Case No: B3/2012/1373
Neutral Citation Number: [2013] EWCA Civ 702
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM TRURO COUNTY COURT
(HIS HONOUR JUDGE CLARK QC)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday 24th April 2013

Before:

LORD JUSTICE LAWS
LORD JUSTICE LEWISON
and
LORD JUSTICE McCOMBE
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Between:

	Tacagni	
Claimant/
Respondent	
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PENWITH DISTRICT COUNCIL	

Second Defendant/
Appellant	

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Mr S Douglas (instructed by PMN) appeared on behalf of the Respondent.
Mr T Petts (instructed by Wansbroughs) appeared on behalf of the Appellant.

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Judgment
Lord Justice McCombe:

(A)	Introduction

1.	This is an appeal from the judgment and order of 15 May 2012 of HHJ Clark QC sitting in the Truro County Court.  By that order, judgment was entered for the claimant on the issue of liability against the second defendant of the action, Penwith District Council (“Penwith”), on the basis of Penwith's one-third liability with a deduction of two-thirds for the claimant's contributory negligence.  Claims against the first and the third defendants, Cornwall County Council and Hayle Town Council, were dismissed.  I need say no more about the role played by those two defendants. Penwith now appeals against the judge's finding of liability on its part.

(B)	The Facts
2.	The case concerns an accident which befell the claimant at about 11.30pm on 15 September 2007.  The claimant and her domestic partner, Mr Stuart Croft, were walking home from a birthday party which had been held at a public house called “The Salt” at Hayle.  Earlier that evening, at about 5pm, she and Mr Croft had walked into Hayle, crossing some fields, by a route different to that taken on their return.  They met two work colleagues and spent some hour and a half with them at a different pub called “The Bird in Hand”, where, on the claimant's evidence, she drank two-and-a-half pints of lager.  From there they went to the party at The Salt, where they stayed some three-and-a-half to four hours.  The claimant said that there she drank four half pints of lager and a vodka and lime.  She said that her drinking that evening had been normal for her and had not been excessive.  She insisted she was not drunk. Medical notes compiled later in the day after her accident stated that she was "inebriated".  The judge found, however, that it was not unreasonable to suppose that she was showing significant signs of "post-concussional unsteadiness", which might explain why the word “inebriated” had been used.  The judge found as a fact that when the claimant left The Salt she was, to a moderate extent, under the influence of alcohol, but was by no means drunk. She and Mr Croft left the party earlier than other guests as Mr Croft had to work the following day.  On their return they proceeded to walk out of Hayle along a road called Carsnew Road (B3301) towards St Erth.  At the relevant point, the road consists of a single carriageway running away from Hayle in an approximate northeast to southwest direction. On the northern side is a pavement of orthodox construction, but which we have been told disappears from usable state shortly after the stretch shown in the photographs that are before the court.  The accident occurred on the southern side, where there is a tarmac foot and cycle path of about 2.15 to 2.35 metres in width.   For part of its length this path is raised some two metres above road level with a retaining wall beneath.  The path slopes upward to this height over a length of some 100 metres from a pedestrian crossing across the Carsnew Road as it leaves Hayle.

3.	In about 2001 part of the retaining wall beneath the path had collapsed.  It was not fully replaced but was consolidated to a lower level than the rest of the wall with the ground above it being landscaped in an upward slope towards the pathway.  At the top of that slope a portion of post and rail fence was erected.  The length of that fencing is about 45 metres in all.  The fence runs for most of its length parallel to the path and to the road, but at its end closest to Hayle (where the accident occurred) the fence “doglegs” across the verge abutting the path, which itself is about 2.65 metres in width, for a length of about 4.84 metres to the edge of the continuing run of the retaining wall, at that point at its highest, about just over two metres in height.

4.	The claimant and Mr Croft walked out of Hayle along the path and up the slope towards the length of fencing which I have just described.  It was obviously dark – “virtual darkness” was the judge's expression -- and neither was carrying a torch.  There was no material street lighting.  They came to the fenced stretch, but by the time they reached approximately the far end of the fence or just beyond it, where there were some trees over the path, they found it was so dark that they decided to turn back towards Hayle and call a taxi.  Mr Croft could not get a signal from his mobile telephone at the point at which they were, and he jogged off ahead of the claimant to try to get his telephone to become operational again.  What happened next is recited in the claimant's evidence quoted at paragraph 9 of the learned judge's judgment in these terms: 

"It was dark but I could see the light at Jewsons in the distance and I just followed the fence back holding it with my left hand as I went. I followed the fence back and remembered bending down and fiddling with my left shoe with my left hand as it was rubbing between my toes…  I remember fiddling with my shoe and putting my left hand out to steady myself on the fence and there was nothing there. I had just followed the fence back around and had not noticed or been aware that the fence had curved off and that I was actually on the start of the grass and I fell approximately 7 feet onto the road below. I didn’t at any time think I was on the grass. If I had noticed that the fence had curved towards the road, I wouldn’t have held onto it."

