Harris v Birkenhead Corporation
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MEGAW,LORD JUSTICE LAWTON,LORD JUSTICE ORMROD |
| Judgment Date | 12 November 1975 |
| Judgment citation (vLex) | [1975] EWCA Civ J1112-2 |
| Date | 12 November 1975 |
| Court | Court of Appeal (Civil Division) |
[1975] EWCA Civ J1112-2
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(Revised)
(From: Mr. Justice Kilner Brown - Liverpool)
Lord Justice Megaw
Lord Justice Lawton and
Lord Justice Ormrod
Mr. MICHAEL NORLAND, Q. C. and Mr. CHARLES JAMES (instructed by Messrs. Berrymans, Agents for Messrs. Weightmans, Liverpool) appeared on behalf of the Appellants the First Defendants.
Mr. GERALD CROWE, Q. C. and Mr. DAVID CLARKE (instructed by Messrs. William Easton & Sons, Agents for Messrs. Percy Hughes & Roberts, Birkenhead) appeared on behalf of the Respondent Plaintiff.
Mr. GERARD WRIGHT, Q. C. and Mr. MICHAEL BYRNE (instructed by Messrs. Byrne Frodsham & Co., Widnes, Cheshire) appeared on behalf of the Second Defendant, Respondent to Plaintiff's cross-appeal.
The infant plaintiff, Julie Harris, was 4½ years old when, on 6th March, 1968, she fall from a second-storey window of a derelict house, 239 Price Street, Birkenhead. She was very seriously injured. She, through her next friend, brought an action against the Mayor, Aldermen and Burgesses of the County Borough of Birkenhead as first defendants; and against Mrs. Jessie Kathleen Gledhill as second defendant. Two third parties and a fourth party were added to the proceedings.
The action was tried before Mr. Justice Kilner Brown at Liverpool. On 16th December, 1974, he gave judgment for the plaintiff against the first defendants for £20,000. That was the amount which had been agreed by all parties concerned to be the proper sum of damages on the assumption that any party was held to be liable. The learned judge gave judgment for the second defendant against the plaintiff with costs, but he directed that those costs should be paid by the first defendants. The learned judge's formal judgment also contained provisions as to the third party and fourth party proceedings with which we are not concerned.
The first defendants appeal. They contend that the judge was wrong to hold them liable. There is a cross-appeal by the plaintiff, contending that, if the first defendants' appeal should succeed, then the plaintiff, contrary to the learned judge's decision, should have judgment for £20,000 against the second defendant. There is also an amended notice of cross-appeal on behalf of the second defendant to which in the circumstances it is unnecessary to refer.
The facts relating to this tragic accident are set out in the learned judge's judgment, which is reported in (1975) 1 Weekly Law Reports 379. On one matter of evidence, counsel for the first defendants criticise the judge's finding. I shall refer to that point later. In other respects, no criticism is made of the judge'sfindings; and the facts are substantially undisputed. I shall, however, summarise what appear to me to be the facts which are relevant for the purpose of this appeal.
Julie Harris lived with her mother at 157 Beckwith street, Birkenhead. Almost opposite the house was a Children's playground, Vittoria Court. On the afternoon of 6th March, 1968, the little girl's mother took her to the playground. Julie and another small girl wandered away from the playground. They made their way along Moreton Street, which is a designated children's play street. At the end of Moreton Street they entered the house 239 Price Street, the front door of which is in fact in Moreton Street at the comer with Price Street. The door was open or broken down. The whole house was in a derelict condition, with broken windows. The two little girls made their way up the stairs to a room on the second floor. Julie must have climbed on to the window-sill, which was only about 2 feet above the floor of the room. The window was open, or the glass broken, or both. Julie fell from the window-sill to the floor below, some 30 feet. These facts are by way of reasonable reconstruction of what must have happened. No one, so far as I know, noticed the children entering the house. But the fall from the window was seen by a passer-by.
It is accepted on all aides that Julie Harris must, in law, be regarded as a trespasser in the house at the time of her accident. On her behalf It was sought to establish that either the first defendants, whom I shall call "the Corporation", or the second defend ant Mrs. Gledhill, or both, was or were in law to be treated as the occupier or occupiers of 239 Price street at the time of the accident; and that, being an occupier, the Corporation or Mrs. Gledhill, or both, was or were in breach of a duty owed to the trespassing infant-plaintiff.
