Billings (A. C.) & Sons Ltd v Riden
| Jurisdiction | England & Wales |
| Judge | Viscount Simonds,Lord Reid,Lord Cohen,Lord Keith of Avonholm,Lord Somervell of Harrow |
| Judgment Date | 25 July 1957 |
| Judgment citation (vLex) | [1957] UKHL J0725-1 |
| Date | 25 July 1957 |
| Court | House of Lords |
[1957] UKHL J0725-1
Viscount Simonds
Lord Reid
Lord Cohen
Lord Keith of Avonholm
Lord Somervell of Harrow
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause A. C. Billings and Sons Limited against Riden, that the Committee had heard Counsel, as well on Tuesday the 18th, as on Wednesday the 19th and Thursday the 20th, days of June last, upon the Petition and Appeal of A. C. Billings and Sons Limited, of 54 Winchcombe Street, Cheltenham, in the County of Gloucester, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 26th of July 1956, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the printed Case of Ethel Maud Riden (Widow), lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 26th day of July 1956, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondent the Costs incurred by her in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.
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.
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 going to 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-à-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 overlooked 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 access 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 by giving 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...
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