In the result, she fell from the verge down onto the roadway below and sustained injury.

5.	The judge records the claimant's account to her doctor, in paragraph 10 of the judgment, in slightly different terms from the note: 

"She was wearing flip flops and remembered tripping on them, put her hand out to catch a fence running down the side of the path to support herself. Unfortunately, the fence had terminated, she remembers falling… "

The claimant told the judge that she did not recall saying that she had tripped, but the judge found that the difference in accounts on these two occasions was not material on the issue of primary liability.  He recorded that the fact was that, in virtual darkness, the claimant was using the wooden fence as a guide to help her down the path but did not appreciate that the fence curved to the left towards the road and to the drop from the verge onto the road.  The judge found that she inadvertently followed the fence round and then, losing her balance or tripping, she fell forward over the vertical drop and struck her head on the road surface.  In doing so, I would add she must have left the hard surface path and followed the fence across the grass verge for a distance of almost five metres or perhaps more.  In cross-examination the claimant added: 

"I just followed the fence back holding it with my left hand as I went … Just to keep me -- because my feet were hurting I had obviously been holding onto Stewart (sic) all the time and I was then on my own. It was dark, there was no …no reason. I couldn’t walk properly, it was just what I happened to do."

6.	The judge then recited the history of the pathway as related by Penwith's witnesses.  It appeared that there had been no previous accidents or reports of similar incidents at this point on the path, and it seems that the fence was erected in 2001 following the landslip; at that time, as was envisaged, to protect cyclists and pedestrians from going down the slope at the site of the landslip from the pathway to the lower stretch of retaining wall.

7.	Evidence was given by a Mr Christopher Bassett (whom the judge called “Barratt”), who supervised open spaces on Penwith's behalf.  His evidence was very influential on the judge's conclusions.  He inspected the area on the 29 August 2007 and expressed concern about it (as the judge put it) "the safety of the wall further down the path towards the pedestrian crossing".  As this indicates the area of Mr Bassett's initial concern was not precisely that at which the claimant's accident occurred.  Mr Bassett's evidence, in paragraphs 8 to 12 of his witness statement, was in these terms: 

"8. On 29 August 2007, I carried out an inspection of the Plantation and surrounding areas.  It was following this inspection that I prepared the Open Spaces Inspection Sheet, which forms part of the attached document.  I would stress there was no set period for such inspections to be carried out -- it was an ad-hoc system. 

9. In the section dealing with ‘falls’, I recorded my concern, which was that at one section there was a small wall, about 2 foot high protecting the public from a 12 foot drop onto the main road beneath (both heights approximate). This is some distance away from where I now gather Ms Tacagni fell. The 2 foot wall is further away from Hayle centre. 

10. Having regard to the layout of the path at that point, I was concerned for example that cyclists may come along the path, ie riding too fast, lose control and strike the wall, sending them over the top. I was similarly concerned also that children might run around at that point and come to harm.  What distinguishes this area is that in some places there is a relatively narrow gap or break between the path and the wall/drop, so that when on the path you are closer to the edge. The break between the path and the wall does vary in width, as does the height of the wall. 

11. On 29 August 2007 I did also observe that on the Hayle side of the post/rail fence (which I now understand is where the accident happened), there was no physical barrier between the wide grass verge and the main road beneath.  Reference to this issue therefore also appears on the Works Request form prepared following that inspection, on 30 August 2007, where I suggested that a  barrier be placed or at least a warning signage. 

12. The Inspection Sheet / works request forms came to the attention of Brian Hosken afterwards [I interpolate to say that is Mr Bassett's manager].  He agreed to meet with me on site to investigate my assessment. Following this investigation he told me that he thought my recommendations were unnecessary, having regard to the risk. He relied heavily on the fact that the area had been in the same state for a very long time (I do not know precisely how long) and there had been no problems or other accidents reported. As far as I was concerned at the time, that was that. The same view incidentally was reached about the section of the 2 foot wall, ie nothing needed to be done."