How had the house come to be in this ruinous condition,unsecured? What was the basis on which it was sought to make the Corporation, or Mrs. Gledhill, liable? What was the connection of each of them, respectively, with the ruinous 239 Price Street, which might involve the status of occupier at the time of the accident?
Mrs. Gledhill had become the owner of the house in 1956. She had employed a firm of estate agents, Messrs. Bailey & Neep, to manage the property on her behalf. They were responsible to her, presumably for finding tenants, and for collecting the rents, and having necessary repairs carried out.
For some time - I do not think it matters how long - before July, 1969, Mrs. Gledhill's tenant in 239 Price Street had been a Mrs. Redmond. She was a good and careful tenant. Until the end of 1967, when Mrs. Redmond left and the house became empty, 239 Price Street had been kept in very good condition, despite what had been happening to property round about.
Much of the property in Price Street and neighbouring streets had fallen into decay. In 1966 the Corporation decided to make a compulsory purchase order under section 43 of the Housing Act, 1957. Section 43 is in Part III of the Act, which is concerned with Clearance and Redevelopment. The Order, made on 26th August, 1966, and confirmed by the Minister on 15th May, 1967, was known as the "County Borough of Birkenhead (Cottage Street Clearance Area) Compulsory Purchase Order, 1966". It covered buildings in a substantial area, including Cottage Street, at least a part of Price Street, and some neighbouring streets and alleys. The Minister's confirmation of the Order involved an amendment which took 239 Price Street outside the Clearance Area. That house was still covered by the Order, and was subject to compulsory purchase, but that was not on the basis that it itself was unfit for habitation. As I have said, it had been kept in good condition. Nevertheless, with the rest of the neighborhood, It was to be compulsorily purchased so that the whole area might be used for building blocks of flats.
On 3rd July, 1967, the Corporation served on Mrs. Gledhill a notice to treat and, at the same time, a notice of entry in respect of 239 Price Street. On the same date a notice of entry in the same terms was served on Mrs. Redmond, the tenant. A covering letter, in substantially similar terms, was sent to each of these ladles by the Corporation. Nothing turns on the terms of the notice to treat. It was a necessary preliminary step towards the assessment of compensation for the compulsory purchase. The terms of the notice of entry are important. I refer to page 16 of Bundle P1. It is headed "The Housing Act 1957". It is further headed "Notice of Intention to Enter". It is addressed to Mrs. Gledhill. A corresponding notice, of the same date, was sent to the tenant: it was addressed to "The Occupier". There are two recitals, the first of which recites the Order made on 26th August, 1966, and confirmed by the Minister of Reusing, (it would seem that the wrong date was given for that confirmation; but nothing turns on that). The second recital says: "Notice to Treat for the said property was served upon the owners of the said property on the third day of July 1967". It then said: "Now therefore the Council in exercise of the power conferred upon them by Paragraph 9 of Part 2 of the Third Schedule to the Housing Act, 1957, Hereby give you Notice that they will upon the expiration of fourteen days from the service of this Notice upon you enter on and take possession of the said property described In the Schedule hereto". As I have said, that notice was dated and served on 3rd July, 1967. The schedule referred to 239 Price Street.
So there was, in the clearest terms, an averment that the Corporation would, upon the expiration of 14 days from the service of that notice, which is to be taken as having been served on 3rd July, enter upon and take possession of 239 Price street, which, of course, involved an assertion by implication of a legal right in the Corporation so to do. The purported statutory authority for this notification, peremptory and unambiguous in its terms, was paragraph9 of Part 2 of the 3rd Schedule to the Housing Act, 1957. Paragraph 9 had in fact bean repealed by section 39 (4) and Schedule 8 to the Compulsory Purchase Act, 1965, the commencement date of which, by section 40 thereof, was let January, 1966. The purported statutory authority no longer existed. But it has, as I understand it, been agreed between the parties that that misstatement in the notice of entry of the purported statutory authority does not matter. It is not suggested that the misdescription by the Corporation of the statutory power matters, since statutory power did exist. For paragraph 9 had, in effect, been replaced by section 11 of the Compulsory Purchase Act, 1965. The relevant part of station 11 (1) of that...
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