it was. When she left she did not want to trouble anyone to assist her. This may have been negligent. There may have been negligence in the actual way she tried to make her way round the bush. For my own part the contribution of her own negligence to the accident certainly did not exceed the fifty per cent, attributed to her.
Denning, L.J., in his judgment, cited and applied a statement of his own in Slater v. Clay Cross [1956] 3 W.L.R. at page 236: "knowledge of the" danger is only a bar where the party is free to act on it so that the injury can be said to be due solely to his own fault . . . Where knowledge of the danger is not such as to render the accident solely the fault of the injured party, then it is not a bar to the action but only a ground for reducing the damages.
I think the words free to act in the context may be ambiguous. The Plaintiff was free to stay the night in No. 25 but the learned Lord Justice did not mean that her freedom to do this meant that the accident was due solely to her own fault. There may be many cases where a plaintiff is "free" in one sense to avoid the risk altogether but where it would be reasonable to run the risk. When the plaintiff has full or partial knowledge of the danger the question must always be: Was the injury, in all the circumstances, including the plaintiff's knowledge, due solely to his own negligence or was it due solely to the negligence of the defendant or was it due to the negligence of each?
For the above reasons, which are substantially those given by Denning. L.J., I would dismiss the appeal.