8.	Mr Bassett's Open Spaces Inspection Sheet for the 30 August and his Works Request Form are in the bundle that was before the judge and before us, the relevant passages appearing at pages 141 and 143 of the bundle.  I do not consider it is necessary to recite those as they are adequately summarised in the passage of Mr Bassett's evidence to which I have referred.  Clearly, it seems to me that Mr Bassett's initial concern was for the area around the small wall near the pedestrian crossing at the entry to Hayle.  His worry at paragraph 11 seems to have related to a rather larger stretch of the path along the edge of the verge and along the top of the retaining wall.  In cross-examination Mr Bassett was asked why he thought it was dangerous. His answers were: 

"Because it was an unprotected drop onto the main road with high speed traffic … my concern was obviously for cyclists, young kids on bikes. There was no protection there to stop them flying into the road [some inaudible words followed] if someone lost control … "

9.	Mr Bassett told the court that his views were overruled by his manager, who did not give evidence.  The judge said he found Mr Bassett to be a man with a great deal of practical common sense.

(C)	The Judge’s Conclusions
10.	The learned judge gave a careful review of the parties' submissions and of salient parts of the decided cases to which he had been referred.  He cited in particular the following passage from the judgment of Lord Oaksey in Bolton v Stone [1951] AC 850, 863 which, in my judgment, has a particular bearing on the facts of this case:

"The standard of care in the law of negligence is the standard of an ordinary careful man, but in my opinion an ordinary careful man does not take precautions against every foreseeable risk. He can, of course, foresee the possibility of many risks, but life would be almost impossible if he were to attempt to take precautions against every risk which he can foresee.  He takes precautions against risks which are reasonably likely to happen.  Many foreseeable risks are extremely unlikely to happen and cannot be guarded against, except by the most complete isolation."

11.	Mr Petts, who appeared for Penwith before the learned judge as he has before us, had also relied upon Tomlinson v Congleton BC [2004] 1 AC 46, a case, as would be remembered, where the claimant as a trespasser sustained injury swimming in a lake formed from a disused quarry in defiance of notices placed warning of danger and prohibiting swimming. The learned judge cited the following from Lord Hoffmann's speech in paragraph 34 in that case as follows: 

“34. My Lords, the majority of the Court of Appeal appear to have proceeded on the basis that if there was a foreseeable risk of serious injury, the Council was under a duty to do what was necessary to prevent it. But this in my opinion is an oversimplification. Even in the case of the duty owed to a lawful visitor under section 2(2) of the 1957 Act and even if the risk had been attributable to the state of the premises rather than the acts of Mr Tomlinson, the question of what amounts to "such care as in all the circumstances of the case is reasonable" depends upon assessing, as in the case of common law negligence, not only the likelihood that someone may be injured and the seriousness of the injury which may occur, but also the social value of the activity which gives rise to the risk and the cost of preventative measures. These factors have to be balanced against each other.
…So this appeal gives your Lordships the opportunity to say clearly that local authorities and other occupiers of land are ordinarily under no duty to incur such social and financial costs to protect a minority (or even a majority) against obvious dangers.”

On the appeal this morning Mr Petts has relied upon that passage and indeed upon others in the Congleton case in challenging the learned judge's findings.

12.	The question that the judge posed for himself and his conclusion on that question appear in paragraph 18 and 19 of the judgment as follows:

“18. So the question for me is whether this case falls within the ambit of the kind of situation Lord Hoffmann and their other Lordships in Tomlinson had in mind or whether, in all the circumstances of the case, it was reasonable for the Second Defendants to take further steps to see that users of the path in question were reasonably safe in using the path for the purposes for which they were permitted to be there. In deciding this issue, I must consider the degree of care/want of care which would be ordinarily looked for in a user of the path.

19. After careful consideration, I have concluded that the Second Defendants were in breach of their common duty of care towards the Claimant. I appreciate that there had been no previous similar accidents.   I also accept that in broad daylight the width of the verge rendered the path reasonably safe for use. The problem, however, was that at night the path was unlit. Anyone inadvertently straying off the path at night, whether they be on bicycle or on foot, was in real danger. No warning signs of that danger had been placed at the start of the path. The fence clearly provided a precautionary barrier for part of the distance but anyone using the fence as a guide in the dark could inadvertently walk into danger. This situation was not, as Mr Petts submits, a remote possibility. It was, in my judgment, a very real possibility. Moreover, the cost of extending the fence along the 100m down to the pedestrian crossing near Jewson’s was not great, even for a local authority subject to the familiar financial restraints. It could easily have done in 2001 when the fence itself was erected. Mr Barrett recognised the very real danger evident to a sensible, practical person. His manager failed to recognise it. In my judgment, it is no answer to say there had been no previous accidents on this stretch of the path. The position had to be looked at afresh, particularly in the context of a well-used but unlit footpath and cycle track open to the public at night time. In my judgment, fencing off the vertical drop would have been a proportionate reaction to the situation faced by the local authority in 2001.”  

