Dunster v Abbott
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SOMERVELL,LORD JUSTICE DENNING |
| Judgment Date | 13 November 1953 |
| Judgment citation (vLex) | [1953] EWCA Civ J1113-3 |
| Court | Court of Appeal |
| Date | 13 November 1953 |
[1953] EWCA Civ J1113-3
Lord Justice Somervell
Lord Justice Denning
Lord Justice Romer
In The Supreme Court of Judicature
Court of Appeal
MR MONTAGUE BERRYMAN, Q.C. and MR MARTIN JUKES (instructed by Messrs. Hair & Co.,) appeared on behalf of the Appellant (Defendant).
MR GERALD GARDINER Q.C. and MR HOWARD SABIN (instructed by Miss Betty Harris) appeared on behalf of the Respondent (Plaintiff).
This is an appeal from a Judgment of Mr Justice Ormerod. An action was brought by the Plaintiff in these circumstances. The Plaintiff was canvassing for advertisements for the covers of a telephonebook. The Defendant was a builder who lived and carried on business at premises on the road from Canterbury to Whitstable. It is an unlighted road. There are a number of houses along the road, some of which had been built by the Defendant, who was a builder. There was a ditch which ran between the houses and the rood, and in the case of the Defendant's house there was a concrete bridge over the ditch. The ditch was the property of the local authority, the Council. There are no railings at the side of the hedge in between the posts of his gate and the railings which run along the side of the road. There is a small 6-inch concrete wall which also runs along the drive and is continued on to the bridge. The Plaintiff, who was in the neighbourhood staying with his brother, was minded to see whether the Defendant would care to take advertising space on the outside of the cover for telephone directories. There is, says Mr Gardiner for the Plaintiff, some confusion as to exactly where his visits were before the final visit when the accident happened. The builder's yard, the place where the Defendant kept his stores and so on, is adjacent to the bungalow and is to be reached from the back of the bungalow by going through a gap in a hedge, over a field and through another gap in another hedge through another field. It is marked on the plan "workshop". There there is the office and stores and the normal things which one expects to find in a builders yard. The whole including the house is called Broadlands.
It seems quite clear that the Plaintiff went first to the builder's yard and the Defendant was not there. The Plaintiff was told by a man where he lived, in the bungalow which was adjacent. He paid a first visit to the bungalow and it is not clear, and the difficulty certainly cannot be resolved in this Court, as to whether, as everybody thoughtbelow, including his own Counsel, he went through the gate to the bungalow or whether he went through the business premises and over the fields. He spoke to the Defendant's wife who said her husband was out but would be back about six. The Plaintiff came back. The Defendant was there having his tea. They had a short conversation and the Defendant said he was not interested. Then the Defendant opened the door and the Plaintiff went out. There is a light which is shown by the photograph at the edge of the garage. It was a 60-watt lamp which obviously threw some light down the drive towards the road where the ditch, which I have described, was. I should perhaps have said that the Defendant had left the light on when he heard from his wife that somebody had called and was coming back later. It was obviously useful to direct people on a dark and rainy night up the drive to the house. The Defendant having seen the Plaintiff from the door and out towards the drive then shut the door and did what he usually did when people left. He left the light on for what he estimated to be the time which would enable them to get to the road and then he turned it off. The Plaintiff when the light was turned off, according to his own evidence, thought he was on the road. It is fairly clear that what had happened was that he had got to the concreted surface which begins not with the pavement of the road but with the bridge. Having got there, thinking he was on the road, he turned to the right which was the way he was going and the next he knew he was in the ditch. Probably he tripped over the little concrete ledge. He sued the Defendant for damages.
There was debate below and before us as to whether he was an invitee or a licensee. The learned Judge, I think, did not think it made much difference. He found in favour of the Plaintiff subject to a deduction for the Plaintiff'sown negligence and there is an appeal and cross-appeal. As it was argued on both sides I will say a word or two about it. The learned Judge came to the conclusion that the Plaintiff was an invites. Mr Gardiner says with force that one ought not to distinguish between the house and the business premises as they were connected. Although we did not hear Mr Berryman in reply, I will assume for the purposes of what I am going to say, without deciding it, that that distinction in the circumstances of this case does not avail the Defendant. On that basis Mr Gardiner submitted that anyone who comes to business premises with the hope that business in which he is interested will result should be regarded as an invitee. I think that is defining the character much too widely. In Pearson v The Lambeth Borough Council reported in 1952 King's Bench Division, page 253, Lord Justice Asquith, as he then was, said: "It is more exact to say that an invitee is a person who comes on the occupier's premises with his consent on business in which the occupier and he have a common interest". I do not think when the Plaintiff came on the Defendant's premises that night that he and the Defendant had a common interest. He no doubt hoped, wrongly as it turned out, that a common interest might result but they had not at that time a common interest. It is said that there is very little authority on this point and in particular no cases dealing with commercial travellers. It may be if a case arose about commercial travellers, evidence might be given as to the practice and custom in the particular trade which might or might not bring them within Lord Justice Asquith's words. But I am dealing with this particular case. Here was a man who was hoping that he might find the Defendant was interested in this advertisement. I think that he was a licensee. If he was a licensee, taking words from a Judgment of Lord Justice Hamilton, as he then was, in Latham v Johnson, 1913 I king's Bench, page 411, "The rule as to licensees, too, is that they must take the premises as they find them apart from concealed sources of danger; where dangers are obvious they run the risk of them. In darkness where they cannot see whether there is danger or not, if they will walk they walk at their peril". I do not think this...
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