(D)	The Appeal
13.	In the grounds of appeal on behalf of Penwith, it is submitted by Mr Petts for Penwith that the judge was wrong to have found that it was in breach of its duty of care under Section 2 of the 1957 Act.  The two grounds are as follows: 

"…the learned judge: 
(a) wrongly concluded that the risk of an accident such as happened to the Claimant (a pedestrian straying from the path at night by following the fence and falling off the edges of the verge onto the road below) was a ‘very real possibility’, instead of a remote possibility;
(b) further or alternatively, wrongly concluded that in all the circumstances the risk was such that the Applicant ought to have taken steps to prevent a pedestrian falling off the edge of the verge by erecting a fence along the 100m in question and/or erecting warning signs at the bottom of the path."

Those grounds are supplemented by a helpful skeleton argument and oral submissions from Mr Petts, which can be summarised, I think, in these terms.  Mr Petts submits that the judge made too much of Mr Bassett's evidence.  It is argued that Mr Bassett's concerns were in fact for cyclists and young children and not for adults negotiating this path at night without a torch and, to some degree, under influence of alcohol.  Further, it was not foreseeable that someone would use this fence as a handrail, as the claimant did, and not appreciate that it was there for some quite different purpose. Even if a person was holding onto the rail, he or she should be expected to have noticed that he or she had left that path and was now on grass.  Further, the claimant should have known from passing up the path only a few minutes before and, as Mr Petts adds to us this morning, that from her familiarity of the area from driving along this road on a regular basis she should have known what the layout was, and there was no fence immediately abutting the path for some considerable part of its length.  Further, it is submitted, Mr Croft the claimant's partner had gone ahead of the claimant with no difficulty in following the correct route.

14.	Mr Douglas, in equally helpful submissions, makes the short point that the judge made unimpeachable findings of fact that the scene presented a real danger to someone straying off the path inadvertently, whether on a bicycle or on foot, and that the risk that the claimant's fall which actually occurred was a very real possibility.  It was a finding of real risk supported by the evidence of Mr Bassett and was in accordance with common sense.

15.	Mr Douglas submits that this is a very simple case.  This was, he submits, a very dangerous situation, a two-metre drop close to the path and, as he put it, an accident waiting to happen, and recognised as a danger: see again the evidence of Mr Bassett.  Mr Douglas also relied upon a passage in the cross-examination of an engineer witness, called for Penwith, a Mr Verran, where he recognised a danger.  However, Mr Petts referred us to a further passage in which Mr Verran, while recognising the possibility of such a danger, in his opinion, took the view that it was not a danger that was of such a degree that required action on the part of the council.

(E)	My conclusion
16.	I turn to my own conclusions on the matter.  As the judge put it, substantially the claim against Penwith was in respect of an alleged breach of a common duty of care under Section 2 of the 1957 Act.  To remind myself, Section 2.2 of the Act provides: 

"The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there."

17.	The question for us is whether it was open to the judge on the evidence and correct for him to hold that Penwith was in fact in breach of that duty.  I have considered, in this context, the role of this court in considering the judge's evaluation of the facts as found by him and the assessment as to whether or not there was a breach of duty.  I have borne in mind the well-known passage in the speech of Lord Hoffmann, which is not cited to us but is one with which all judges are familiar, in Biogen Inc v Medeva plc [1997] RPC 1, dealing with the distinct advantage of a trial judge in hearing cases of this sort.  To this I would add a further passage from the judgment of Mance LJ, a case also not cited to us of Todd v Adam [2002] EWCA Civ 509, to which I am grateful to my Lord, Lewison LJ for having provided me the reference.  

18.	However, the case that was cited to us in this context was one in this court called Clare v Perry [2005] EWCA Civ 39, a case very much in the context of the matter that we have to consider, where Pill LJ said this at paragraph 29:

"The facts of this case, as found by the judge, are not in dispute, and Mr Grice makes no attempt to urge different findings. In determining whether, on particular facts, the standard of care has fallen below that required of an occupier, the court will, of course, pay considerable respect to the judgment of the trial judge, but is required to assess for itself whether, on the evidence and the findings of the judge, a breach of duty has occurred."

Bearing in mind those principles, I look at the judge's evaluation of the result for the primary facts as found by him.

19.	The judge clearly had in mind the passage to be found in the judgment of Lord Oaksey which I have already quoted, stating that an ordinary careful man does not take precautions against every foreseeable risk but against risks which are likely to happen.  The judge found that it was a very real possibility that somebody using the fence as a guide could inadvertently walk into danger.  He considered that this was not a remote possibility but a real one, and he relied upon the evidence of Mr Bassett, whose concern, as I have mentioned, had been expressly for cyclists and, as he put it, young kids on bikes, and also children who "might run around at that point and come to harm".

20.	There had, however, been no such accident as envisaged by Mr Bassett, and he was not envisaging a person like the claimant under the influence of alcohol using the fence as a handrail at night without a torch and straying from the metalled footpath over grass for over four metres as far as the drop.  There was nothing to indicate that the view of Mr Bassett's manager had been unreasonable in all the circumstances in thinking a fence, to meet Mr Bassett's actual concerns, was unnecessary.  

21.	The judge said that fencing off the vertical drop would have been a proportionate reaction to the situation faced by the local authority in 2001, but the question remains: a proportionate reaction to what?  At that time, Penwith were faced with a landslip and the collapse of a small stretch of the verge edge abutting the road.  This brought the edge of the path very close to the collapsed area and the drop created by the collapse.  The concern then must have been to prevent people straying or falling down the landslip into the road, hence the fencing: see for example the statement of Mr Mike Peters, paragraph 9 in the appeal bundle, tab 16, page 92.  There was no concern, actual or apprehended, at that stage as to dangers on other stretches of the pathway, beyond the fenced area towards Hayle, where a substantial two-metre wide verge remained.  After the landslip area was passed, there was nothing suggesting to Penwith at that time that further fencing was required.  Indeed, the suggestion might be that a path without a fence which had a drop of this height always had to be fenced upon the entirety of the length.  For my part, I do not accept that.

22.	In my judgment, the evidence did not warrant a finding that Penwith were unreasonable in failing to foresee as likely and guard against an accident of the type that occurred here as being likely.  For my part, I cannot accept the judge's premise that it was necessary to envisage someone using the fence as a guide in these circumstances or that the reasonable person in the position of Penwith would have seen this as a likely possibility.  It will be obvious to a pedestrian in following the fence, as the claimant did, after a very short time that he or she had departed the metalled path and was crossing a considerable distance of grassed area.  With respect to the judge, and after exercising caution in assessing his evaluation of the case, I do not consider the evidence warranted a conclusion that Penwith was in breach of a common duty of care, and for those reasons I would allow the appeal and dismiss the action.

Lord Justice Lewison:

1.	I agree.  Section 2(2) of the Occupiers Liability Act 1957 provides: 

"The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there."

2.	Section 2(3) provides so far as material: 

"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."

3.	In paragraph 19 of his judgment, in which the judge considered whether Penwith were in breach of a common duty of care, he nowhere referred to the degree of care which would ordinarily be looked for in a visitor. 

In Thompson v Hampshire County Council [2004] EWCA Civ 1016, Rix LJ said at paragraph 31: 

"Neither ditch nor culvert nor pathway were out of repair or in disrepair: it was simply that a walking path right next to a ditch presented certain dangers, at any rate at night in the absence of any illumination such as a torch. However, this is just such a natural danger to the user of a highway as he must be prepared to overcome by his own natural caution, and the taking of precautions: just as drivers must similarly take care against the hazards of road layouts. No driver would go out on an unlit road at night without the means of illuminating the road."

4.	That passage in my judgment has particular resonance in our case.  Here the claimant was out late at night, having had a few drinks, on an unlit road, without a torch and in new and uncomfortable flip flops.  In my judgment, the judge left out of account, in considering whether Penwith were in breach of duty, a highly material factor, namely what degree of care could be expected of an ordinary visitor. 

5.	That, in my judgment, therefore vitiates his evaluation.  In agreement with my Lord, McCombe LJ, I agree the facts do not warrant the imposition of liability on Penwith, and I too would allow the appeal.

Lord Justice Laws:

6.	I agree with both judgments.

Order:  Appeal allowed